DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF

DISTRICT COURT, CITY AND COUNTY OF

DENVER, STATE OF COLORADO

1437 Bannock Street

Denver, CO 80202

Δ COURT USE ONLY Δ

Petitioners:

NORMA ANDERSON, MICHELLE PRIOLA,

CLAUDINE CMARADA, KRISTA KAFER, KATHI

WRIGHT, and CHRISTOPHER CASTILIAN

Respondent:

JENA GRISWOLD, in her official capacity as

Colorado Secretary of State

and

Intervenors:

COLORADO REPUBLICAN STATE CENTRAL

COMMITTEE and DONALD J. TRUMP

Case No.: 2023CV32577

Division: 209

FINAL ORDER

This matter came before the Court from October 30, 2023 to November 3, 2023

pursuant to a C.R.S. § 1-1-113 proceeding. Petitioners Norma Anderson, Michelle Priola,

Claudine Cmarada, Krista Kafer, Kathi Wright, and Christopher Castilian (“Petitioners”)

were represented by Eric Olson, Sean Grimsley, Jason Murray, Martha Tierney, Mario

Nicolais, and Nikhel Sus. Respondent Jena Griswold, in her official capacity as

Colorado Secretary of State (“Secretary”), was represented by Jennifer Sullivan, Grant

Sullivan, and Michael Kotlarczyk. Intervenor Donald J. Trump was represented by Scott

Gessler, Geoffrey Blue, Justin North, Johnathan Shaw, Christpher Halbohn, Mark

DATE FILED: November 17, 2023 4:50 PM

Meuser, and Jacob Roth. The Colorado Republican State Central Committee (“CRSCC”)

was represented by Jane Raskin, Michael Melito, Robert Kitsmiller, Nathan Moelker,

and Benjamin Sisney. The Court, having considered the evidence, the extensive

briefing, the proposed findings of fact and conclusions of law, and applicable legal

authority, makes the following findings of fact and conclusions of law and issues the

following order:

I. PROCEDURAL BACKGROUND

1. On September 6, 2023, Petitioners filed their Verified Petition under

C.R.S. §§ 1-4-1204, 1-1-113, 13-51-105 and C.R.C.P. 57(a). Petitioners alleged two claims

for relief. First, they asserted a claim against the Secretary pursuant to C.R.S. § 1-4-

1204 and § 1-1-113. Second, they requested declaratory relief against both the Secretary

and Trump. The declaratory relief requested included a declaration that Trump was not

constitutionally eligible for the office of the presidency.

2. On September 7, 2023, Trump filed a notice of removal to the United

States District Court for the District of Colorado. On September 12, 2023, the United

States District Court for the District of Colorado remanded the case, finding that the

Secretary was not a nominal party whose consent to remove was permissive.

3. CRSCC filed a motion to intervene on September 14, 2023. This Court

granted that motion on September 18, 2023.

4. On September 22, 2023, Trump filed a Special Motion to Dismiss

Pursuant to C.R.S. § 13-20-1101(3)(a) (“Trump Anti-SLAPP Motion”). In that motion,

The Court adopts and incorporates all its prior rulings in this Order.

Trump argued that this case is subject to Colorado’s anti-SLAPP statute because

Petitioners’ claims all stem from protected speech or the refusal to speak and because

the speech concerned election fraud and a hard-fought election, they are the epitome of

public issues. Trump further argued Petitioners were unable to establish a reasonable

likelihood of success on their claims. As a result, Trump argued, the Court must dismiss

the claims.

5. Also on September 22, 2023, Trump separately moved to dismiss

Petitioners’ claims (“Trump Procedural Motion to Dismiss”). Specifically, Trump

argued: (1) Petitioners may not litigate constitutional claims in a C.R.S. § 1-1-113

proceeding; (2) the C.R.S. § 1-4-1204 claim was not ripe; (3) C.R.S. § 1-4-1204 does not

provide grounds to use the Fourteenth Amendment to bar candidates; and (4) there is

no standing on the declaratory judgment claim because there is no particularized or

concrete injury. On September 29, 2023, the Petitioners responded to the Trump

Procedural Motion to Dismiss. In that Response, the Petitioners agreed to dismiss their

declaratory judgment claim. This Court has since dismissed Petitioners’ claim for

declaratory judgment.

