Trump is on the Colorado Ballot

But the First Amendment was Just Assaulted.

While President Trump will be on the ballot, there are implications for everyone else who swore an oath and participated in J6. There may also be some Jack Smith implications as well.

I want to say, I don’t think this is a win, and I have an article coming with my opinions on what it all may indicate. 

Here are the considerations, findings and conclusions from the Colorado 14th Amendment case. This has been adapted from the Twitter threads I did Saturday (11/18), and huge thanks to @threadreaderappfor their helpful tool! 

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🧵Evidence Admissibility & Considerations 🧵 

“The Court finds Mr. Heaphy’s testimony on this subject to be credible and holds that any perceived animus of the committee members towards Trump did not taint the conclusions of the January 6th Report in such a way that would render them unreliable.” (Pg, Item 26) 

“The Court further notes that nearly all Congressional investigations are initiated because there is something to investigate… In this way, Congressional investigations operate somewhat like a police investigation. The fact that the Committee members thought that Trump had instigated the attacks does not necessarily translate to the Committee not turning over every stone and thoroughly investigating the events before reaching its ultimate conclusions.” (Pg 11 Footnote)

“The findings of the January 6th Committee were unanimous, which is why there was not a minority report. This includes the two Republicans who sat on the Committee. These facts all cut against Intervenors’ argument that lack of participation of the minority party resulted in the January 6th Report reaching unreliable conclusions.” (Pg 14, Item 34) 

“Because Trump was unable to provide the Court with any credible evidence which would discredit the factual findings of the January 6th Report, the Court has difficulty understanding the argument that it should not consider its findings which are admissible under C.R.E. 803(8).” (Pg 13, Item 37) 

“The Court found Officer Hodges’s testimony to be credible. The Court gave weight to Officer Hodges’s testimony in finding that there was an insurrection and that the mob was there on Trump’s behalf.” (Pg 16, Item 39) 

“The Court holds that Congressman Swalwell’s testimony regarding his experience during the attack on the Capitol was credible. The Court gave weight to Congressman Swalwell’s testimony in finding that there was an insurrection.” (Pg 17, Item 40) 

“The Court holds that Officer Pingeon’s testimony was credible. The Court gave weight to Officer Pingeon’s testimony in finding that there was an insurrection and that the mob was there on Trump’s behalf.” (Pg 17, Item 41) 

“The Court finds that Professor Simi’s testimony was credible and helped the Court understand that while Trump’s words both before and after January 6, 2021 might seem innocuous to the average listener, they would be interpreted differently by political extremists. The Court gave weight to Professor Simi’s testimony in finding that Trump intended and incited the violence on January 6, 2021.” Pg 18, Item 42) 

“The Court finds that Professor Banks’s testimony was credible and helpful to understand the authority then-President Trump had over the D.C. National Guard as well as any authority he had over the National Guard in the adjoining states. The Court gave weight to Professor Banks’s testimony in finding that Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it, thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021.” (Pg 19, Item 43) 

“The Court finds that Professor Magliocca’s testimony clarified the history of Section Three of the Fourteenth Amendment. The Court gave weight to Professor Magliocca’s testimony in finding that Trump engaged in insurrection. The Court gave weight to Professor Magliocca’s testimony, but ultimately rejected it, regarding whether Section Three of the Fourteenth Amendment applies to former President Trump. (Pgs 19-20, Item 44) 

“The Court finds that Ms. Rudy was knowledgeable about how the Secretary of State’s office has traditionally handled qualification issues. She was extremely credible.” (Pg 20, Item 45) 

“The Court found Mr. Heaphy to be a qualified and seasoned investigator. The Court found his testimony regarding the inner workings of the Select Committee to be credible. The Court gave weight to Mr. Heaphy’s testimony in deciding to admit specific findings in the January 6th Report.” (Pg 20, Item 46) 

“The Court finds that Mr. Patel was not a credible witness.” (Pg 21, Item 47) 

“The Court finds that Ms. Pierson was credible, and the Court believes her testimony that in a meeting on January 5, 2021, Trump chose the speakers for the January 6, 2021 rally.” (Pg 22, Item 48) 

“The Court found Ms. Kremer to be credible but found her testimony to be largely irrelevant other than that she was concerned about speeches at the Ellipse inciting violence and that the January 6th Select Committee interviewed many Trump supporters.” (Pg 23, Item 49) 

“Tom Van Flein… testified that he and the Congressman… did not see any violence. The Court found his testimony to be credible but largely irrelevant.” (Pg 23, Item 50) 

