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In a highly controversial decision [yesterday], the Colorado Supreme Court took it upon itself to remove from the people of Colorado, and potentially the entire nation, the right to vote for the leading Republican candidate for President of the United States. With no jury trial or criminal conviction to rely on, four justices found that Donald Trump engaged in “insurrection” against the United States in relation to the events on January 6^th, 2021 at the US Capitol. The Court relied on an obscure section of the post-Civil War 14^th Amendment to the United States Constitution prohibiting former office holders who joined the Confederacy in its war of rebellion against the United States from again holding public office.

With the eyes of the nation upon it, the Court had an opportunity to preserve the right of the people of this nation to elect a president of their choosing. Instead, they removed that right, in a razor thin vote based on extremely questionable legal reasoning and a fact-finding process that lacked essential elements of due process. Sadly, their failure to protect the right of the people reinforces the perception that a dangerous oligarchy of elitists controls the politics of this nation.

Matters are made worse by the fact that the four justices who decided to take away the right of the people to vote for (or against) the leading candidate for president were all appointed to the court by a democrat governor.  Colorado is now a deep blue state, with democrats controlling all three branches of state government, and a supermajority in the State House of Representatives and nearly a supermajority in the State Senate. The Supreme Court’s decision to remove the likely republican nominee for president from the ballot will be viewed by many as another and significant evolution of the partisan abuse of the legal system against Donald Trump.

In 1868, when the 14^th Amendment was ratified, the nation was still only beginning to recover from the bloodiest, most destructive and traumatic event in its history. Over 620,000 men died in the line of duty in the Civil War, nearly 2% of the entire population of the country. Proportionately, that’s the equivalent of losing over 6 million soldiers from today’s population. Overall, 1.5 million casualties occurred from all causes. 

The Civil War was the result of an intentional, planned, and premeditated scheme of rebellion with the intention of breaking the nation apart.  

The riot of January 6^th can not be compared to the insurrection of the Civil War, and the Colorado court’s conclusion that President Trump, who was still in office, committed insurrection borders on the ridiculous. The court recites “evidence” of insurrection that essentially consists of comments where President Trump told the crowd of January 6 protesters to “fight” to save the election that was being stolen. The Court gives only passing reference to Trump’s admonition in the same speech instructing the crowd to demonstrate peacefully.  

If every politician that encouraged his supporters to “fight” for his or her election was guilty of insurrection, we would have very few politicians left. While some may say that wouldn’t be such a bad result, the fact is that Trump’s rhetoric was obviously metaphorical. Donald Trump never committed any violence, and never encouraged anyone to engage in violence.  There is no evidence that he conspired with anyone who committed acts of violence.  

The “finding of fact” that President Trump committed insurrection was not made by a jury of his peers in a criminal or civil case. Instead, it was made by a judge in the overwhelmingly democrat County of Denver, in a special proceeding instituted under Colorado’s “Election Code.” President Trump had no ability to subpoena witnesses, conduct depositions, or engage in pretrial motions in this proceeding. The state statute under which the claim was brought allowed only a truncated procedure and was designed for run-of-the-mill ballot disputes like whether a candidate lives in the appropriate district, is of the proper age, or complied with reporting and registration requirements for elections.   

Chief Justice Boatright rightly dissented from the majority, finding that the massive question of whether President Trump committed insurrection against the United States was far too complex to be adjudicated under a special proceeding of the election code.   

One final point must be made. The lower court judge in the Colorado case clearly wrongly accepted into evidence the report of the select committee of the House of Representatives on the January 6 riot. That report is clear hearsay and had no business in the factual record of a court of law. While the Rules of Evidence allow official government records to be admitted as exceptions to the hearsay rule, according to Colorado Rule of Evidence 803(8), that is only permitted if the report is “routine, factual, based on personal knowledge of public officials, and appears reasonably reliable.”

The House January 6 Committee report was anything but routine, was based on no personal knowledge, and had virtually no indicia of reliability. It is a clearly partisan document. The Committee was not engaged in objective fact finding. It was conducting political theatre, designed to compile a record to support the conclusion democrat leadership had already reached: namely that Donald Trump must be stopped from running for re-election. The members were almost all democrats. The only two republicans were avowed never-Trumper: Liz Cheney and Adam Kinzinger.  The Committee members were handpicked by Trump’s avowed enemy Nancy Pelosi. With a parade of democrat-selected witnesses, pre-edited documents and recordings, and a complete lack of due process, the notion that the “report” was reliable is absurd. The Colorado Supreme Court’s decision to affirm the admission of the report into evidence undermines its entire opinion.

Once again, all eyes now turn to the United States Supreme Court. We can only hope that they will see the matter clearly and affirm the rights of due process and the power of the people to choose their own president.