Is the Colorado decision a Rocky Mountain high?

By giving former President Trump the heave-ho from the primary ballot in their state, four justices of the Supreme Court of Colorado just handed the GOP the greatest Christmas present of all time.

It spared the Republican Party the shame and dishonor of nominating a criminal defendant indicted in four jurisdictions on 91 felony counts who is furiously trying to prevent a trial on the merits before the November election.

The ruling is stayed until Jan. 4, and the stay will be continued if the U.S. Supreme Court decides to step in, as it is almost sure to do. Of course, as we know the Supreme Court is not infallible, but certainly final.

The court will hear the case promptly to get it settled well before the primaries, if for no other reason than to provide a uniform national rule binding on every state and prevent electoral chaos. This is not abortion, where the court left it to the individual states to decide when life begins. We cannot have Trump disqualified in some states but not in others. And only the Supremes can straighten it out.

I predict that they will affirm. They will affirm because there is no answer to it. They will affirm because if there is any justice in the world, Trump will be recognized as an insurrectionist and disqualified from holding office under the 14^th Amendment to the Constitution. And the Constitution, not Trump, is the supreme law of the land.

The black letter of the Constitution disqualifies insurrectionists in no uncertain terms as sure as it disqualifies “stable geniuses” who are under 35 years of age or persons who are not natural born citizens of the United States. The 14th Amendment provides that anyone who swore an oath to support the Constitution of the United States, and who then “engaged in insurrection or rebellion against the same,” is forbidden to hold any federal or state office unless excused by a vote of two-thirds of both houses of Congress.

The Civil War amendment was designed to keep confederate insurrectionists like Jefferson Davis, who had previously served in Congress and as secretary of war in the Cabinet of President Franklin Pierce, from again holding office. Simply put, there’s zero tolerance if you betrayed your oath of office once and try to get back in to do it again.

Although Trump rubbished the decision as a “sad day for America!!!” he would be hard pressed to attack the Colorado decision as that of seven Trump haters. True, all the seven judges were appointed by Democratic governors. But the court split four to three, with the majority voting to boot Trump off the ballot and the minority voting to keep him on the ballot.

The issue has been flagged by conservative legal scholars for months. Law professors William Baude and Michael Stokes Paulsen, both conservative former Supreme Court clerks, wrote a law review article last August that will live in the annals of great constitutional analyses. They examined every nook and cranny of the 14th Amendment and concluded that Trump must be disqualified.

The legal issue is not very complex. The problem was to find a court with the cajones to disqualify him. And in Colorado, a group of voters called the question, and won.

The 14th Amendment requires that the candidate engage in an insurrection to be disqualified, which Trump did. The trial court in Colorado so found after a five-day trial. But conservative former federal Judge J. Michael Luttig says that proving this aspect is unnecessary. He reasons that the strongest case is that Trump tried to rubbish the executive vesting clause in Article Two of the Constitution, which provides that the president’s term runs out at the end of four years. His attempts to remain in power other than by lawfully winning re-election, Luttig argues, undermined the Constitution and our entire democracy. For this, he deserved disqualification.

The lower court in Colorado found by clear and convincing evidence that Trump engaged in an insurrection on Jan. 6. However, in a bizarro opinion, it held that Trump should not be disqualified because the presidency is not an “office under the United States” within the meaning of the 14^th Amendment, that the “President is not an officer of the United States”  and that as president, Trump had not taken an oath to support the Constitution of the United States but rather to “preserve, protect and defend the Constitution of the United States.”

The Colorado Supreme Court rightfully differed with the trial court, although it affirmed its finding that Trump had engaged in an insurrection. The court reversed the trial court’s absurd finding that the presidency is not an “office” under the United States.

The Constitution refers to the presidency as an “office” 25 times. At a press conference in 1961, President John F. Kennedy referred to himself as “the responsible officer of the government — and that is quite obvious.”

In his failed effort to remove the Stormy Daniels hush money payoff case to the federal court, Trump alleged in his petition for removal that he was a “former officer of the United States.”

As for the argument that Trump never took an oath to support the Constitution, that is to argue that he took his oath to “preserve, protect and defend” with fingers crossed behind his back. The dictionary tells us that “defend” and “support” are synonymous.

Or, as the court stressed: “Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land.”

So, what is the evidence that Trump on Jan. 6, as well as before and after, “engaged in an insurrection”? The supreme Court of Colorado, after laying out dictionary definitions, found that “any definition of an ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” And that should be good enough for the Supreme Court. In fact, the bulk of the evidence introduced at the trial was undisputed.

The decision is not a gift to the unpopular President Biden. It is a gift to Trump’s Republican primary opponents. In fact, it is a gift to the entire Republican Party. Will they have the courage to keep it?

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast “Conversations with Jim Zirin.”