The Colorado Supreme Court heard arguments on December 6 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. Their decision 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 suit was filed 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.
