Insurrection decision: A short legal analysis

A court in Colorado recently held that (1) DJT engaged in an insurrection via his role in fomenting the 1/6 coup attempt, but (2) the 14th Amendment insurrection clause does not apply to a president, so therefore, (3) DJT can stay on the ballot in Colorado for the 2024 election. On first blush, that was a huge disappointment. However two legal experts argued that this decision is bad for DJT because of the first holding that DJT engaged in an insurrection. 

They said that, (a) no matter how the judge decided, this lawsuit would be appealed to the USSC, and (b) holding #1 is devastating for DJT because it is very hard for an appeals court to overturn the evidence findings of a trial judge.

Trial courts is the place where facts are found and their legal implications analyzed.

Appeals courts are the place where challenges to legal decisions are raised, with minimal questioning of the trial court's fact findings. What the facts mean for legal outcomes is what the appeals courts focus on. That means that unless a panel of Trump judges hear the appeal, they are unlikely to dispute the facts the trial court used to make its decision.  

If this case reaches the USSC with the insurrection holding intact, it weakens DJT's argument that he should not be tossed off the ballot in all 50 states. In essence, the experts argued that the trial court decision forced DJT to appeal the holding that he engaged in an insurrection. Reporting by The Hill seems to confirm that DJT is being forced to appeal:

Trump, plaintiffs appeal Colorado 14th Amendment ruling

Former President Trump and the group of plaintiffs battling over whether the former president should be disqualified from the Colorado ballot under the 14th Amendment both appealed the case to the state’s top court Monday.

A Colorado judge ruled Friday that Trump had engaged in insurrection by inciting the Jan. 6, 2021, Capitol riot, but the judge tossed the lawsuit by finding the 14th Amendment doesn’t apply to the presidency.

Trump in his appeal to the Colorado Supreme Court said he agreed with the latter part of the ruling keeping him on the state’s ballot but is appealing on other issues.  

Left-leaning group Citizens for Responsibility and Ethics in Washington (CREW), which filed the lawsuit on behalf of four Republicans and two independent Colorado voters, asked Colorado’s top court to rule that the amendment does indeed apply to the presidency.  

Colorado District Judge Sarah Wallace said that language means the amendment can’t be used to prevent Trump from appearing on the ballot, regardless of whether the then-president’s actions on Jan. 6 cleared the threshold.

Wallace ruled the presidency was not an “office … under the United States,” because the amendment explicitly lists all federal elected positions, except for the presidency and vice presidency. Wallace further ruled Trump was not an “officer of the United States” in the first place, referencing other constitutional provisions that distinguish the presidency from federal officers.

At this point, it appears to be almost certain that the insurrection case will be decided by the USSC. The case just has to pass through the Colorado state supreme court first. Trump does not want that holding of insurrection to be a stain on his public record.