The backdoor insurrection conviction will not stand
The Colorado Supreme Court yesterday decided that Donald Trump “engaged in an insurrection or rebellion” on or about Jan. 6, 2021. Under the 14th Amendment to the Constitution, he is therefore ineligible for the presidency and would be removed from the Colorado ballot.
A few points to consider:
The Court on its own volition stayed its order until Jan. 4 to give Trump an opportunity to appeal the case to the real Supreme Court, the United States one. If he does so, and he will, and the Supreme Court decides to hear the case, and they will, then the order is further stayed until the Supreme Court issues its decision this spring or summer.
The Colorado Supreme Court is comprised of seven justices. All seven were appointed by Democrat governors. The U.S. Supreme Court has a materially different composition. Six of the nine justices are Republican appointees.
Notwithstanding that the Colorado Supreme Court is unanimously Democrat appointees, their decision was 4-3. Three of the seven Democrat-appointed justices sided with Trump. The Colorado decision is contrary to decisions in Minnesota and Michigan, whose supreme courts are also majority Democrat appointees.
It’s fair to say that the Colorado decision is an outlier, even among Democrat jurists.
The 14th Amendment was a post-Civil War amendment primarily for the purpose of establishing equal protection and voting rights for Blacks. It has been interpreted much more broadly than that, however, most recently by the Supreme Court in the Harvard case outlawing discrimination against Asians in college admissions.
The Insurrection Clause of the 14th Amendment was designed to prohibit Confederacy soldiers from holding state or federal offices, including the presidency. The specific words expressing that prohibition are “No person shall . . . hold any office . . . who . . . shall have engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.”
The Insurrection Clause has never before been applied in a court of law.
There are two problematic issues with the Colorado decision, one substantive and one procedural. The substantive one is whether Trump’s actions around Jan. 6 amounted to an insurrection, rebellion or aid or comfort to such.
People tend to side one way or another on this issue depending on their overall political leanings. I personally think the stupid hooligans at the Capitol that day were vandals more than insurrectionists. It’s hard to believe they thought they were truly overthrowing the United States government. As the current President has snarked, you need F16s to do that, not a buffalo robe.
That said, it was not Trump’s finest hour. He did little to dissuade the hooligans from their hooliganism, and he pressured Mike Pence as Vice President to refuse certification of the electoral college votes on the grounds that there had been a massive fraud. It was arguably Trump’s least-finest hour, and that covers some ground. And I say that as someone who voted for him twice.
On the other hand, no less than Rudy Giuliani, a man for whom I had tremendous respect at the time, assured us – and presumably Trump as well – that there was indeed enough fraud to overturn the election, and that he had the proof. But even if that had been true, the remedy is in the courts, not the street.
(Incidentally, Giuliani’s proof was never forthcoming. There was certainly the usual amount of fraud, and maybe more, but there’s no proof that it was enough to overcome Biden’s win. The notion that the courts never allowed such evidence to be presented is mostly incorrect and, in any event, it did not stop Giuliani or others from presenting their evidence to the court of public opinion. But they didn’t. Even to this day, they have not offered proof of enough fraud to overturn the election.)
The second issue dogging the Colorado decision is that rebellion and insurrection against the United States is a federal crime. Trump has not been tried or convicted of any such crime. To say “we all know he’s guilty from what we’ve read online” is not how the American justice system is supposed to work.
For a state court judge and then the supreme court of that state to, in effect, convict him of that crime without a jury or even a trial on that crime, but instead as an ancillary issue in a different kind of proceeding, is unfair. It’s a backdoor insurrection conviction.
As such, it’s probably a violation of another key element of the 14th Amendment, the Due Process Clause. That clause declares that no state shall “deprive any person of life, liberty, or property, without due process of law.”
Unlike the insurrection clause, the Due Process Clause has been applied thousands of times.
Now, let’s forget about the legalisms for a moment. The Supreme Court is always conscious that its power is like gasoline in a gas tank. The more of it they use, the less of it they have. They’re still smarting from criticism over the 5-4 decision in Bush v. Gore back in 2000. Chief Justice Roberts is especially wary about overreaching by the Court.
Their instinct will be to let the people, not the courts, decide Trump’s fitness for office. They’ll reverse the Colorado decision not on substantive grounds that he did not engage in an insurrection, but on Due Process grounds that he never got his day in court.
That would effectively end the matter. Even the most serious of the criminal cases against Trump do not charge him with insurrection. So, he probably won’t get his day in court on the insurrection crime because he’s never been charged with it.
What he will get is his day at the polls next Nov. 5. That’s as it should be. This is too important for judges to decide. It’s a matter for the people.
Glenn Beaton practiced law in the federal courts, including the Supreme Court. The views herein are his alone, and should not be attributed to any other person or organization.
Note to my readers: I’ve disabled comments on this post because I was getting many vitriolic ones about the parenthetical in the piece on the alleged fraud in the 2020 election. Not all the comments on that parenthetical were vitriolic, but too many were. Ive never had to do this before, and hope never to do it again.