Takeaways from the blockbuster Trump ‘insurrectionist ban’ ruling

Analysis by Marshall Cohen, CNN

(CNN) — A Colorado judge on Friday issued a stunning ruling that fell just short of removing Donald Trump from the state’s 2024 ballot based on the 14th Amendment’s insurrectionist ban.

The 102-page decision was a win for Trump, but it read more like a condemnation.

Nonetheless, it’s the latest legal victory for the GOP frontrunner, who has now defended his spot on the ballot in several key states, including Michigan and Minnesota, though appeals are underway.

The 14th Amendment, ratified after the Civil War, says officials who take an oath to support the Constitution are banned from future office if they “engaged in insurrection.” But the Constitution doesn’t say how to enforce the ban, and it has only been applied twice since 1919 – which is why many experts view these lawsuits as long shots.

Legal experts believe the Supreme Court will be asked to weigh in, one way or another, before the 2024 primaries begin.

The Colorado ruling isn’t binding on other courts, but it’s the most comprehensive fact-finding to date by a judge about Trump’s attempts to overturn the 2020 election. And it could factor into future challenges that are brought for the general election or even to block Trump from taking office if he wins next November.

Here are four takeaways from the major ruling in Colorado.

Trump engaged in insurrection, judge says

Colorado District Judge Sarah Wallace concluded – based on testimony of US Capitol Police officers, lawmakers, clips from Trump’s January 6, 2021, speech and expert testimony about right-wing extremism – that Trump engaged in the January 6 insurrection.

This was a major legal hurdle that the challengers were able to overcome. And it’s the first time that any court in the country has ruled that Trump engaged in the insurrection, a watershed moment in the quest for accountability for January 6.

Wallace determined that Trump “actively primed the anger of his extremist supporters” and “acted with the specific intent to incite political violence and direct it at the Capitol.”

She also found that Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means.”

While this lawsuit is not a criminal case, it is a highly notable finding. It aligns closely with the federal criminal charges filed by special counsel Jack Smith, who accused Trump of illegally obstructing the Electoral College proceedings.

It’s unclear how this could impact the criminal case. But very few judges in the country have examined Trump’s post-election conduct as closely as Wallace has in this litigation.

Judge rejects Trump’s free-speech defense

Notably, Wallace gave a thorough legal analysis of Trump’s incendiary speech at the Ellipse. She devoted 17 pages to examine Trump’s words and whether they fit the legal standard of inciting violence.

Trump has repeatedly argued that his rhetoric that day was protected speech under the Supreme Court’s precedents in First Amendment cases involving incitement. His lawyers also made that argument in Colorado.

But Wallace rejected those free-speech defenses, and instead concluded that his speech that day “was intended as, and was understood by a portion of the crowd as, a call to arms.”

“The Court finds that Trump’s Ellipse speech incited imminent lawless violence,” she wrote.

“Trump did so explicitly by telling the crowd repeatedly to ‘fight’ and to ‘fight like hell,’ to ‘walk down to the Capitol,’ and that they needed to ‘take back our country’ through ‘strength.’ He did so implicitly by encouraging the crowd that they could play by ‘very different rules’ because of the supposed fraudulent election.”

But the ban doesn’t apply to presidents

Despite all of those damning findings, Wallace ruled on narrow grounds that Trump should remain on Colorado’s ballot because the constitution’s insurrectionist ban apparently doesn’t apply to presidents.

The provision says, “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,” if they took an oath to “support” the constitution and then engaged in insurrection.

But it doesn’t say anything about the presidency. And furthermore, the presidential oath doesn’t say anything about “supporting” the Constitution – it’s to “preserve, protect and defend” the Constitution.

So, despite “persuasive arguments on both sides,” Wallace said she was “persuaded that ‘officers of the United States’ did not include the President of the United States” and that “for whatever reason, the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.”

“Whether this omission was intentional, or an oversight is not for this Court to decide,” Wallace said, noting that Trump was the first president in US history to have never served in government before ascending to the White House, meaning he never swore the oath to “support” the Constitution that lawmakers and military officers take.

Vindication for January 6 committee

The judge embraced key parts of the House January 6 committee report and said Trump’s lawyers failed to discredit its findings – despite their claims that the panel was “overwhelmingly biased” against him.

The January 6 committee, which was made up of Democrats and two anti-Trump Republicans, blamed Trump for inciting the insurrection and recommended his disqualification under the 14th Amendment.

“The Court holds that the January 6th Report is reliable and trustworthy and thereby admissible” as evidence, Wallace wrote, a crucial decision, because the anti-Trump challengers used the panel’s findings as the foundation of their unprecedented legal challenge.

For years, Trump has railed against the now-defunct January 6 committee, accusing its members of being “thugs and scoundrels” who were peddling a “monstrous lie” about his involvement in the insurrection.

His lawyers tried to convince Wallace to ignore the panel’s findings, and presented evidence at trial to rebut its conclusions that Trump knew about the violence and tried to incite the riot. But they fell short.

“Trump was unable to provide the Court with any credible evidence which would discredit the factual findings of the January 6th Report,” Wallace said.

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