Our recent book is titled Divided We Stand: The 2020 Elections and American Politics. Among other things, it discusses the state of the parties. The state of the GOP is not good. Trump and his minions falsely claimed that he won the election, and have kept repeating the Big Lie. And we now know how close he came to subverting the Constitution.
A Colorado judge ruled on Friday that former President Donald J. Trump could remain on the primary ballot in the state, rejecting the argument that the 14th Amendment prevents him from holding office again — but doing so on relatively narrow grounds that lawyers for the voters seeking to disqualify him said they would appeal.
With his actions before and during the Jan. 6, 2021, attack on the U.S. Capitol, Judge Sarah B. Wallace ruled, Mr. Trump engaged in insurrection against the Constitution, an offense that Section 3 of the 14th Amendment — which was ratified in 1868 to keep former Confederates out of the government — deems disqualifying for people who previously took an oath to support the Constitution.
But Judge Wallace, a state district court judge in Denver, concluded that Section 3 did not include the presidential oath in that category.
The clause does not explicitly name the presidency, so that question hinged on whether the president was included in the category “officer of the United States.”
The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.
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Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and leaders using similarly strong, martial language, such as calling on supporters to “fight” and “fight like hell.” The Court acknowledges the prevalence of martial language in the political arena; indeed, the word “campaign” itself has a military history. See, e.g., Claiborne Hardware Co., 458 U.S. at 928 (“Strong an effective extemporaneous rhetoric cannot be nicely channeled into purely dulcet phrases.”). This argument, however, ignores both the significant history of Trump’s relationship with political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on, January 6, 2021. It further disregards the distinct atmosphere of threats and calls for violence existing around the 2020 election and its legitimacy. When interpreting Trump’s language, the Court must consider not only the content of his speech, but the form and context as well. See Id. at 929 (noting that, if there had been “other evidence” of Evers’ “authorization of wrongful conduct,” the references to “discipline” in his speeches could be used to corroborate that evidence).
