Colorado Supreme Court Relies on January 6 Committee for ‘Insurrection’ Claim

The Colorado Supreme Court cited the January 6 Committee, among other highly partisan sources, in arriving at its conclusion Tuesday that former President Donald Trump had committed “insurrection” and was therefore ineligible for the 2024 ballot.

As Breitbart News reported, a 4-3 majority agreed with the hitherto obscure argument that Trump could be disqualified under Section 3 of the Fourteenth Amendment, drafted after the Civil War to apply to those who had fought for the Confederacy.

The majority held that Trump had led and incited an “insurrection” in the January 6, 2021 riot at the U.S. Capitol. It made that finding despite the fact that Trump has not been convicted of, or even charged with, any crime relating to such an “insurrection.”

Notably, Special Counsel Jack Smith, who has doggedly pursued Trump in federal courts in D.C. and Miami, has not charged Trump with sedition or even incitement, let alone “insurrection,” but rather the more nebulous “conspiracy to defraud” the U.S.

Moreover, the Senate declined to convict Trump at the second impeachment trial, when the House impeachment article claimed that he had “incited an insurrection against the government of the United States.” The House failed sufficiently to prove its case.

So the Colorado Supreme Court turned to other sources, including familiar Democratic talking points. It claimed, for example, that Trump created a “general atmosphere of political violence,” citing flippant rhetoric from rally speeches and even the false claim that Trump told the far-right Proud Boys to “stand back and stand by” during a debate. (Trump in fact condemned white supremacist groups and was simply repeating the format of the question prompt from moderator Chris Wallace; he did not bring up the Proud Boys.) The court did not consider the “atmosphere of political violence” created by the radical left, including an actual attempted insurrection in May 2020, when a mob attacked the White House and Trump had to be rushed to a bunker.

Among the sources the court considered was the January 6 Committee, a one-sided committee that was hand-picked by then-Speaker Nancy Pelosi (D-CA), who — for the first time in congressional history — rejected the minority nominees. The committee interviewed witnesses behind closed doors, without an adversarial process; its hearings were scripted and had no cross-examination. Afterwards, the Committee destroyed its evidence — ironically, since Trump is on trial for mishandling documents.

The Colorado Supreme Court said that the district court, which originally admitted evidence from the January 6 Committee, did not err because, after all, there were two Republican members on the committee (both of whom were virulently anti-Trump), and because “the investigative staff consisted of highly skilled lawyers,” as if that meant the process itself was fair or credible. (One dissenting judge noted that the January 6 Committee’s report “is not beyond reproach” and that Trump was denied due process.)

Finally, the court followed the argument of the Democrat impeachment managers, claiming that Trump’s use of the phrase “fight like hell” in his speech January 6 was an incitement to riot, even though he had also told the crowd to march “peacefully and patriotically.” That point was refuted during the second impeachment trial, when Trump’s lawyers played a video montage of Democrats using “fight” rhetoric, showing that such words are common in politics, referring to strong advocacy, not violence.

The entire decision reads as if it were drafted by the same partisan but “highly skilled” lawyers that the January 6 Committee and the House impeachment managers employed. Its reliance on the Committee, and on partisan talking points, could be its undoing.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.