On Friday, Denver District Judge Sarah B. Wallace ruled that Donald Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.”
She concluded with this finding of fact: “Trump incited an insurrection on January 6, 2021 and therefore ‘engaged’ in insurrection.”
It’s the first official legal finding that Trump participated in an insurrection.
The case was brought by people who are trying to keep Trump off the ballot under Section 3 of the 14th Amendment to the Constitution. (They’re hoping ultimately to secure a U.S. Supreme Court ruling that keeps Trump off the ballot in all states. The cases are moving quickly because caucuses and primaries will be held starting in January.)
Section 3 of the 14th Amendment prohibits anyone to “hold any office” under the United States who has previously “taken an oath … to support the Constitution,” if they “have engaged in insurrection” against the United States.
Although Judge Wallace made a finding of fact that Trump engaged in an insurrection, she decided he could still appear on the Colorado ballot because she interpreted Section 3 of the 14th Amendment not to apply to Trump. Why? Because, she said, Section 3 of the 14th Amendment does not specifically mention the presidency, and it applies only to those who swear an oath to “support” the Constitution while the oath Trump took when he was sworn in after he was elected in 2016 was to “preserve, protect and defend” the Constitution.
(For those of you who want to take a closer look at the intellectual somersaults Judge Wallace went through to reach this legal conclusion, here’s the full text of Section 3 of the 14th Amendment:)
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
So, is this the end of it? Not at all.
Judge Wallace’s decision will be appealed. And here’s what you need to keep in mind: Appellate courts defer to district court judges’ findings of fact. Which means that on appeal, Judge Wallace’s finding that Trump incited an insurrection is likely to stand.
Yet appellate courts do not defer to district court interpretations of law or the Constitution. Which means that on appeal, Judge Wallace’s convoluted interpretation of Section 3 of the 14th Amendment may not be affirmed.
Note that Section 3 of the 14th Amendment has already been used to disqualify an insurrectionist from continuing to hold public office in New Mexico — with the state’s Supreme Court upholding the ruling.
This case may well end up in the Supreme Court. (Wallace’s ruling came a week and a half after the Minnesota Supreme Court ruled Trump could not be removed from the primary ballot in that state and three days after a Michigan judge reached the same conclusion.)
Let’s be clear. Section 3 of the 14th Amendment was enacted because the nation decided it must never again trust someone with public office who once swore an oath to uphold the U.S. Constitution but then violated that oath by inciting an insurrection against the United States.
Donald Trump fits that concern precisely. He cannot ever again be trusted to hold public office. Having once incited an insurrection against the United States, there’s every reason to suppose he’d try again.
Judge Wallace’s factual finding is correct — and critically important.
What do you think?