In addition to explicating the First Amendment, the ruling in Anderson v. Griswold (2023) shows that it is often difficult to separate a judicial win from a judicial loss.
Denver District Court Judge Sarah B. Wallace on Nov. 17, 2023, gave Donald Trump a legal victory by deciding that Colorado’s secretary of state did not have power under Section 3 of the 14th Amendment to exclude Trump’s name from Republican presidential primary balloting.
The win, however, came with a high price for other legal cases in which Trump is involved because the judge also found that Trump had incited violence by his actions and speeches leading up to and including his address to individuals who violently attacked the U.S. Capitol Building on Jan. 6, 2021.
The judge also found that Trump’s purpose was to thwart the legitimate results of a presidential election as outlined in the 12th Amendment and elsewhere in the U.S. Constitution.
14th Amendment provision applies to government officials who engage in insurrection, rebellion
This closely watched case follows others in Minnesota and Michigan in which courts ruled that they had no authority to exclude Trump from the Republican primary ballot because such a decision was a “political question” for Congress (an elected branch of government) to resolve, perhaps after the next presidential election.
The central issue in the Colorado case involved a previously little litigated provision in Section 3 of the 14th Amendment adopted in 1868. The provision was designed to exclude individuals from office who, having sworn allegiance to the United States, later joined the Confederate States of America in fighting against it. The provision arguably applies to others who engage in subsequent insurrections against the government. Section 3 reads as follows:
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 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.
It should be noted that Section 5 of the amendment further vests Congress with the power “to enforce, by appropriate legislation, the provisions of this article.”
In the Colorado case, Citizens for Responsibility and Ethics in Washington and others argued that, having incited the insurrection at the U.S. Capitol Building on Jan. 6, 2021, Trump was ineligible to be listed as a candidate for the presidency in Colorado. If Trump’s name could be excluded from the ballot, even in only a few states, this would seriously impact the likelihood that he could win the 2024 Republican nomination and the subsequent presidential election.
Colorado judge finds Trump knowingly encouraged violence on Jan. 6, 2021
The 102-page decision relied heavily on the congressional report on the events of Jan. 6, 2021, and cited other judicial precedents for relying on such evidence. In addition, the court heard days of testimony from witnesses as well as from members of Congress and scholars.
The court relied particularly heavily on the testimony of Peter Simi, a professor at Chapman University (this is ironically the same university where John C. Eastman, who was influential in Trump’s efforts to overturn the 2020 election, had been employed). Simi has a doctorate in sociology and his research and writings focus on political violence and extremism.
Citing numerous speeches that Trump had delivered, Sims testified that Trump had long been associated with calls to violence using shared language that members of the Oath Keepers, the Proud Boys, the Three Percenters and other extremist groups understood. The court heard evidence that even before Jan. 6, Trump had planted seeds of distrust as to the outcome of the 2020 presidential election and continued claims that the election had been stolen in his speech to supporters on Jan. 6. The court concluded that Trump had made such claims with knowledge that they were false.
After indicating that some of the protesters were armed, the court quoted extensively from Trump’s speech to the crowd. Acknowledging that some of the words Trump used (for example, the word “fight”) could in other contexts be interpreted metaphorically, the court relied on Simi’s testimony and that of observers of the Jan. 6 events, to conclude that “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence’ to develop and deploy a shared coded language with his violent supporters.” (p. 45).
In findings that could have a bearing on other cases, Judge Wallace examined evidence that Trump failed to restrain the rioters. Although she thought such evidence was relevant to establishing his intent, she did not believe that it constituted “an independent basis for finding he engaged in insurrection.”
Judge uses Brandenburg test went beyond insurrection
The First Amendment protection for freedom of speech gives wide leeway particularly to speech on political topics where debate is expected to be robust. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court had, modifying its earlier “clear and present danger” test, decided that political advocacy could only be punished when it was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
In analysis that rested on the totality of the circumstances and Trump’s past speeches, the Colorado judge ruled that “Trump incited an insurrection on January 6, 2021, and therefore ‘engaged’ in insurrection within the meaning of Section Three of the Fourteenth Amendment” (p. 90). She observed that he “acted with the specific intent to disrupt the Electoral College certification of President (Joe) Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence” and that “the language Trump employed was likely to produce such lawlessness” (p. 90).