6. Also, on September 22, 2023, CRSCC filed a Motion to Dismiss Pursuant

to Colorado Rule of Civil Procedure 12(b)(5) (“CRSCC Motion to Dismiss”). In that

motion, CRSCC argued: (1) the Petition infringes on CRSCC’s first amendment rights;

(2) the Secretary’s role in enforcing C.R.S. § 1-4-1204 is ministerial; and (3) the C.R.S. §

1-4-1204 claim is not ripe. The motion also previewed additional arguments that Trump

made in a subsequent motion to dismiss on whether the Fourteenth Amendment can be

used to keep Trump off the ballot.

7. Finally, also on September 22, 2023, Petitioners moved to dismiss

CRSCC’s First Claim for Relief (“Petitioners’ Motion to Dismiss”). The Petitioners

argued that the CRSCC’s First Claim for Relief was inappropriate in a C.R.S. § 1-1-113

proceeding because it is a constitutional challenge to the election code.

8. On September 29, 2023, Trump filed an additional motion to dismiss. This

motion to dismiss addressed various constitutional arguments regarding why the

Petitioners’ Fourteenth Amendment arguments fail (“Fourteenth Amendment Motion to

Dismiss”). In that motion, Trump argues: (1) this case presents a nonjusticiable political

question; (2) Section Three of the Fourteenth Amendment is not self-executing; (3)

Congress has preempted states from judging presidential qualifications; (4) Section

Three does not apply to Trump; (5) Petitioners fail to allege that Trump “engaged” in an

“insurrection;” and (6) this is an inconvenient forum under C.R.S. § 13-20-1004.

9. Finally, on September 29, 2023, CRSCC filed a Motion for Judgment on

the Pleadings under Rule 12/Judgment as a Matter of Law Under Rule 56 (“CRSCC

Motion for Judgment”). This motion essentially argued that this Court should grant all

the relief CRSCC requested in its Petition based on the Petition alone. This included its

requests that this Court declare: (1) the relief Petitioners request is a violation of their

First Amendment rights; (2) the Secretary does not have authority to preclude the

placement of Trump on Colorado’s ballot pursuant to the Fourteenth Amendment; and

(3) only the CRSCC has the authority to determine who is qualified to be on Colorado’s

ballot as a Republican candidate.

10. On October 5, 2023, the Court granted Donald J. Trump’s motion to

intervene.

11. On October 11, 2023, the Court denied the Trump Anti-SLAPP Motion on

the basis that the anti-SLAPP statute did not apply to this case.

12. On October 20, 2023, the Court issued its Omnibus Ruling on the Pending

Dispositive Motions. The Court denied the Trump Procedural Motion to Dismiss,

finding Petitioners’ claim procedurally proper under C.R.S. § 1-1-113 and ripe for

decision under C.R.S. § 1-4-1204. The Court further found that the issue of whether an

elector can make a Fourteenth Amendment challenge under C.R.S. § 1-4-1204 was an

issue to be preserved for trial. The Court denied the CRSCC Motion to Dismiss, finding

that if a political party puts forth a constitutionally ineligible candidate, and if the

Secretary of State has the legal authority to vet candidate fitness, the First Amendment

is not violated if the State disqualifies that candidate on the grounds of his ineligibility.

The Court denied the CRSCC Motion for Judgment, finding it premature. Finally, the

Court granted Petitioners’ Motion to Dismiss, finding the only relief the Court can afford

in a C.R.S. § 1-1-113 proceeding is an order to comply with the Election Code and that

the CRSCC’s request for declaratory judgment was improper.

13. On October 25, 2023, by separate order, this Court denied Trump’s

Fourteenth Amendment Motion to Dismiss. First, the Court declined to dismiss the

case under the political question doctrine, reserving the issue of whether presidential

eligibility has been delegated to the United States Congress for its final ruling following

the presentation of evidence and argument at trial.

Next, the Court held that to the

extent the Court holds that C.R.S. § 1-4-1204 allows the Court to order the Secretary to

exclude a candidate under the Fourteenth Amendment, states can, and have, applied

Section Three pursuant to state statutes without federal enforcement legislation. As to

Trump’s argument that Congress has preempted states from judging presidential

qualifications, the Court further declined to dismiss the action based on field

preemption. Finally, the Court found Trump had failed to establish dismissal based on

forum non conveniens. The Court reserved the issues of whether Section Three of the

Fourteenth Amendment applies to Trump and whether Trump engaged in an

insurrection for its ruling following trial.

