Colorado Judge Keeps Trump on Ballot but Finds He ‘Engaged in Insurrection’

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.”

Because of “the absence of the president from the list of positions to which the amendment applies combined with the fact that Section 3 specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the presidential oath is to ‘preserve, protect and defend’ the Constitution,” Judge Wallace wrote, “it appears to the court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the presidential oath.”

“Part of the court’s decision,” she continued, “is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3.”

She added in a footnote that it was “not for this court to decide” whether the omission of the presidency was intentional or an oversight.

Steven Cheung, a spokesman for Mr. Trump, said in a statement: “We applaud today’s ruling in Colorado, which is another nail in the coffin of the un-American ballot challenges.” He added, “These cases represent the most cynical and blatant political attempts to interfere with the upcoming presidential election by desperate Democrats who know Crooked Joe Biden is a failed president on the fast track to defeat.”

Mario Nicolais, one of the lawyers representing the six Colorado voters who filed the lawsuit in September, said he was encouraged by the narrow grounds on which they had lost — not on the substance of Mr. Trump’s actions, but on the scope of the amendment’s applicability. The voters will appeal to the Colorado Supreme Court within three days, but the United States Supreme Court will most likely have the final say.

“The court found that Donald Trump engaged in insurrection after a careful and thorough review of the evidence,” Mr. Nicolais said. “We are very pleased with the opinion and look forward to addressing the sole legal issue on appeal, namely whether Section 3 of the 14th Amendment applies to insurrectionist presidents. We believe that it does.”

Judge Wallace is the first judge to rule on the merits of whether Section 3 applies to Mr. Trump. Similar lawsuits in Minnesota and New Hampshire have been dismissed on procedural grounds, and a judge in Michigan recently ruled that the questions were political ones that courts did not have the authority to decide. The petitioners in Michigan have appealed that ruling.

Judge Wallace’s assessment of Mr. Trump’s behavior before and on Jan. 6 was damning, and, notably, she rejected his lawyers’ argument that the First Amendment protected him. His words and actions, she wrote, met the criteria set by the Supreme Court in Brandenburg v. Ohio for distinguishing incitement from protected speech.

“Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” she wrote. “Trump cultivated a culture that embraced political violence through his consistent endorsement of the same.”

Referring to his speech on the Ellipse on Jan. 6, in which he told his supporters that they needed to “fight like hell” and that they were justified in behaving by “very different rules,” Judge Wallace said, “Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder.”

The decision followed a weeklong trial in which lawyers for the plaintiffs laid out the case for disqualification in detail.

They called eight witnesses, including two police officers who responded to the Jan. 6 attack; a Democratic congressman who was in the Capitol during it; and the chief investigative counsel for the House’s Jan. 6 investigative committee, whose report the plaintiffs cited extensively. But the centerpiece of their case was the testimony of two professors.

Peter Simi, an expert on political extremism, testified that far-right groups routinely relied on implicit, plausibly deniable calls for violence, and that Mr. Trump had communicated with them in that way — an argument presented to rebut the defense that he never explicitly told anyone to storm the Capitol. And Gerard Magliocca, an expert on Section 3 of the 14th Amendment, testified that at the time it was ratified, “engaging in insurrection” had been understood to include verbal incitement of force to prevent the execution of the law.

Mr. Trump’s lawyers called one expert, Robert Delahunty, a law professor who testified that Section 3 was vague and that it should be up to Congress to define it. Their other witnesses included a former Defense Department official who said Mr. Trump had pre-emptively authorized the use of National Guard troops to prevent violence on Jan. 6 — followed by people who were at Mr. Trump’s rally on the Ellipse that day, who testified that they had not heard his words as a call to violence and that the crowd had been peaceful before part of it turned violent.