Colorado judge’s ruling makes no argument that Trump 'didn't engage in an insurrection': legal expert

Retired Judge J. Michael Luttig, a conservative critic of Donald Trump, has been arguing that because of Section 3 of the U.S. Constitution's 14th Amendment, Trump is disqualified from running for president. Section 3 states that an "officer" who has "engaged in insurrection or rebellion against the United States" is allowed to hold public office.

Colorado is among the states where the courts have been examining the question of whether or not Trump, under the 14th Amendment, can be excluded from the state's ballot. On Friday, November 17 in Colorado, District Judge Sarah B. Wallace ruled against keeping Trump off that ballot. Yet Wallace was highly critical of Trump in her ruling and didn't disagree that his efforts to overturn the 2020 presidential election results amounted to an insurrection.

University of Baltimore law professor and former federal prosecutor Kimberly Wehle examines the complexity and nuances of Wallace's ruling in an article published by the conservative website The Bulwark on November 20.

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Wallace, Wehle notes, ruled that Trump "knew his claims of voter fraud were false," "put forth no evidence at the Hearing that he believed his claims of voter fraud despite the overwhelming evidence there was none" and "knew that his supporters were angry and prepared to use violence to 'stop the steal' including physically preventing Vice President Pence from certifying the election."

Yet Trump, Wehle writes, "won the case anyway." And it came down to Wallace's understanding of what the word "officer" means in the 14th Amendment.

"In Judge Wallace's view," Wehle explains, "'officer' does not include the office of the president of the United States because, first, there are other provisions in the Constitution that use the word 'officers' in a way that indicates the president is not to be considered one, and second, if the 14th Amendment's framers really wanted to include presidents, they would have said so explicitly."

Wehle continues, "Because the law says nothing about how Section 3 actually works, judges are all over the place as to why Section 3, so far, can't keep Trump off state ballots…. As Judge Wallace's well-written opinion makes clear, there's no serious factual or legal argument that Trump didn't engage in an insurrection. The real legal fight remains around the word 'officer' — for which there's no clear answer in the text of the Constitution itself — and whether the entire thing should stay out of the courts and left to voters, the Republican Party, and Congress."

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Kimberly Wehle's full article for The Bulwark is available at this link.