14. Trump filed a Motion to Realign the Secretary as a Petitioner, arguing that

the Secretary was acting as a Petitioner and should be realigned so that Trump could

appeal her decisions, ensure a proper order of proof, and, if necessary, cross-examine

the Secretary’s witnesses. On October 23, 2023, this Court held that the Secretary, in

the context of this litigation, is not antagonistic such that a realignment was

The Court held it would revisit this ruling to the extent that there was any evidence or

argument at trial that provided the Court with additional guidance on whether the issue of

presidential eligibility has been delegated to the United States Congress. The Court holds that

no evidence or arguments made since its initial ruling on this issue has changed its analysis.

Specifically, the Court has reviewed the Honorable Judge Redford’s rulings in LaBrant v.

Benson, Case No. 23-137-MZ (Mich. Ct. Cl. November 14, 2023) and Castro v. New Hampshire

Sec’y of State, No. 23-CV-416-JL, 2023 WL 7110390 (D.N.H. Oct. 27, 2023) and notes that they

rely heavily on certain constitutional provisions and 3 U.S.C. § 15 as providing a textual

commitment to a coordinate political branch. This Court has already undertaken that analysis

and disagrees. If Intervenors could point to a clear textual commitment to Congress, this Court

would readily hold that the questions this case presents have been delegated in the Constitution

to Congress.

appropriate. The Court further noted it had previously held the Secretary’s time would

be counted against Petitioners, that Trump was permitted to put on a case, and that all

Parties would further be allowed to cross-examine all other Parties’ witnesses, except for

Intervenors cross-examining each other’s witnesses.

15. On October 25, 2023, Trump filed a brief regarding the standard of proof

for trial. Petitioners filed a response brief on October 27, 2023. This Court addressed

those briefs in its October 28, 2023 Order, holding that pursuant to Santosky v.

Kramer, 455 U.S. 745, 754 (1982), while Intervenor Trump has a clear interest in being

on Colorado’s ballot, that interest does not rise to the level of a fundamental liberty

interest. The Court thus determined to apply the burden of proof prescribed in C.R.S. §

1-4- 1204(4) at trial.

16. In its Order re: Donald J. Trump’s Motion in limine to Exclude Petitioners’

Anticipated Exhibits issued October 27, 2023 (“Exhibits MIL Order”), this Court held

that the Final Report, Select Committee to Investigate the January 6th Attack on the

United States Capitol, HR 117-663, 117th Cong., 2d Sess. (Dec. 22, 2022) (“January 6th

Report”) was conditionally admissible in this matter subject to the information elicited

from the cross-examination of Timothy Heaphy and the testimony of Congressman Troy

Nehls.

17. The Court issued its Order Re: Intervenor Trump’s Objections to Specific

Findings Contained in January 6th Report on October 29, 2023. In that Order, the

Court made specific and conditional determinations as to which findings were excluded

Intervenors ultimately did not call Congressman Nehls, but the Court did consider his

previously submitted declaration.

pursuant to the Colorado Rules of Evidence, further stating that “[t]o the extent the

parties believe the Court has egregiously or inadvertently erred in its ruling here, they

can still argue for admissibility or inadmissibility in their proposed findings of fact,

conclusions of law.”

18. The matter proceeded to a five-day trial beginning on October 30, 2023

and concluding on November 3, 2023 (the “Hearing”). On November 15, 2023, the

parties presented their closing arguments.

19. Petitioners, the Secretary, and the Intervenors provided this Court with

proposed findings of fact and conclusions of law. The Court has incorporated some of

the Parties’ proposed findings of fact and conclusions of law, in whole or in part, but

only after careful consideration and adoption.

II. JANUARY 6TH REPORT

20. At the Hearing and in their proposed findings of fact and conclusions of

law, Intervenors renewed their objections to the admission of the January 6th Report

into evidence. The Court hereby makes its final decision regarding the admissibility of

the January 6th Report.

21. C.R.E. 803(8) excludes from the hearsay rule “factual findings resulting

from an investigation made pursuant to authority granted by law.” C.R.E. 803(8) is

nearly identical to its federal counterpart, F.R.E. 803(8), and “[c]ases interpreting a

similar federal rule of evidence are instructive” in Colorado. Leiting v. Mutha, 58 P.3d

1049, 1052 (Colo. App. 2002). As such, federal law is instructive when interpreting

C.R.E. 803(8) here.

