For the past three years, prosecutors, courts, and congressional committees have attempted to finish Donald Trump.
But there is no legal shortcut: His fitness to be president is now for the voters to decide. It would be particularly explosive to disqualify Trump from the ballot after more than a year of campaigning, at the end of which he leads in the polls.
Such a drastic step should be taken only on the most definitive legal grounds.
The Colorado supreme court, in trying to disqualify Trump under Section 3 of the 14th Amendment, has no such mandate. Incitement has never been a basis for disqualification under Section 3, so the court had to stretch its language to claim that Trump “engaged in” an insurrection on January 6 through his lassitude and a few tweets during the riot.
But as U.S. attorney general Henry Stanbery wrote in 1867, “the force of the term to engage carries the idea of active rather than passive conduct.”
The 4–3 decision divided even the Colorado justices, all of them appointed by Democratic governors. It likely now heads to the U.S. Supreme Court ahead of the January 5 deadline to set the Colorado primary ballot.
