Legal scholars are divided on whether officeholders who participated in events in Washington, D.C. on January 6, 2021, could be barred from seeking public office following a decision by the Colorado Supreme Court to disqualify former President Donald Trump from the state ballot in 2024.
Trump spoke at a “Stop the Steal” rally on Jan. 6, calling for the overturn of the 2020 presidential election results that he lost to Joe Biden, following which his supporters stormed the U.S. Capitol building. The Colorado Supreme Court concluded that Trump was ineligible to be on the state ballot under Section 3 of the Fourteenth Amendment to the U.S. Constitution, with legal experts being divided over whether the ruling could extend to other candidates who, on that day, advocated to overturn the election. (RELATED: ‘Impeachable’: Legal Experts, GOP Lawmakers Warn Biden Against Invoking 14th Amendment On Debt Ceiling)
“Other officials who took part can be disqualified. Last year Couy Griffin, a County Commissioner in New Mexico [who] was part of the crowd at the Capitol, was removed from office under Section 3,” Gerard Magliocca, a professor at Indiana University’s Robert H. McKinney School of Law and expert on constitutional history, told the Daily Caller News Foundation.
The ruling in the case Magliocca referenced, New Mexico, ex. rel. v. Griffin, was upheld by the state’s supreme court on procedural grounds in February 2023, and a federal court has not yet ruled on the matter.
BREAKING — California Lieutenant Governor Eleni Kounalakis calls on the CA Secretary of State to “explore every legal option to remove former President Donald Trump from California’s 2024 presidential primary ballot.” pic.twitter.com/S8OsJfB4iC
— Citizen Free Press (@CitizenFreePres) December 20, 2023
Other experts believed that the Colorado ruling’s reasoning could not be used by other states to bar candidates who participated in any way, including those who entered the Capitol on that day.
“I think they shouldn’t be able to say that … that’s not an insurrection,” Richard Epstein, the Laurence A. Tisch Professor of Law at New York University, told the DCNF. “The idea that you can have an unarmed insurrection, where the president is not even in the room, and that lasts for a grand total of three hours, it’s just kind of crazy … criminal trespass is a serious offense, but it’s not an insurrection.”
Epstein argued that the U.S. Supreme Court, which may grant certiorari to review the Colorado decision, ought to issue a clear decision that prevents any disqualifications due to the events of Jan. 6, regardless of the level of participation.
“This thing is going to proliferate and when the Supreme Court should write it, I think it should write it in a way which essentially exempts everybody who’s been involved in this, for one form or another, from any kind of criticism. On the insurrection, it just has to shut this stuff down completely,” he said.
“Democratic members previously sought to have up to 120 Republican members barred from Congress under the same theory and provision. The lack of a limiting principle in the opinion is one of the most chilling aspects. This ruling, if upheld, would fundamentally alter our political system and create a dangerous instability or uncertainty for future elections,” Jonathan Turley, a professor at The George Washington University Law School, told the DCNF.
Currently, Republican Rep. Derrick Van Orden of Wisconsin is the only sitting member of Congress who attended Trump’s rally and stood outside the Capitol on Jan. 6 after having taken an oath of allegiance to the U.S. Constitution in his capacity as a non-commissioned officer in the U.S. Navy. He assumed office and was seated by the House of Representatives on January 3, 2023, when the 118th Congress began its regular term.
The Colorado decision’s reasoning would not apply to those who have never held public office and who participated in the events on Jan. 6 given the Fourteenth Amendment’s language, one scholar indicated.
“[N]othing in this decision or in the Disqualification Clause could extend to persons who did not previously take an oath to support the Constitution (e.g., a private citizen running for office for the first time),” Laurence Tribe, the Carl M. Loeb university professor emeritus at Harvard Law School, told the DCNF.
Previously, several state officials in New Hampshire, Michigan and Minnesota had declined to block Trump from appearing on the ballot amid petitions to do so from left-wing activist groups, such as Citizens for Responsibility and Ethics in Washington (CREW), which led the litigation effort in Colorado.
“It’s just nuts! Nuts!” Epstein told the DCNF.
The U.S. Department of Justice did not immediately respond to a request for comment.
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