22. Citing to Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 (1988) and the

Federal Advisory Committee Notes to C.R.E. 803(8)’s federal analogue, the Court in

Barry v. Tr. of Int’l Ass’n Full-Time Salaried Officers & Emps. of Outside Local Unions

& Dist. Counsel’s (Iron Workers) Pension Plan, 467 F.Supp.2d 91, 96 (D.D.C. 2006)

noted that the Rule assumes admissibility in the first instance. “Hence, the party

challenging the admissibility of a public or agency report. . . bears the burden of

demonstrating that the report is not trustworthy.” Barry, 467 F.Supp.2d at 96. The

Court then examined four factors first articulated in Beech Aircraft Corp., 488 U.S. at

167, n. 11 which are meant to assist courts in assessing a report’s trustworthiness: “(1)

the timeliness of the investigation; (2) the special skill or expertise of the investigating

official; (3) whether a hearing was held and the level at which it was conducted; and (4)

possible motivation problems.” Barry, 467 F.Supp.2d at 97. The Court in Barry further

instructed that when examining the factors, a court must focus on whether the report

was prepared in a reliable manner instead of whether the Court agrees with the

conclusions. 467 F.Supp.2d at 97 (citing Moss v. Ole S. Real Estate, Inc., 933 F.2d

1300, 1306-07 (5th Cir. 1991)).

23. In addition to the four factors, Barry instructs that “Congressional reports

are not entitled to an additional presumption of trustworthiness or reliability–beyond

the one already established in the Advisory Committee Notes—simply by virtue of

having been produced by Congress.” Id. at 98. Further, courts should look to whether

members of both parties joined in the report. Id.

24. The question before this Court is whether Intervenors have overcome the

presumptive admissibility of the January 6th Report. The Court holds that the first

three Barry factors weigh strongly in favor of reliability. The investigation started

approximately six months after the events of January 6, 2021 and ended less than two

years after the events took place. As a result, “the passage of time in no way detracts

from the report’s reliability.” Id. at 100. The investigation was conducted by a well-

staffed, highly skilled group of lawyers (including a Republican U.S. Attorney) and led

by a former U.S. Attorney. There was a hearing conducted over ten days and 70

witnesses testified—all of whom testified under oath. The Select Committee had large

volumes of records that it independently evaluated when crafting its final report. None

of these findings were contradicted by evidence presented at the Hearing.

25. Much of the evidence and argument presented at the Hearing centered

around the fourth Barry factor: possible motivation problems. Intervenors’ arguments

against the admissibility of the January 6th Report are that: (1) all nine members of the

committee were biased against Trump and held a “deep personal animus” towards him;

and (2) there was a lack of involvement by the minority party (the Republican Party in

this instance) and therefore a lack of opportunity for effective dissent.

26. Through his cross-examination of Mr. Heaphy, Trump presented evidence

that prior to the formation of the January 6th Committee numerous members of the

January 6th Committee had expressed disdain for Trump and indicated that they

believed that he was responsible for the events of January 6, 2021. Mr. Heaphy

confirmed that the January 6th Committee members made these statements but

testified that these statements merely indicated that the committee members had

formed a hypothesis as to what had led to the events of January 6, 2021. 11/03/2023 Tr.

186:2-7. Mr. Heaphy further testified that although the committee members had

developed this hypothesis, they remained open to whatever conclusions were supported

by the evidence uncovered in the investigation. 11/03/2023 Tr. 210:11-19. 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.

27. Furthermore, the idea that any amount of political bias would render the

January 6th Report untrustworthy for the purposes of C.R.E. 803(8) is incompatible

with the case law surrounding the admissibility of Congressional reports.

28. As Congressman Ken Buck testified, all (or at least nearly all)

Congressional investigations have some measure of political bias or motivation

underlying them. 11/02/2023 Tr. 229:4-10. However, courts have admitted

Congressional reports subject to their reliability for decades. See Barry, 467 F.Supp.2d

at 101 (admitting report from a Senate investigation); Mariani v. United States, 80

F.Supp.2d 352, 361 (M.D. Pa. 1999) (admitting minority report from a Congressional

investigation); Hobson v. Wilson, 556 F. Supp. 1157, 1183 (D.D.C. 1982), aff’d in part,

rev’d in part, 737 F.2d 1 (D.C. Cir. 1984) (admitting Congressional Committee report);

The Court further notes that nearly all Congressional investigations are initiated because there

is something to investigate, i.e., Congress does not investigate events where it does not think

something wrong occurred. 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.

