Although it's not one of the criminal cases, the judge's order in the Colorado disqualification case is well worth reading. It gives a preview of the way that the DC insurrection case may be litigated.
The decision is divided into Findings of Fact and Conclusions of Law. The Findings give a detailed history and background of the events of January 6. They also give an assessment of the credibility of witnesses. (Sorry, Kash Patel.) The meat is in the Conclusions of Law that interpret the 14th Amendment. Some highlights:
Was the mob's action on January 6 an "insurrection?"
241. The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of “insurrection.”
242. Thousands of individuals descended on the United States Capitol. Many of them were armed with weapons or had prepared for violence in other ways such as bringing gas masks, body armor, tactical vests, and pepper spray. The attackers assaulted law enforcement officers, engaging them in hours of hand-to-hand combat and using weapons such as tasers, batons, riot shields, flagpoles, poles broken apart from metal barricades, and knives against them.
243. The mob was coordinated and demonstrated a unity of purpose. The mob overran police lines outside the Capitol, broke into the Capitol through multiple entrances, and searched out members of Congress and the Vice President who were still inside the Capitol building. They marched through the building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.
244. The mob’s purpose was to prevent execution of the Constitution so that Trump remained the President. Specifically, the mob sought to obstruct the counting of the electoral votes as set out in the Twelfth Amendment and thereby prevent the peaceful transfer of power.
Does engaging in insurrection include incitement?
256. The Court does not endeavor to fully define the extent to which certain conduct might qualify as “engagement” under Section Three of the Fourteenth Amendment; it is sufficient, for the Court’s purposes, to find that “engagement” includes “incitement.”17 The Court agrees with Intervenors that engagement “connotes active, affirmative involvement.” The definition of incitement meets this connotation. “Incitement,” as the Court has found, requires a voluntary, intentional act in furtherance of an unlawful objective; such an act is an active, affirmative one.
257. As discussed below, the reason incitement falls outside of First Amendment protections is because of its quality of speech as action. Consequently, the Court sees nothing inconsistent between a requirement that a person be affirmatively, actively involved in insurrection to qualify as having engaged therein and a finding that incitement qualifies as engagement.
Did Trump engage in insurrection and was his speech protected by the First Amendment?
298. Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.
Does Section 3 of the 14th Amendment Apply to the President?
313. Here, after considering the arguments on both sides, the Court is persuaded that “officers of the United States” did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, 19 it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath. 20
314. To be clear, part of the Court’s decision 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 Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added).21 Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.
315. As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.
19 The Court agrees with Petitioners that an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution. The Court, however, agrees with Intervenors that given there were two oaths in the Constitution at the time, the fact that Section Three references the oath that applies to Article VI, Clause 3 officers suggests that that is the class of officers to whom Section Three applies.
I think we discussed this as a possible outcome a while back -- that what appeared to be a hyper-technical argument by Trump's lawyers might be winner. But, to some extent, Trump obtained a pyrrhic victory. This technicality will not be part of the criminal cases against him. And the facts and the law laid out in the opinion are far from a win by Trump.
https://www.documentcloud.org/documents ... ion-ruling
