Major ruling looms after Colorado Supreme Court hearing on whether the ‘insurrectionist ban’ applies to Trump
By Marshall Cohen, CNN
(CNN) — The Colorado Supreme Court heard arguments Wednesday in a closely watched case about whether the US Constitution’s ban on insurrectionists holding public office applies to former President Donald Trump because of the January 6, 2021, US Capitol riot.
The seven-member court appeared divided at times, pushing back on arguments from both Trump and the challengers who want to remove him from Colorado’s presidential ballot in 2024. The justices didn’t say when they will issue their decision, which is expected to be appealed to the US Supreme Court, no matter which way they rule.
With support from bipartisan legal scholars, liberal groups filed lawsuits across the country to enforce the 14th Amendment’s insurrectionist ban. A new suit was filed Wednesday in Oregon during the Colorado hearing. But so far, these cases have fallen flat, keeping Trump on the ballot in Minnesota, Arizona, Michigan and elsewhere.
The Colorado justices grappled with a key question: Does the ban apply to presidents?
They are reviewing a ruling from Colorado District Judge Sarah Wallace, who presided over a bench trial last month, and concluded that Trump “engaged in an insurrection” on January 6, 2021. However, she also ruled that the 14th Amendment’s disqualification clause doesn’t apply to Trump because the provision doesn’t mention the presidency.
“If it was so important that the president be included, I come back to the question, why not spell it out?” Justice Carlos Samour asked a lawyer for the challengers. “Why not include president and vice president? … They spelled out senator or representative.”
Two other justices pointed out that other provisions of the Constitution don’t appear to include the president when they refer to federal officers, pushing back on a key pillar of the challengers’ case. The challengers claimed the disqualification clause covers the presidency because it bans insurrectionists from “any office … under the United States.”
But later, when questioning Trump lawyer Scott Gessler, some justices said it wouldn’t make sense for there to be a loophole allowing insurrectionists to become president.
“I saw no rational reason for that type of an exclusion,” Justice Monica Marquez said.
Several of the justices also hammered Gessler over his contention that January 6 was only a riot and wasn’t an insurrection. The 14th Amendment doesn’t define insurrection, and the justices are now reviewing the trial judge’s decision that January 6 fit the bill.
“We would argue that on the scale of violence, and duration of scope, and organization, the events of January 6 were more like a riot, and far less than a rebellion,” Gessler said during the two-hour hearing. “And insurrection is far closer to rebellion than it is (to) riot.”
An attorney for the anti-Trump challengers, Jason Murray, said the 14th Amendment is a “self-defense mechanism” to stop insurrectionists from undermining the republic. He said exempting the presidency would defeat the “core purpose” of the provision and allow Trump to “subvert our democracy from within” by returning to the White House.
All seven justices on the Colorado Supreme Court were appointed by Democratic governors, though that doesn’t necessarily indicate how they’ll handle the case.
“The justices struggled with whether Colorado courts even have power to hear cases like this,” said Derek Muller, an election law expert at Notre Dame Law School who filed a brief that was neutral on disqualifying Trump. “But if they get over that hurdle, they seemed poised to reverse the district court and find that the presidency is covered.”
Some justices acknowledged that their decision will surely be reviewed by the US Supreme Court, which could settle the matter for the nation as 2024 approaches.
CNN’s Devan Cole, Andi Babineau and Jeremy Harlan contributed to this report.
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