McFarlane v. Ben-Menashe, No. 93-1304(TAF), 1995 WL 129073, at *5 (D.D.C. Mar. 16,

1995), withdrawn in part on reconsideration, No. 93-1304(TAF), 1995 WL 799503

(D.D.C. June 13, 1995), aff’d sub nom. McFarlane v. Sheridan Square Press, Inc., 91

F.3d 1501 (D.C. Cir. 1996) (admitting Congressional Task Force report). Based on the

foregoing case law, it would be inappropriate to exclude the January 6th Report simply

because it was in part politically motivated. The relevant inquiry is instead whether the

report is reliable and trustworthy based upon the factors articulated in Barry.

29. Intervenors argue that the composition of the January 6th Committee

demonstrates underlying motivation problems. Specifically, Intervenors argue that

because the January 6th Committee was made up of 7 Democrats and only 2

Republicans (who, as previously discussed, Trump argues were biased against him),

there was no meaningful input from the minority party in the investigation. Petitioners

respond that the composition of the January 6th Committee was the result of two

events: (1) Senate Republicans’ refusal to vote for an independent and bipartisan

commission; and (2) Republicans’ decision to boycott the January 6th Committee

altogether when then-Speaker of the House Nancy Pelosi refused to seat two of the five

choices Republicans put forth to sit on the January 6th Committee.

30. While the Court agrees with Intervenors that the January 6th Report

would have further reliability had there been greater Republican participation, the

events pointed to by Petitioners demonstrate that the Republicans had a meaningful

opportunity to participate but simply chose not to do so. While the Court is cognizant

that then-Speaker Pelosi rejected two of the five recommended Republicans for the

Committee that the Minority Leader put forth and that she admitted this decision was

“unprecedented,” the fact that the congressional Republicans chose not to seat the three

Republican members that Speaker Pelosi was agreeable to seating or to nominate a new

slate of potential members and instead chose to boycott the Committee is not a valid

reason to reject the January 6th Report in total. This is especially true where

Congressman Buck testified that he had asked to be placed on the January 6th

Committee after then-Speaker Pelosi rejected two of the five Republican nominees, but

his request was turned down by Republican Party leadership. 11/02/2023 Tr. 213:3-14.

31. Furthermore, the two Republicans who did sit on the January 6th

Committee – Former Reps. Elizabeth Cheney and Adam Kinzinger – were both duly

elected Republicans; Congressman Kinzinger was elected six times and Congresswoman

Cheney was elected three times. Prior to January 6, 2021, Congresswoman Cheney also

served as the chair of the House Republican Conference which is the third highest

position in House Republican Leadership.

32. The investigative counsel for the January 6th Committee was also highly

qualified. Mr. Heaphy was the chief investigative counsel for the Select Committee. Mr.

Heaphy is a former U.S. Attorney with significant experience. The investigative staff

included 20 lawyers which Mr. Heaphy noted included many Republicans. Importantly,

the staffing decisions did not include any inquiry into political affiliation. 11/03/2023

Tr. 153:24-154:9.

33. The Committee and its investigative staff interviewed or deposed more

than 1,000 witnesses, collected, and reviewed over 1 million documents, reviewed

hundreds of hours of video footage, and reviewed 60 federal and state court rulings

related to the 2020 election. Trump was subpoenaed, and he refused to comply with the

subpoena. The overwhelming majority of witnesses who the January 6th Committee

interviewed or deposed were Trump administration officials and Republicans. These

witnesses included many of the witnesses that testified at the Hearing.

34. 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.

35. As to Intervenors’ arguments that the January 6th Committee’s disregard

of certain evidence indicates that the investigators were prejudiced against him, the

Court finds such arguments unavailing. No evidence was presented at the Hearing that

the January 6th Committee or its staff coerced witness testimony, refused to hear

testimony they did not want to hear, or disregarded credible exculpatory evidence.

Instead, the evidence presented at the Hearing demonstrated that the January 6th

Committee heard and reviewed all evidence put before it. The only evidence presented

at the Hearing that could arguably show a disregard of certain evidence by the

Committee is the fact that the Committee simply chose not to credit certain testimony as

credible.