Although Trump and his attorneys could hardly have been pleased with this finding, Judge Wallace proceeded to decide that Colorado could not exclude Trump from the ballot because he was not an “officer” under the Constitution. Although Wallace presented conflicting testimony on this point, she pointed to five other provisions within the Constitution (the Appointments Clause in Article II, Section 2, Clause 2; the Impeachment Clause in Article II, Section 4; the Commissions Clause in Article II, Section 3; the Oath and Affirmation Clause of Article VI, Clause 3, and the oath provision of Article VI) in which the president was distinguished from such officers.
Ruling bears similarity to ruling in Nixon pardon case
Scholars often distinguish between the “ratio decidendi,” or the rule of law on which a case was decided, and “obiter dicta,” or judges’ incidental expressions of opinion that are not directly relevant to the outcome.
Wallace’s decision that former President Trump had incited an insurrection certainly addressed an argument that those opposing his placement on the ballot had made and is therefore relevant, but having decided that Trump was not an officer of the United States, she could arguably have cut directly at that conclusion without deciding whether Trump had instigated violent activity. For that reason, the precedent may not have the same weight that it otherwise might.
The case bears an eerie similarity to a U.S. district court decision in 1975 by Judge Noel Fox in Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975). It arose after an attorney challenged the pardon that President Gerald R. Ford had given to former President Richard M. Nixon (who had resigned from office in the face of almost certain impeachment and removal) for any crimes that Nixon might have committed in relation to the break-in at the Democratic National Headquarters at the Watergate complex and its subsequent coverup.
In tracing the origin of the presidential pardon power, Fox cited Alexander Hamilton’s argument in Federalist No. 74 of the Federalist Papers that the pardon power might be used “in seasons of insurrection or rebellion.” Citing evidence that “various top officials of the Nixon Administration at times during this period deliberately and flagrantly violated the civil liberties of individual citizens and engaged in criminal violations of the campaign laws in order to preserve and expand their own and Nixon’s personal power beyond constitutional limitations,” Judge Fox concluded that “Evidence now available suggests a strong probability that the Nixon Administration was conducting a covert assault on American liberty and an insurrection and rebellion against constitutional government itself, an insurrection and rebellion which might have succeeded but for timely intervention by a courageous free press, an enlightened Congress, and a diligent Judiciary dedicated to preserving the rule of law.”
He further observed that many individuals believed that Nixon had been “the leader of a conspiratorial insurrection and rebellion against American liberty and constitutional government.”
Courts ruling could strengthen hand of prosecutors in other cases
To date, Trump has not fared very well in court.
Judge Wallace observed in her decision that courts had outright rejected 61 of 62 lawsuits in which Trump had questioned the 2020 presidential election.
Trump has also lost a defamation suit brought against him in New York by journalist E. Jean Carroll and faces yet another.
Judge Wallace’s Colorado decision will arguably strengthen the hand of special counsel Jack Smith who, in addition to indicting Trump for his handling of classified documents at his Mar-a-Lago estate in Florida, has indicted him in the District of Columbia for election interference. Although the Colorado decision does not directly affect the business fraud case by New York Attorney General Letitia James against Trump in New York, it will likely strengthen the case that the Fulton County district attorney, Fani T. Willis, has brought against Trump and a host of co-defendants in Georgia on charges that he orchestrated a criminal enterprise to overturn the election results in Georgia. A number of Trump’s co-defendants in the Georgia case have already accepted plea deals in exchange for admitting their own wrongdoing.
In combination with others, Anderson v. Griswold may well exemplify the maxim that “the wheels of justice turn slowly but grind exceedingly fine.”
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. This article was published on Nov. 18, 2023.