Supreme Court decision may hang in part on semantics; for example, was Jan. 6 event at the Capitol an insurrection? A riot?

By Michael O’Looney

Colorado’s appeal to remove Trump from the 2024 primary ballot is now being deliberated by the U.S. Supreme Court. Colorado argues that because Trump engaged in an insurrection, he should be disqualified from holding office, according to the 14th Amendment, Section 3, of the U.S. Constitution.

The problem is that, in interpreting this provision, the court will need to clarify a handful of other legal issues related to the amendment, one of which is to first determine if what happened on Jan. 6, 2021, was an insurrection or, as Trump’s lawyers argue, simply a ”riot.” And there are other issues connected to Colorado’s lawsuit that will need to be clarified and decided on as well, a formidable task for the nine individuals laden with the responsibility to interpret our Constitution.

Trump’s lawyers claim there was no insurrection, only a riot. However, Colorado’s Supreme Court labels Trump an insurrectionist and found that he “actively primed the anger of his extremist supporters” and “acted with the specific intent to incite political violence.”  

Seven deaths

Let’s not forget either that seven people died in the aftermath of Jan. 6; 718 others have pleaded guilty to federal charges; 123 have been charged with carrying “dangerous or deadly weapons” into the Capitol.

What happened on that unforgettable day was no more a riot than it was “a legitimate political discourse” or a “peaceful protest” as the Republicans called it. Let’s hope the Supreme Court in debating this issue calls it what it was — an insurrection.

Another problem is one of semantics. What is meant by the phrase “engaged in” which is found in the Section 3 provision of the 14th Amendment, which says “No person shall hold any office under the United States” who “previously engaged in insurrection or rebellion against the same.” A Georgia judge said that “incendiary rhetoric and “marching orders” appear to constitute engagement in an insurrection. Will the Supreme Court consider other rulings and decide if Trump “engaged” in an insurrection? Or not? It’s anyone’s guess.

The immunity question

Colorado’s case to ban Trump from the ballot is also connected to the question of presidential immunity. If the Supreme Court upholds his immunity defense, then the ex-president cannot be charged with engaging in an insurrection and he would remain on the ballot.

One might also wonder about the ex-president violating his oath to the Constitution, the one every president takes on his inauguration in which he says he will “faithfully  execute the office of the President of the United States … and will to the best of (his) ability preserve, protect and defend the Constitution of the United States.”

From what we saw on Jan. 6, he did nothing to defend the Constitution or stop the assault on the Capitol. Or rather by doing nothing he did something: he told his supporters “to fight like hell” to overturn a fair and lawful election.

Trump’s defense maintains that he was never an officer of the United States, this despite what Section 3 says that “no person shall (he) be a senator or a representative in Congress … or hold any office who having previously taken an oath as a member of Congress or as an officer of the United States” will be ineligible to hold office. This, together with his promise to “faithfully execute the office of the president of the United States,” strengthens the case that Trump is/was one who held a public office and did violate his pledge to defend the Constitution.

The ‘if’ factor

What it comes down to is that if the Supreme Court finds that Trump as president was an officer of the United States, if the assault on the capitol was deemed an “insurrection” and if the ex-president “engaged” in an insurrection through his words and actions, then he would be ineligible to run for office. A lot of ifs.

Lastly, there’s this matter about the Supreme Court’s reluctance to rule in favor of Colorado’s argument because it might set a dangerous precedent, allowing individual states to decide who could or could not be on the ballot.

Chief Justice John Roberts says that it would be “a pretty daunting consequence if states individually start banning candidates from the ballot.” Although Section 3 has recently been used to remove one state official from running for a public office after he was found guilty of taking part in in the Jan. 6 insurrection, we can presume this will not happen very often.

This is the first and only time in 154 years that Section 3 has been cited to ban a former president who engaged in an insurrection from campaigning for public office. It would not be, as Roberts seems to imply, an everyday occurrence. Not many government office holders have been found guilty of insurrection or rebellion.

 If Colorado’s case is resolved with a mind to the future, it might very well mean the Section 3 provision will be finally clarified. If the Supreme Court can look beyond Trump, perhaps they can construct a ruling that would safeguard our democracy from those who violate their oath to the Constitution and ensure that those who engage in insurrection are never entrusted to hold office again.

Michael O’Looney is a resident of Talent.