Trump opponents hope that one of several cases percolating in Colorado, Minnesota, or Michigan could force the U.S. Supreme Court to render an emergency decision on Donald Trump’s eligibility to run for president. They claim in their litigation that Trump is ineligible to appear on the ballot because he gave aid and comfort to an “insurrection” at the U.S. Capitol on Jan. 6, 2021, under Section 3 of the Fourteenth Amendment.
“This question needs to be decided ideally before any ballots are printed, and I hope and expect it will be decided in our favor,” said Ben Clements, chairman and senior legal advisor of Free Speech for People, a left-wing advocacy group funded in part by the Mark Zuckerberg-funded Silicon Valley Foundation (SVCF) and George Soros-funded Open Society Foundations.
His group spearheaded the movement to knock Trump off the ballot across the country.
The Supreme Court already rejected an appeal by Texas tax attorney John Anthony Castro seeking judgment, noting that Castro lacked standing.
The Colorado litigation poses the greatest threat to Trump. The Democratic-appointed judge in the case, Sarah Wallace, has repeatedly shown a lack of deference to Trump’s attorneys and has repeatedly swatted down their motions.
Colorado Judge’s Impartiality Questioned
The state’s Democratic Secretary of State Jena Griswold is on record as being of the opinion that the riot was an “insurrection”. Records from the Secretary of State’s office show that Wallace contributed to Griswold’s 2021 campaign while she was employed by the Ballard Spahr law firm. She also contributed to the campaign of Colorado Attorney General Phil Weiser, who is representing Griswold in the case.
Former Colorado District Attorney George Brauchler has noted this conflict of interest and unsuccessfully called on Wallace to recuse herself.
“I believe Judge Sarah Wallace is qualified, intelligent, competent and unbiased in this matter. And she should have recused herself from hearing this case. The applicable rules make clear the appearance of partiality is what matters — not whether it truly exists. These are ethical rules designed to protect the perception of the court as a fair arbiter of justice. That perception is now tarnished,” Brauchler wrote. “The first words of Colorado Code of Judicial Conduct rule 2.11 state: ‘A judge shall recuse…herself in any proceeding in which the judge’s impartiality might reasonably be questioned.’”
Wallace plans to issue her ruling on the case before Thanksgiving. Such conflicts could lead to the case being tossed by the U.S. Supreme Court in the event the justices decide to hear the case, on account of a perceived lack of impartiality on the part of the judge.
Minnesota Supreme Court Expresses Skepticism
Justices on Minnesota’s Supreme Court expressed skepticism last week, arguing that the case was political and was not something that should be settled in the judiciary.
“And those all seem to suggest there is a fundamental role for Congress to play and not the states because of that,” Chief Justice Natalie E. Hudson said. “It’s that interrelation that I think is troubling, that suggests that this is a national matter for Congress to decide.”
The Michigan case has yet to begin.
Was J6 an ‘Insurrection?
There is not any consensus as to whether what happened on January 6 was an insurrection.
“… [E]ven the view that it was an ‘insurrection’ is by no means a consensus. Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot,” George Washington University Law Professor Jonathan Turley wrote in an August 2023 column. “One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a ‘protest gone too far.’ The view that it was an actual ‘insurrection’ was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.”
Among Republicans, the tendency to define the events comes down to subjective feelings toward the former president.
“It’s very clear cut,” said Harvard Law professor and constitutional scholar Laurence Tribe, who penned an article last summer arguing for Trump’s disqualification. “The odds are that at least one state court is going to decide that the language of the 14th Amendment means what it says and says what it means, applying in this obvious case.”
“The fact that they are associated with the Federalist Society, that, unlike me, they are not liberals, I think adds credibility,” Tribe said referring to the stated opinions of libertarian Never Trump jurists.
Some participants in the Capitol riot say they were swept up in the heat of the moment and had no intent of overthrowing the government. The FBI similarly found scant evidence of an organized conspiracy to invade the Capitol building. Critics claim that what happened was due to lax security at the Capitol.
The defenders of defining January 6 as an insurrection have not tried to justify their claim legally.
Professors William Baude and Michael Stokes Paulsen, two of the jurists implied to by Tribe, admitted in their article calling for Trump’s disqualification that the term “insurrection” as they were applying it was subjective.
John Rossomando is a defense and counterterrorism analyst and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.