Colorado Judge Says Trump 'Incited' Jan 6 Attack—But Keeps Him on Ballot

A Colorado judge on Friday ruled that former U.S. President Donald Trump "engaged in insurrection" on January 6, 2021 but allowed him to remain on the state's 2024 presidential ballot due to a disupted technicality that critics hope will be reversed on appeal.

Judge Sarah Wallace's 102-page ruling states that Trump's January 6 speech near the White House "incited imminent lawless
violence."

"Trump did so explicitly by telling the crowd repeatedly to 'fight' and to 'fight like hell,' to 'walk down to the Capitol,' and that they needed to take back our country' through 'strength,'" she wrote. "He did so implicitly by encouraging the crowd that they could play by 'very different rules' because of the supposed fraudulent election."

Wallace continued:

In the context of the speech as a whole, as well as the broader context of Trump's efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021 and his longstanding pattern of encouraging political violence among his supporters, the court finds that the call to 'fight' and 'fight like hell' was intended as, and was understood by a portion of the crowd as, a call to arms.

The court further finds, based on the testimony and documentary evidence presented, that Trump's conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.

The advocacy group Citizens for Responsibility and Ethics in Washington (CREW) and two law firms representing a group of Colorado voters had argued in their suit that "Trump is constitutionally ineligible to assume the office of the president" because he "knowingly and voluntarily aided and incited the insurrection" before and on January 6.

Enacted after the Civil War, Section 3 of the 14th Amendment—known as the insurrection clause—bars from public office any "officer of the United States" who takes an oath to uphold the Constitution and subsequently participates in an insurrection or rebellion against the U.S. government.

Wallace found that Trump, who was still president at the time, was not "an officer of the United States," and therefore could not be proscribed from holding office under the insurrection clause. This, despite citing examples in her ruling of times when the president has been considered an "officer."

Legal experts said that the technicality could be overturned on appeal. Former U.S. Defense Department special counsel Ryan Goodman wrote on social media that Trump "shouldn't be comfortable" with Wallace's decision.

CREW president Noah Bookbinder said in a statement that "when we filed this case, we knew it likely would not end at the district court level."

"We will be filing an appeal to the Colorado Supreme Court shortly," he added. "Today was not the end of this effort, but another step along the way."

Wallace's decision follows a Tuesday ruling in a Michigan 14th Amendment case in which the judge declined to address Trump's conduct while arguing that only Congress can decide whether a presidential candidate fails to meet constitutional qualifications for office, and last week's dismissal of a similar case in Minnesota.

In closing arguments in the Colorado case, Scott Gessler, an attorney for Trump—who is far and away the frontrunner in the GOP presidential primary race—argued there is "an emerging consensus here within the judiciary across the United States."

However as Ron Fein, legal director at the advocacy group Free Speech for People, noted after the Minnesota ruling, the state Supreme Court "explicitly recognized that the question of Donald Trump's disqualification for engaging in insurrection against the U.S. Constitution may be resolved at a later stage."