There are a lot of reasons to question the decision of the Colorado Supreme Court to boot former President Donald Trump off the primary ballot for insurrection under the 14th Amendment.
The most obvious was that he hadn't been convicted or even charged with insurrection, and certainly not under the federal statute that applied to insurrection for the 14th Amendment. He hadn't received any due process in Colorado's pronouncement that he committed insurrection. He had no criminal trial or jury. Then there's the question of whether the provision even applies to a president. The district court judge in Colorado said she couldn't boot Trump because it wasn't clear that it did apply to presidents.
On top of that, as George Washington Law professor Jonathan Turley noted, there was no insurrection — it was a protest that became a riot, and even Special Counsel Jack Smith didn't go there in terms of a charge against Trump. Turley called the decision the most "anti-democratic opinion in decades." Not only was there no insurrection, but Trump urged people who were going to the Capitol to act "peacefully and patriotically." Not exactly a call to rebellion. Plus, it was a pretty poor insurrection without any guns, means, or desire to overthrow the country. People who were there didn't want to overthrow the country; they believed they were protesting/trying to fix something that had been done incorrectly.
READ MORE: Jonathan Turley Rips Apart the Colorado Decision Booting Trump Off the Ballot
But there was another troubling aspect of the decision that hasn't gotten as much attention. It was bad enough to skip over due process in not only taking away the rights of Trump but the rights of millions to vote for him. But then there was also a concerning free speech question that could put anyone at risk of being accused of "insurrection" if you follow the Colorado Supreme Court's logic and precipitate people on both sides of the aisle trying to remove the others.
They point to Trump using the term "fight" to suggest he was calling for an insurrection.
The Colorado Supreme Court quoted Trump's January 6 speech 'fight like hell' passage six times in its decision. Quoted Trump's 'peacefully and patriotically' line once, to dismiss. Trial judge didn't even do that. She wrote that Trump speech 'did mention 'peaceful' conduct,' but… pic.twitter.com/6eIABNcXfr
— Byron York (@ByronYork) December 23, 2023
Journalist Byron York noted the following:
The Colorado Supreme Court quoted Trump's January 6 speech 'fight like hell' passage six times in its decision. Quoted Trump's 'peacefully and patriotically' line once, to dismiss. Trial judge didn't even do that. She wrote that Trump speech 'did mention 'peaceful' conduct,' but then judge relied on college professor to dismiss it on basis of 'context and pattern' of Trump effort to 'develop and deploy a shared coded language with his violent supporters.' (The Thompson reference in the CO Supreme Court decision was a case involving the J6 Committee.)
Never mind that "fight" is a common term people use in political discourse that has nothing at all to do with violence or insurrection. The Colorado Supreme Court pumped it up to be bad because that's where they wanted to go.
By the same token, they dismissed the fact that Trump encouraged people to act "peacefully and patriotically." The plain language of what Trump said kills their case. So they dismissed it. The district court twisted it into "coded language" for his "violent supporters" by relying on some college professor's interpretation. Up is down, and down is up; words mean whatever we say they mean and no longer have their normal meaning. So you can lose your rights, and even the words that exonerate you will be twisted against you. Referring to decisions like this as the stuff of banana republics seems like an understatement.
But beyond this, if you can do this to Trump, you've opened the door to anyone being accused of "insurrection" by this kind of chaotic logic and assault on speech. Due process would become a thing of the past.
I think it's likely we will be saved from that by the Supreme Court, and hopefully, they specifically call out the nonsense I've noted here. But it's shameful that the Colorado Supreme Court would even come up with anything so egregious.
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