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Colorado’s Trump Disqualification

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By: The Editorial Board – wsj.com – December 20, 2023

Four state Supreme Court judges ban the former President from the 2024 ballot without due process.

Anti-Trump lawyers have been peddling that Mr. Trump can be disqualified under Section 3 of the 14th Amendment. Colorado’s 4-3 Supreme Court majority is the first court to buy the argument, and in the process it has blundered into the middle of the 2024 election. The four Democratic justices join special counsel Jack Smith and New York and Georgia prosecutors in providing ironic assistance to Mr. Trump in gaining the GOP presidential nomination, and maybe the White House.

The court says Mr. Trump is disqualified under the post-Civil War 14th Amendment because he inspired and “engaged” in an “insurrection or rebellion” against the U.S. that took place on Jan. 6, 2021. They rely largely on evidence compiled by the House Jan. 6 special committee.

Mr. Trump’s behavior after the 2020 election through Jan. 6 was disgraceful, and it is one of several reasons not to trust him with so much power again. It was an attempt to obstruct the counting of electoral votes. But the evidence is unpersuasive that this amounted to an insurrection or rebellion under the statutory or constitutional meaning of those terms.

The justices claim the 14th Amendment is “self-executing,” which means that ballot disqualification doesn’t require a conviction in court. Yet the Senate acquitted Mr. Trump of the impeachment charge of insurrection. And Mr. Smith, the special counsel, didn’t include insurrection under 18 U.S.C. Section 2383 of the U.S. criminal code in his four-count indictment of Mr. Trump. Does anyone think the hard-bitten Mr. Smith would shy from doing so if he thought he could prove it before a jury?

The court’s chief justice, Brian Boatright, cited the lack of a conviction for insurrection in his dissent from the Colorado majority. And in a separate dissent, Justice Carlos Samour wrote that Mr. Trump was denied the “procedural due process” required before disqualification is justified. The 14th Amendment was written to guarantee due process to all Americans, not to deny it.

The Colorado Four also do a legal dance around the fact that Section 3’s disqualification clause doesn’t expressly include the President. As former Attorney General Michael Mukasey explained in these pages on Sept. 8, the clause applies only to those who have taken an oath “as an officer of the United States,” so Mr. Trump can’t be barred from the ballot. The Colorado majority’s contrary reading of the clause will get careful scrutiny at the U.S. Supreme Court.

The Justices could decline to hear Mr. Trump’s appeal, but given the legal and democratic stakes they almost have to take it. This is the first time any state has used Section 3 to disqualify a presidential candidate, but if it stands in Colorado it won’t be the last. A broad definition of insurrection would open the door for other potential candidates to be disqualified depending on their participation in controversial political protests.

Dragging the Supreme Court into the presidential race is itself damaging to democracy. Mr. Smith has already asked the Justices to weigh in on Mr. Trump’s claims of immunity from prosecution. Whatever the Court decides, and especially if the Justices are divided on either question, half of the country will be angry. The political left is leading a campaign to delegitimize the Court, and these fraught cases will offer more ammunition to partisans, whatever the legal merits.

The Colorado disqualification shows how Democrats are determined to make 2024 an election decided by lawyers and courts, not by voters. They seem to believe this is the way finally to banish Donald Trump from politics, but have they been paying attention?

Their second impeachment didn’t finish him, and four indictments with 91 felony counts have caused GOP voters to rally to his side. This ballot-denial gambit is likely to have a similar effect, and it will now dominate political news up to the Jan. 15 Iowa caucuses. The Colorado Four may think they’re heroes of the resistance, but they’ve given Mr. Trump a great in-kind campaign contribution.

Democrats believe that Mr. Trump is such a threat to America’s democratic institutions that they’re justified in abusing those institutions themselves. They’re damaging democracy in the name of trying to save it.

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Source: The Folly of Colorado’s Trump Disqualification – WSJ