Editorial: Is Donald Trump eligible to be president? Depends on how you define “insurrection.”

Donald Trump cannot be trusted to be America’s commander-in-chief.

The former president’s actions following the November 2020 election were so egregious that returning him to office could pose a serious threat to our democracy, but unfortunately, his insidious lies still carry a following of voters hoodwinked by Trump’s outlandish tale of election fraud. There is a real risk of him becoming the Republican nominee for president again.

Several brave and principled Coloradans, at great personal cost, are suing to keep Trump off the Colorado ballot in 2024 under the 14th Amendment’s Section 3. The trial began last week in Denver with Judge Sarah B. Wallace hearing evidence in the juryless proceeding. (One of the plaintiffs, Krista Kafer, is a regular opinion columnist for The Denver Post.)

The intent of the disqualification clause could not be clearer – anyone who has sworn an oath to the Constitution (required for federal public office holders) and then engaged in insurrection or rebellion against the United States shall be prohibited from becoming a senator, representative, president or vice president.

The legal question before Wallace is whether Trump’s attempts to stay in office, including fomenting a violent attack on Congress, after losing a free and fair election, were “insurrection” or “rebellion.” Neither term is explicitly defined in the U.S. Constitution.

“The main thing that prompted Section 3 was that they wanted to keep officials who had left to join the Confederacy from returning to office unless they showed that they deserve a second chance to return to office,” Indiana University law professor Gerard Magliocca said Wednesday in his testimony as a constitutional law expert. “There was a proposal by the Joint Committee on Reconstruction to do something to exclude people like that from positions of authority unless they demonstrated some repentance or, you know, deserved forgiveness.”

Trump maintains to this day that the 2020 election was stolen and vocally supports those who attacked the Capitol, including calling for their pardon and saying that their criminal convictions are fraudulent.

Magliocca said Section 3 was not intended as punishment but was rather adding another qualification for office. The intent among those discussing the clause during the drafting of the amendment was to exclude people who had used their official position to engage in “moral perjury” by violating their oath to uphold the Constitution.

“According to the historical sources, an insurrection was any public use of force or threat of force by a group of people to hinder or prevent the execution of the law,” Magliocca said. He cited laws, historical dictionaries from the time, and judicial records referring to treason and insurrection. Magliocca also cited historical events like the Whisky Insurrection or Rebellion where President George Washington pardoned two men convicted of treason who attempted to prevent taxation by using violence or threats. The president’s pardon specifically used the term insurrection.

Are legal scholars and attorneys fallible? Certainly, we’ve seen evidence among Trump’s close circle of confidants, but Magliocca presented the court with a calm, strong legal argument backed with original source documents that insurrection has long applied to any act using violence to interfere with government proceedings, whether it’s as small as a sin tax in the 1790s or seating the next president of the United States in 2020.

Trump used his power as president to organize and promote the “Save America March” where he and his attorneys, including Colorado’s former legal scholar John Eastman, told thousands of supporters that the election had been stolen. Trump told the crowd they would lose their country unless they “fight like hell.”

“Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we’re going to have to fight much harder,” Trump told the crowd. “And after this, we’re going to walk down, and I’ll be there with you … we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

Trump took no action to quell the uprising for three hours after his speech, despite pleas for him to intervene and to mobilize the National Guard to protect members of Congress and the U.S. Capitol building. In fact, as Senators and Representatives went into hiding, Trump was still sending angry tweets aimed at Mike Pence.

So, was it an insurrection? Defense for Trump called a witness who had captured video of the crowd at the Ellipse rally who described the crowd as being peaceful. Defense attorney Scott Gessler asked the witness if he saw people wearing BLM shirts — which we assume refers to the organization Black Lives Matter. The witness said he later saw two people in BLM shirts acting aggressively. It was a baffling line of questioning.

In response, the attorneys attempting to keep Trump off the ballot showed a clip from the end of Trump’s rally where people in the crowd began yelling “Invade the Capitol.”

Even if you don’t buy that Trump’s ultimate goal was to overthrow the government — we think it’s clear that he fabricated the election fraud as an excuse to steal public office — there is no question that he organized his supporters and called directly for them to interfere by use of intimidation with one of America’s most crucial legal proceedings, the peaceful transfer of power that occurs once the electors are counted.

Trump’s behavior in 2020 crossed a line. He didn’t just gripe and complain about the election results; he didn’t just use violent rhetoric; his words, plotting, schemes, and organization directly resulted in an insurrection. Unless Congress votes by 2/3rds majority to forgive him of this transgression, Trump is not eligible to be president.

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