By striking Donald Trump from primary election ballots in its state, the Colorado Supreme Court was venturing into new and perilous territory. Sometimes courts have to do that, but they should make sure they are on solid ground.
The Colorado Supreme Court has invoked a provision of the 14th Amendment passed in 1868 to keep former Confederates from public office. The provision, Section 3, says that anyone who was once a public official who swore to uphold the Constitution, and then engaged in “insurrection or rebellion” against the United States, may not hold public office again.
The Constitution does not define the term “insurrection.” I’ll offer a writer’s definition. An insurrection is an uprising. It is more serious than a protest or a riot, but less than a rebellion. Like a protest, an insurrection implies a group of people who physically challenge the government. Like a riot, an insurrection implies the use of violence, trespass, or property destruction. But an insurrection implies something else: staying power. It makes a demand and holds out for it. It doesn’t last long enough to qualify as a rebellion, which can last for years, as the Confederacy did, but it lasts longer than a protest or a riot.
On January 6, 2021, many participants used violence against police. Some 2,000 of them broke into the Capitol. They banged on the doors of senators, and some of them chanted death threats against the vice president. They had a defined purpose: to terrify the Congress into not voting to certify the results of the Electoral College, and thereby prevent Joe Biden from taking office. As we now know, the occupation of the Capitol was planned, though it is less clear how much of what we saw was planned and how much just happened.
Was it an insurrection? From outside, it looked like the storming of the Winter Palace in St Petersburg. Inside, the videos showed the participants pushing their way in and stumbling around, as if they were surprised to be there. Some Republican congressman said they looked like tourists, but it was a “tourism” that included trespass and vandalism. Some of them banged on the doors of senators’ offices in a threatening way.
The “Hang Mike Pence” chants were chilling, and in no way protected by the First Amendment. Did they have a rope? It is said that some in the mob were armed, but they didn’t go in brandishing weapons or firing guns. The guards shot and killed one protester, but otherwise let them in. The intruders pushed into the Senate chamber, sat in the chairs and rifled through the senators’ papers. What they did was disrespectful, low-class, shameful, and grossly illegal.
Was it an insurrection? Maybe. The rioters did stop the senators from certifying the results of the Electoral College — but only for a while. Disrupting the proceedings was never going to stop Joe Biden from becoming President of the United States. The legislators could have held their vote anywhere. To stop the vote, the rioters would have had to kidnap the members of Congress and hold the building by force. They didn’t do that. If they had, they still would have lost, but it would have clearly been an insurrection.
More than 600 people who broke into the Capitol on January 6 have been charged with federal crimes — sedition, conspiracy, trespass, etc. — but not one, to my knowledge, has been charged with insurrection, which is defined (loosely) in 18 United States Code, Section 2383, as a federal crime. Donald Trump, who egged on the mob but was not there, has been charged with a number of things, but not with insurrection. If he were, and were found guilty, he would be barred from holding public office ever again.
But in that case, as Colorado Justice Carlos Samour pointed out in his dissent, Trump’s guilt would have to be proved at trial. Under the 14th Amendment, which is not part of the criminal code, and the Colorado Supreme Court bypassed all that due process of law and simply declared him to be part of an insurrection. Justice Samour thought it shouldn’t do that, but the majority thought otherwise.
In declaring the event an insurrection, the Colorado Supreme Court said an insurrection “need not be highly organized” at the outset and that the “dimensions of the effort [need not] be so substantial as to ensure probable success.” In other words, it could be chaotic and never have a chance to win, and still be “an insurrection.” As a journalist I think: That’s a prosecutor’s argument. It’s winning by stretching the definition. And a court can do that.
I’m reminded of a case closer to home on Seattle’s Capitol Hill — the much-heralded Capitol Hill Autonomous Zone. In June 2020, six blocks of Seattle were seized by anti-government protesters with a list of impossible political demands: Fire the police, take away their pensions, and so on. The participants declared the Autonomous Zone sovereign territory, and took over a precinct station of the Seattle Police Department. The police were kept out, and the Zone was patrolled by private guards armed with guns. Neither persons nor property were accorded full protection, and during this period of impromptu sovereignty, several persons were shot and killed.
Was the Capitol Hill Autonomous Zone an insurrection? Should a judge have barred Councilwoman Kshama Sawant, who clearly gave “aid and comfort” to the occupiers, from running for reelection? Of course, a police station in Seattle isn’t as important as the U.S. Capitol. In insurrections, size matters. Still, the action wasn’t all that different. If anything, by holding the territory for most of the month of June, the Autonomous Zone (which later renamed itself the Capitol Hill Organized Protest) was more like an insurrection that the Capitol Hill events.
As a legal matter, a protest or a riot becomes an insurrection when a court says it does. Right now, the Trump people are calling the Colorado ruling a political act by a panel of Democrat-appointed judges. If you stand in Republican boots, it does look that way. And when the U.S. Supreme Court overrules the Colorado decision, which it probably will, the Biden people will call the ruling a political act by Republican-appointed justices — and for Democrats, it will look that way.
It would have been better for the country, and for the law, had the U.S. Senate convicted Trump three years ago after his second impeachment. Then the bar for removing him from office was “high crimes and misdemeanors,” a standard that means whatever the Senate says it does.
Had the Republicans the cojones to convict him, Trump would be barred from running for President today, and the Republicans could look forward to having a nominee not under federal indictment. You can think of the Colorado Supreme Court’s ruling as a last-ditch attempt to do what should have been done in January 6.