The 4–3 decision of the Colorado Supreme Court to disqualify former President Donald J. Trump from the Republican primary ballot for “inciting” an “insurrection” on Jan. 6 has provoked a great deal of commentary. Most is critical on both policy and legal grounds. Even such left-leaning pundits as Washington Post associate editor Ruth Marcus argue that a summary 9–0 reversal by the U.S. Supreme Court would be the best course forward for the country. Some even go so far as to call the Colorado decision “breathtakingly foolish.” It is that, but, as I’ll explain below, it is also lawless and dangerous. A foundational tenet of all civilized legal systems is that losers in one tribunal can’t keep going to other venues until they finally find one that will give them the result they want.
READ MORE: The Colorado Supreme Court vs. Trump
With the exception of a fine piece by Jed Babbin here in The American Spectator, much of the commentary I have seen overlooks one fundamental principle, the clearest of many grounds on which the Supreme Court should reverse — namely, that the United States Senate, sitting “as a High Court of Impeachment to consider evidence, hear witnesses, and vote to acquit or convict the impeached official,” has already acquitted Trump of “incitement of an insurrection.” That is the exact same crime for which the Colorado Supreme Court purported to find him guilty based on an abbreviated trial before a single Colorado judge with a shockingly low standard of proof. This decision cannot be allowed to stand for reasons that are well-established in the law, including the doctrine of res judicata, which is also known as “claim preclusion” or “estoppel by judgment,” not to mention the Fifth Amendment’s guarantee against double jeopardy. In common parlance, these preclusion doctrines all come down to the same basic idea that no one may be tried over and over for the same offense.
Yes, I am aware of a line of opinions by the Office of Legal Counsel at the Department of Justice maintaining that officials, including presidents, may be tried for crimes even after they are acquitted by the Senate. That position has never been ratified by the Supreme Court, and, in any case, it turns on the argument that the “purposes” of impeachment — removal and disqualification — are different from the purposes of criminal prosecution — punishment and deterring others. In the Colorado case, however, the exact same purpose — disqualification — was at issue as in the second impeachment of Trump after he had left office. No legal system that I know of allows the side that lost the first time around to keep coming back over and over for multiple bites at the apple until they finally find a tribunal that will give them the result they want. And to add insult to injury, here Trump’s persecutors maintain that they may disqualify him using procedures that do not satisfy the constitutionally prescribed standards for disqualifying presidents from holding office, as I will explain below. That’s total insanity from a legal perspective, but it is exactly what a brain-dead CNN legal commentator argues for in an article maintaining that the Supreme Court should uphold the Colorado proceeding in order to “correct” the Senate’s “mistake.” No sensible person believes that every state in the country should be empowered to “correct” the Senate’s alleged “mistakes” in impeachments using whatever procedures they may choose.
To understand the procedural issues, let’s go back a step. The disqualification clause in Section 3 of the 14th Amendment upon which the Colorado court relied lists other high government officials, including senators, members of Congress, and electors for president — but not the president. Former Attorney General Michael Mukasey has argued in an important article in the Wall Street Journal that this obvious omission was not an oversight but instead indicates that presidents are not subject to disqualification under the 14th Amendment but only through impeachment. (RELATED: No, Sen. Coons, the Colorado Case Is Not a Clear Reading of the Constitution)
Everyone who has studied the matter agrees that the original draft of what became the disqualification clause of the 14th Amendment did apply explicitly to presidents, but the language including the president was taken out in the final version. Unfortunately, the reason for the deletion was lost to history, probably because the drafters considered it obvious that a different method with a higher standard of proof already applied to disqualifying presidents from holding office, namely, impeachment by a two-thirds vote of the Senate.
The Colorado Supreme Court blows by this important drafting history, which had convinced the Colorado trial judge not to disqualify Trump, and instead makes a strained argument that the president is an “officer of the United States.” The Colorado majority ignores the fact that the U.S. Supreme Court stated flatly in a 2010 case, Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, that “the people do not vote for the ‘Officers of the United States,’” but “officers” are subsidiary officials appointed by and responsible to the president, as former White House counsel Ty Cobb has pointed out.
More fundamentally, however, the constitutionally prescribed standard for disqualification of the president from office by impeachment is a much higher one than that applied by the Colorado courts. The Constitution prescribes that “no person shall be convicted [in impeachments] without the Concurrence of two-thirds of the Members [of the Senate] present.” By contrast, the Colorado Supreme Court applied the least demanding standard of proof recognized by our law, “substantial evidence,” in purporting to disqualify Trump. The substantial evidence test is normally applied by appellate courts to review factual findings by a trial court or an administrative agency. Although it may sound weighty, “substantial evidence” is actually even less demanding than the preponderance of the evidence test applied in ordinary civil cases — and much lower than the “proof beyond a reasonable doubt” required in criminal cases. The substantial evidence test does not even require that the lower court or administrative agency must have the better of the argument; it is enough if there is “some evidence that might appeal to a reasonable mind … even though other reasonable persons might disagree.” That’s the lowest standard of proof known to U.S. law. How anomalous to imagine that it can be applied to a ruling by a single state court trial judge’s momentous decision to disqualify a candidate for the presidency who is leading in all the polls! No, the Constitution clearly establishes a higher standard of proof for disqualifying a president from holding office in the impeachment clause, a two-thirds vote of the Senate.
Having failed to obtain the required votes in the Senate to impeach Trump for “inciting an insurrection,” it is fatuous to imagine that judges or secretaries of state in all 50 states may nonetheless disqualify him based on a much lower standard of proof. It is even more ridiculous to imagine they may do so by a vote of four to four just because one of the four who ruled against disqualification sits on a trial court rather than the state Supreme Court, which is what happened in Colorado.
Chaos will reign if the Colorado decision survives as a precedent and state court judges or other officials in all 50 states may disqualify candidates of both parties willy-nilly in the future based only on substantial evidence of vaguely defined offenses such as “inciting an insurrection.” The Colorado Supreme Court decision should be summarily reversed by a 9–0 vote of the U.S. Supreme Court on the solid but narrow ground that presidents acquitted by the Senate cannot be retried for the same crime in every court in the land until their opponents finally find one that will give them the result they want.
READ MORE from E. Donald Elliott:
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