Colorado Judge Sarah Wallace has become the latest jurist to
reject the effort to bar former president Donald Trump from the ballot
under the novel 14th Amendment theory.

I have long been a vocal critic of the theory, which I view as historically and legally unfounded. I also view it as arguably the most dangerous theory to arise in decades.

While
Wallace reached the right conclusion, she committed, in my view,
fundamental errors in her analysis on the free speech elements of the
case.

The
case involves a chilling effort of Democratic Secretary of State Jena
Griswold to use her office to prevent voters from being able to cast
their ballots for Trump, one of the leading candidates for the
presidency. Like other challengers, she claimed to be protecting
democracy by denying voters the ability to vote for their preferred
candidate on the basis of this dubious theory. Polls show Trump and Biden in a statistical dead heat at 42% (Biden) to 38% (Trump) which is within the margin of error.

Judge Wallace rejected the use of the amendment to prevent voters from voting for Trump in the 2024 election,
declaring that “[t]he Court holds there is scant direct evidence
regarding whether the presidency is one of the positions subject to
disqualification.”

In her 102-page ruling, Wallace declared that
“[a]fter 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. It appears to the Court that for whatever reason the
drafters of Section 3 did not intend to include a person who had only
taken the Presidential Oath.”

Accordingly, “[t]he
Court orders the Secretary of State to place Donald J. Trump on the
presidential primary ballot when it certifies the ballot on January 5,
2024,”

The scope of the provision is one of the
inherent questions presented by this theory. There is also the problem
with the limitation of Section 3 to those “engaged in insurrection or
rebellion against the same.” It then adds that that disqualification can
extend to those who have “given aid or comfort to the enemies thereof.”
These challengers argue that Jan. 6 was an “insurrection” and Trump
gave “aid and comfort” to those who engaged in it by spreading election
fraud claims and not immediately denouncing the violence.

Most of the public do not agree with that assessment. In polling, most view Jan. 6 for what it was: a protest that became a riot. One year after the riot, a CBS News poll showed
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.

On Jan. 6, I was contributing to the coverage and
denounced Trump’s speech while he was still giving it. But as the
protest increased in size, some of us noted that we had never seen such a
comparatively light level of security precautions, given the weeks of
coverage anticipating the protest. We then watched as thinly deployed
police barriers were overrun and a riot ensued. It was appalling, and
most of us denounced it as it was unfolding. However, it was not a
rebellion or insurrection in my view.

Section 3 of the 14th
Amendment — the “disqualification clause” — was written after the 39th
Congress convened in December 1865 and many members were shocked to see
Alexander Stephens, the Confederate vice president, waiting to take a
seat with an array of other former Confederate senators and military
officers. That was a real rebellion in which hundreds of thousands died.

While Judge Wallace reached the right result, I have major qualms with her analysis.

She states as a fact that Trump was guilty of incitement, a charge that no prosecutor has ever brought against him. That includes the D.C. Attorney General who
announced his intention to pursue such charges. It also includes
Special Counsel Jack Smith who threw every other possible criminal
charge against Trump.

Nevertheless, Judge Wallace concludes that Trump “incited imminent lawless violence.”

She further found that:

“[i]n
addition to his consistent endorsement of political violence, Trump
undertook efforts to undermine the legitimacy of the 2020 presidential
election well in advance of the election, making accusations of
widespread corruption, voter fraud, and election rigging.”

As
such, she finds that his speech was not protected by the First
Amendment. While I am a critic of Trump’s speech and actions on that
day, I still believe that the the court is completely wrong on the First
Amendment.

In Brandenburg v. Ohio, the Supreme Court
ruled in 1969 that even calling for violence is protected under the
First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”

It
is common for political leaders to call for protests at the federal or
state capitols when controversial legislation or actions are being
taken. Indeed, in past elections, Democratic members also protested elections and challenged electoral votes in Congress.

The fact is that Trump never actually called for violence or a riot.
Rather, he urged his supporters to march on the Capitol to express
opposition to the certification of electoral votes and to support the
challenges being made by some members of Congress.

He expressly told his followers “to peacefully and patriotically make your voices heard.”

Trump also stated:

“Now
it is up to Congress to confront this egregious assault on our
democracy…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.”

He
ended his speech by saying a protest at the Capitol was meant to “try
and give our Republicans, the weak ones … the kind of pride and boldness
that they need to take back our country. So let’s walk down
Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.

As
I have discussed previously, the Ku Klux Klan leader Clarence
Brandenburg referred to a planned march on Congress after declaring that
“revengeance”
could be taken for the betrayal of the president and Congress. The
Supreme Court nevertheless overturned his conviction. Likewise, in Hess v. Indiana,
the court rejected the prosecution of a protester declaring an
intention to take over the streets, holding that “at worst, (the words)
amounted to nothing more than advocacy of illegal action at some
indefinite future time.” In NAACP v. Claiborne Hardware Co., the
court overturned a judgment against the National Association for the
Advancement of Colored People after one official declared, “If we catch
any of you going in any of them racist stores, we’re gonna break your
damn neck.” That was ruled as the hyperbolic language of advocacy.

Judge
Wallace dismissed such arguments and holds that “while Trump’s Ellipse
speech did mention “peaceful” conduct in his command to march to the
Capitol, the overall tenor was that to save the democracy and the
country the attendees needed to fight.”

The decision comes just days after another defeat in Michigan for advocates of this theory.

Had Wallace used this analysis to find in favor of disqualification, I believe that she would have been eventually reversed. As
it stands, we will have to wait to see if Griswald has the confidence
of her convictions to appeal. I hope that she does. We need to put this
insidious legal theory to rest with the finality and clarity of a
Supreme Court decision.

Here is the opinion: Anderson v. Griswald

Authored by Jonathan Turley,