The Court found Congressman Buck to be a credible witness. The Court gave weight to Congressman Buck’s testimony that… McCarthy actively prevented the January 6th Committee from being bipartisan including when he rejected Congressman Buck’s request to be on the Committee. (Oh 24, Item 52) 

“The Court notes that it is uncontested that not all attendees of Trump’s January 6, 2021 speech heard it as a call to violence. That is consistent with Professor Simi’s testimony that the language of political extremists is coded so that there is plausible deniability.” (Pg 24, Footnote) 

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🧵2: Findings & Facts 🧵

Could also be called: “Rubber Stamping the J6 Report”

“The Court finds that Trump had courted these fringe figures for many years through activities such as endorsing far-right conspiracy theories like birtherism.” — re: Bannon and Stone, Pg 30, Item 80. 

“The Court finds that Trump knew his violent supporters understood his statements this way, and Trump knew he could influence his supporters to act violently on his behalf.” Pg 31, Item 85 

“The Court notes that Trump did not put forth any credible evidence or expert testimony to rebut Professor Simi’s conclusions or to rebut the argument that Trump intended to incite violence.” (Pg 31, Item 86) 

“Trump put forth no evidence at the Hearing that he believed his claims of

voter fraud despite the overwhelming evidence there was none. The Court finds that Trump knew his claims of voter fraud were false.” (Pg 34, Item 100) 

“The Court finds that on December 19, 2020, when Trump tweeted ‘Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6. Be there, will be wild!’ he knew he had lost the election, and he knew there was no basis for Vice President Pence to reject the States’ lawfully certified electors. (Pg 37, Item 115) 

“The Court also finds that Trump’s December 19, 2020 tweet focused the anger he had been sowing about the election being stolen on the January 6, 2021, joint session. The message he sent was that to save democracy, his supporters needed to stop the January 6, 2021 joint session.” (Pg 37, Item 116) 

“With this message he justified ‘an act of war’ by claiming that is what the Democrats would do but asserted the Republicans were too weak.” — on Dec 26 tweet, Pg 38, items 121 & 122

Check out the footnote.

“Trump knew that Ali Alexander and Alex Jones wanted to speak at the rally. While Trump agreed they should not speak at the rally, there is no evidence Trump discouraged their attendance at the rally or their presence at the Capitol.” (Pg 39, Item 126) 

“The Court finds that prior to the January 6, 2021 rally, Trump knew that his supporters were angry and prepared to use violence to “stop the steal” including physically preventing Vice President Pence from certifying the election. In fact, Trump did everything in his power to fuel that anger with claims he knew were false about having won the election and with claims he knew were false that Vice President Pence could hand him the election.” (Pg 40, item 128)

Pg 43 — “proof” Trump withheld support from law enforcement to “give aid and comfort” to the “mob” of “insurrectionists.”

“The Court finds that Trump’s Ellipse speech 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.” He did so implicitly by encouraging the crowd that they could play by “very different rules” because of the supposed fraudulent election.” (Pg 45-46, Item 144) 

“…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.” (Pg 46, Item 145) 

“The Court finds that by sending otherwise non-violent protestors to the Capitol thereby increasing the mob’s numbers through his actions and words, Trump materially aided the attack on the Capitol.” (Pg 50, Item 161) 

“The Court holds that Trump’s 2:24 p.m. tweet further encouraged imminent lawless violence by singling out Vice President Pence and suggesting that the attacking mob was “demand[ing] the truth… The Court further holds that Trump’s 2:24 p.m. tweet caused further violence at the Capitol.”) (Items 170-173)

“Other than sending the two tweets at 2:38 p.m. and 3:15 p.m. which did not call off the attack, Trump did nothing between being informed of the attack at 1:21p.m. and 4:17 p.m. Instead, Trump ignored pleas to intervene and instead called Senators urging them to help delay the electoral count.” (Pg 53-54, Item 180) 

“The Court finds that Trump, as the Commander of the D.C. National Guard, had law enforcement entities at this disposal to help stop the attack without any further approval.” (Ph 54, Item 181) 

“The Court finds Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021.” (Pg 55, Item 185) 

“The Court holds that Trump’s 4:17 p.m. video endorsed the actions of the mob in trying to stop the peaceful transfer of power.” (Pg 55, Item 187) 

The Court holds that even after the attack, Trump’s tweet justified violence by calling the attackers “patriots,” and continued to perpetuate the falsehood that justified the attack in the first place, his alleged “sacred landslide election victory. (Pg 56, Item 190) 

“The Court finds that the 6:01 p.m. tweet is further proof of Trump’s intent to disrupt the election certification on January 6, 2021.” (Pg 56, Item 192) 

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🧵3: Conclusions of Law 🧵

Could also be called, “Chiseling away at the contours of the law.”

