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People (including our own Ed Morrissey) have been saying this since the decision appeared Tuesday but I’m still a bit surprised to see the ‘s editorial board making the same case. After laying out the basis of the Colorado decision under the 14th Amendment, the board points out “the law is not so clear.” The board argues that section 3 of the Amendment should probably apply to the president (which is what the Colorado Supreme Court found) but says that doesn’t really matter unless you’ve also concluded that President Trump did in fact commit insurrection in connection with Jan. 6. And on that point, the Colorado court is way out on a limb.
The armed mob that forcibly entered the Capitol with the purpose of preventing the peaceful transfer of power, they say, was surely carrying out an insurrection. By fomenting myths of election fraud; by urging supporters at least 12 times to travel to D.C.; by exhorting them to “take back our country” when they arrived; by ignoring pleas to tell them to leave; Mr. Trump “engaged,” they say, in that insurrection, too.
As Justice Samour points out in his dissent, however, what’s missing from the majority’s analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn’t even been charged with it. Tellingly, Justice Department special counsel Jack Smith has brought an aggressive case against the former president for conspiracy to defraud the United States, obstruction of an official proceeding and more — but not for violating the federal law against insurrection.
