By Ryan Morgan and Steve Lance
The Colorado Supreme Court’s order removing former President Donald Trump from the state’s election ballot appears designed to exhaust the former president and harm his reputation, but will likely fail if the U.S. Supreme Court agrees to review the case, according to former U.S. Department of Justice official Jeffrey Clark.
On Tuesday evening, the Colorado Supreme Court ruled that even though he has not been convicted of a specific criminal charge, President Trump’s efforts to dispute the 2020 election results—including speaking to crowds of supporters before the breach of the U.S. Capitol on Jan. 6, 2021, but telling them, “You have to go home now; we have to have peace,” after learning of the breach in a since deleted social media post—constituted insurrectionist activity and he should thus be disqualified under Section 3 of the 14th Amendment of the U.S. Constitution. Section 3 of the 14th Amendment, also known as the “disqualification clause,” states that officials who have sworn oaths to uphold the Constitution who then engaged in insurrection or rebellion are disqualified from holding office.
Mr. Clark, who served as an assistant U.S. attorney general during the Trump administration, called the Colorado Supreme Court’s ruling into question in an interview with NTD’s “Capitol Report” on Wednesday. In addition to serving in the Department of Justice during the Trump administration, Mr. Clark had also supported President Trump’s efforts to challenge the 2020 election results and is currently facing criminal charges in the Washington D.C. federal court and a Georgia state court over allegations that he was part of a conspiracy to unlawfully upend the 2020 election.
“This is a massive denial of due process, the most fundamental way and the easiest way to see that President Trump has not been convicted by a criminal jury unanimously of insurrection,” Mr. Clark told “Capitol Report.”
Mr. Clark further argued the Colorado courts that had heard the disqualification case relied too heavily on the report by the now-defunct House Committee investigating the Jan. 6, 2021, Capitol breach.
“The entire January 6 committee made a mockery of due process. There was no cross-examination of any witnesses. There were no Republicans appointed by the Republican conference who had lawyers who could ask questions of the witnesses,” he said. “It was just a unilateral process by seven Democrats and two token Republicans who all had announced that they hated President Trump and they wanted him to be convicted in the second impeachment trial. So that’s not the kind of government report you can rely on.”
The Colorado Supreme Court determined that the composition of the House Jan. 6 Committee did not pose a bias that undermined its investigative conclusions, because the two Republicans who sat on the committee—Reps. Liz Cheney and Adam Kinzinger—were “duly elected Republicans” and the Republican conference had sufficient opportunities to place its own members on the committee despite then-House Speaker Nancy Pelosi (D-Calif.) rejecting several Republican recommendations.
The Colorado Supreme Court also said the fact that many of the witnesses who testified before the House Jan. 6 committee were former Trump administration officials cut against the Trump team’s arguments that the House Jan. 6 Committee’s investigative conclusions were unfairly biased against the former president.
Case About ‘Dirtying’ Trump
Though the Colorado high court ruled that President Trump should be disqualified from appearing on ballots in the state, the court did decide to stay its ruling at least until Jan. 4, 2024. That stay could be extended if the U.S. Supreme Court grants a writ of certiorari to review the case.
Mr. Clark said the Colorado Supreme Court’s decision to stay its own ruling may render the case moot before the U.S. Supreme Court actually has the chance to decide whether President Trump could be disqualified under Section 3 of the 14th Amendment. The Colorado secretary of state has a Jan. 5 deadline to certify the state’s 2024 primary ballot, and if the stay is still in effect by then because the matter is before the U.S. Supreme Court, then the Colorado secretary of state would likely have to include President Trump on the ballot.
“If President Trump seeks review by the Supreme Court, then the state continues until the Supreme Court enters an order, well, if that takes you past January 5, and that means President Trump goes on the ballot, you can see the Supreme Court basically saying ‘What’s there for us to decide?'” Mr. Clark said.
However, while the stay may allow President Trump to appear on Colorado’s primary ballots, the issue could come up again during the general election.
Mr. Clark argued that the “peculiar” nature of the stay suggests the Colorado Supreme Court’s ruling is a form of lawfare—a term often used to describe the use of the legal system to exhaust, inconvenience, or inflict reputational damage on a targeted person by making them spend time and money fighting court battles, even when the underlying case against the targeted person is likely to fail. Mr. Clark said forcing President Trump to turn to the U.S. Supreme Court to challenge the ruling will “just continue a process of lawfare, dirtying President Trump up.”
Disqualification Clause Unclear About Presidents: Clark
Mr. Clark, speaking with NTD’s “Capitol Report” asserted similar arguments as President Trump’s lawyers, that the disqualification clause of the 14th Amendment doesn’t clearly encompass the office of the president.
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The actual language of the disqualification clause states: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”
Mr. Clark argued that if the disqualification clause were to apply to the president, it would have said so directly.
“The list starts in a hierarchy, it’s first senators, then representatives, then electors for President or Vice President, right. And then it’s any other officers … it’s not any, literally any other officer, it’s any other officers sort of as a result of this hierarchical structure, which would mean officers that are inferior to the President,” Mr. Clark said. “If they had meant to put the president on the list, they would have put the President and Vice President on the list … So it’s actually a very, you know, basic, legal form of reasoning. Anyone who had taken statutory construction in law school would recognize this argument.”
This interpretation proved convincing for Colorado Judge Sarah Wallace, who noted a draft version of the disqualification clause had included the office of the president and vice president before removing those references in the final version, and that other sections of the U.S. Constitution describe the president as a distinct office. By contrast, the majority on the Colorado Supreme Court stated it’s “most likely that the Presidency is not specifically included because it is so evidently an ‘office.'”
From NTD News
