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Constitutional scholar discusses Colorado ruling barring Trump from primary ballot


A state court wants to bar Donald Trump from the presidential primary ballot in Colorado because of the January 6 attack on the Capitol. In a 4-3 decision, Colorado's highest court found that Trump engaged in insurrection, and it ruled that under a clause in the 14th Amendment to the Constitution, he is disqualified from holding office again. Back with us now to discuss the historic decision is Kim Wehle. She's a constitutional law scholar at the University of Baltimore. Kim, you're one of the first to raise the possibility that Trump's presidential run could be restrained under the 14th Amendment. Walk us through how that's being used now in Colorado.

KIM WEHLE: Well, as you indicated, the - Section 5 states - excuse me, Section 3 - that if you've taken an oath of office and engaged in an insurrection or rebellion, you can't hold it again. The issue is that there is no cause of action that's been enacted by the United States Congress. That is, there's no sort of legal hook that connects the 14th Amendment with a court case. It's just sitting out there. And so litigants are going state by state across the country, including in Colorado, and using the state law, an election law here and in the state of Colorado, to say, Trump, by virtue of the 14th Amendment, is disqualified under the Colorado law.

The lower court held an evidentiary hearing and said, yes, he engaged in insurrection and rebellion, but kind of parse the language to say presidents aren't officers within the meaning of the 14th Amendment. The Supreme Court in that split decision, the majority said, no, officer is associated with president 25 other times in the Constitution; that's not a persuasive argument just from the plain language. So he does qualify under the Constitution as disqualified, and therefore, the secretary of state cannot put him on the ballot in the state of Colorado.

MARTÍNEZ: Considering, though, he has not been charged with engaging in insurrection, how does that apply in the Colorado case?

WEHLE: Well, there's nothing in the - that part of the Constitution that requires a criminal conviction. I think the judge did her own analysis using the evidence that was presented to her, like happens under all kinds of different laws, to make a determination that the facts fit the particular definition. There is a criminal statute for insurrection floating out there that was not charged in the January 6 case by Jack Smith. And one of the dissenting justices in Colorado says, you know, if you're going to come up with a definition of insurrection, it has to be through that statute. But there's nowhere in the law that requires that. And arguably, even the January 6 committee's careful, long-standing, you know, hearings on this and its long report could constitute that ruling. There's no mandate anywhere that the definition has to be translated and applied by virtue of a criminal jury trial. That's really just an argument to narrow the scope. It's not ostensibly required under the Constitution in the history of the Constitution, this provision in the Constitution.

MARTÍNEZ: So now that Colorado dipped their toe in the water here, could other states follow?

WEHLE: Yeah. So other states already have. I mean, these cases are going on in various places, but it's the first place where a court found that he was unqualified or could not be on the ballot. In Minnesota, the court looked at Minnesota law and said, you know, actually, political parties get to decide. There isn't this link between this Constitution and being on the ballot. Michigan, the court held, well, Congress has to decide. A New Mexico court held that another person who engaged in an insurrection could not be on the ballot.

So this is all percolating based on the state law - that would be the consequence of him qualifying under Section 3 of the 14th amendment. But there is no definitive ruling on the meaning of insurrection, engage or officer. Although I think at this point, any court would be hard pressed to find that January 6 was not an insurrection and that Donald Trump didn't engage in it. So I don't think that's the strongest argument on the facts. It's really a technical argument that the process should be more rigorous...


WEHLE: ...Before a court comes to that conclusion.

MARTÍNEZ: Is this going to wind up in the Supreme Court? I know Trump says he's going to appeal.

WEHLE: Yeah. Well, you know, this would now be the third of these huge cases. Sure. They're going to take it very, very seriously because it has constitutional implications not just for this election, but for future elections. And I think there should be an incentive along the way to say to would-be presidents, listen, don't do what happened on January 6. There'll be consequences for it. But we're in a politicized world, and we have a - arguably a politicized Supreme Court.

MARTÍNEZ: So speaking of that, Kim, considering, as you said, we are in a politicized world, is there no way around it, that whatever the Supreme Court decides to do here, it's going to be seen as a political decision?

WEHLE: Well, by some for sure. I mean, think about 2000 and Bush v. Gore when the court stepped in to basically stop Florida from doing its job under Florida law. That did hurt the legitimacy of the court, and many people thought it was political. But here, you know, there are ways to make it less political. Certainly, if they step in in a split decision hold and through some sort of threading the needle that a president cannot be accountable under the 14th Amendment, that will be very political. And if it's - as I said, if it's not unanimous, that...


WEHLE: ...Would be very damaging. The court could just say, listen, this is federalism.


WEHLE: This is really about states doing this - their thing under state law. And so we're just going to wait it out.

MARTÍNEZ: Kim, thank you very much. That's Kim Wehle, constitutional law scholar at the University of Baltimore. Thanks.

WEHLE: You're welcome. Transcript provided by NPR, Copyright NPR.

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A Martínez is one of the hosts of Morning Edition and Up First. He came to NPR in 2021 and is based out of NPR West.