“The Court previously held that pursuant C.R.S. § 1-4-1204(4) the burden of proof in this matter is preponderance of the evidence. That is the burden the Court has applied. However, the Court holds that the Petitioners have met the higher standard of clear and convincing evidence.” (Pg 60, Item 209)

“The Court holds that the Secretary cannot, on her own accord, keep a candidate from appearing on the ballot based on a constitutional infirmity unless that constitutional infirmity is “an objective, knowable fact.” (Pg 63, Item 216) 

“Court holds that an insurrection as used in Section Three of the Fourteenth Amendment is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.

“The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of “insurrection.” (Pg 70-71, Items 240-241) 

“Court concludes that engagement under Section Three of the Fourteenth Amendment includes incitement to insurrection.” (Pg 73, Item 250) 

“…it is sufficient, for the Court’s purposes, to find that “engagement” includes “incitement.” The Court agrees with Intervenors that engagement “connotes active, affirmative involvement.”

(Pg 77, Item 256) 

“…the reason incitement falls outside of First Amendment protections is because of its quality of speech as action. Consequently, the Court sees nothing inconsistent between a requirement that a person be affirmatively, actively involved in insurrection to qualify as having engaged therein and a finding that incitement qualifies as engagement.” (Pg 77, item 257) 

“… the Court has found no case law or historical source suggesting that a conviction [of insurrection] is a required element of disqualification.” (Pg 77, Footnote) 

“The Court holds…a failure to act does not constitute engagement under Section Three… In the Court’s view engaging in an insurrection requires action whereas giving aid and comfort could include taking no action.” (Pg 78, Items 260-261) 

“Acknowledging the foregoing principles, in this Court’s view, reconciles the First and Fourteenth Amendments to the extent there is any conflict.” (Pg 87, Item 282) 

“…argument Trump made…that the Court ought to consider only the “objective meaning” of the language … Court likewise finds that “objectivity” is not a required part of the Brandenburg test.” (Pg 88, Item 283) 

“The Court finds that the specific intent necessary to sustain a finding of incitement is likewise sufficient to sustain the intent required by Section Three.” (Pg 89, Item 286) 

“The Court concludes, based on its findings of fact and the applicable law detailed above, that Trump incited an insurrection on January 6, 2021 and therefore “engaged” in insurrection within the meaning of Section Three of the Fourteenth Amendment.” (Pg 90, Item 288) 

“Court concludes that Trump acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.” (Pg 90, Item 288) 

“Court concludes that the language Trump employed was likely to produce such lawlessness.” (Pg 90, Item 288) 

“Court has found that Trump was aware that his supporters were willing to engage in political violence and that they would respond to his calls for them to do so.” (Pg 91, Item 289) 

“The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification.” (Pg 93, Item 293) 

“The Court therefore holds that the first Brandenburg factor has been established. Regarding the second Brandenburg factor, the Court finds that the language Trump used throughout January 6, 2021 was likely to incite imminent violence… The Court, therefore, finds that the second Brandenburg factor has been met… Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.” (Pg 93-95, items 294-298) 

“The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification.” (Pg 96, Item 301) 

“…the Court notes that one possible reason why the Presidency was not included in positions disqualified is that Section Three clearly disqualifies electors for the office of the President and Vice President. Perhaps, the thought process was that by excluding electors who were former oath swearing confederates, there was effectively no chance of a former confederate leader becoming President or Vice President. (Pg 97, Footnote) 

“The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as “an officer of the United States.” (Pg 100, Line 312) 

“The Court agrees with Petitioners that an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution. The Court, however, agrees with Intervenors that given there were two oaths in the Constitution at the time, the fact that Section Three references the oath that applies to Article VI, Clause 3 officers suggests that that is the class of officers to whom Section Three applies. (Pg 100, Footnote) 

“As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.” Pg 101, Item 315) 

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Conclusion

“The Court ORDERS the Secretary of State to place Donald J. Trump on the presidential primary ballot when it certifies the ballot on January 5” 

There you have it. The court found and held a lot of things that have the possibility to be affirmed in the appellate courts and used as legal precedent in other cases.

“Chiseling away at the contours of the law.”

🧵END🧵 

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