The only potential evidence presented at the Hearing of the Committee disregarding testimony

is Mr. Patel’s testimony concerning the authorization of 10,000-20,000 National Guardsmen

(which the Court has found incredible for reasons detailed below) and Congressman Buck’s

testimony that apparently Congressman Jim Jordan told Congressman Buck, when courting his

36. However, as is the case in judicial proceedings and administrative law,

such a determination is the purpose of a factfinder. See, e.g., People ex rel. S.G., 91 P.3d

443, 452 (Colo. App. 2004) (“The fact finder is entitled to reject part of a witness’s

testimony that it finds to be untruthful and still accept other parts that it finds to be

credible.”); People v. Liggett, 114 P.3d 85, 90 (Colo. App. 2005) (“A fact finder may

believe all, some, or none of a witness’s testimony.”).

37. Furthermore, while Trump spent much time contesting potential biases of

the Committee members and their staff, he spent almost no time attacking the

credibility of the Committee’s findings themselves. The Hearing provided Trump with

an opportunity to subject these findings to the adversarial process, and he chose not to

do so, despite frequent complaints that the Committee investigation was not subject to

such a process.

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).

vote for Speaker of the House, that he did not refuse to sit for an interview with the January 6th

Select Committee. The Court did not consider this testimony because it is hearsay and the Court

cannot think of any possible exception to the hearsay rule that would allow its consideration.

The Court notes that while Trump has repeatedly suggested he was not afforded due process, at

no point did he ask the Court for any relief on this basis that the Court denied and in fact only

used approximately twelve hours and fifteen minutes of the eighteen hours provided to him at

the Hearing (or, approximately two-thirds of the allotted time). Further, the Court offered to

hear additional witness testimony outside the 5-day hearing if there were any witnesses who

were not able to testify between October 3o, 2023 and November 3, 2023.

38. Considering the foregoing, the Court holds that the January 6th Report is

reliable and trustworthy and thereby admissible pursuant to C.R.E. 803(8). Despite this

ruling, the Court wishes to emphasize that it has only considered those portions of the

January 6th Report which are referenced in this Order and has considered no other

portions in reaching its decision.

III. HEARING TESTIMONY

39. Officer Daniel Hodges testified on behalf of the Petitioners. Daniel

Hodges is an officer with the Metropolitan Police Department of Washington, D.C.

Daniel Hodges was on duty on January 6, 2021 and testified to his experiences on

January 6, 2021 where he was initially monitoring the Stop the Steal Rally at the Ellipse.

He ultimately was deployed to the Capitol to reinforce the defenses there—to prevent

people from gaining entry to the Capitol. Officer Hodges testified in detail regarding

being attacked with a variety of weapons including flagpoles, stolen riot batons, police

shields, bike rack barriers, pepper spray, and chemical irritants. Officer Hodges walked

the Court through a variety of videos from the body camera he wore that day. 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.

The Court notes that the Petitioners originally submitted 411 findings from the January 6th

Report. The Court previously held that 143 of those findings were inadmissible. In their

proposed findings of fact and conclusions of law, Petitioners submitted 98 findings. The Court

has considered and cited 31 of those findings in this Order.

40. Congressman Eric Swalwell testified on behalf of the Petitioners.

Congressman Swalwell testified regarding his experience with two prior electoral college

certifications as well as the 2020 electoral college certification. He also recounted his

experience on the house floor during the attack on the Capitol on January 6, 2021 which

took place during the electoral college certification. He recounted his role in the

impeachment of Trump for the events of January 6, 2021. 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.

41. Officer Winston Pingeon testified on behalf of the Petitioners. Officer

Pingeon was a police officer for the United States Capitol Police on January 6, 2021.

That day, he was assigned to the Civil Disturbance Unit with a group of about 25

officers. He was originally staged in what he described as the truck tunnel, but the group

was told to put on their riot gear because the outer perimeter lines of the Capitol had

been breached. When they arrived, members of the mob assaulted, pushed, and pepper

sprayed him and his fellow officers. Officer Pingeon described engaging in hand-to-hand

combat for up to three hours while he and the other officers tried to fend off the

attackers. 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.

42. Professor Peter Simi testified on behalf of the Petitioners. Professor Simi

is a professor of sociology at Chapman University. The Court qualified Professor Simi as

an expert in political extremism, including how extremists communicate, and how the

events leading up to and including the January 6, 2021 attack relate to longstanding

patterns of behavior and communication by political extremists. Professor Simi has

been studying political extremism, political violence, and the communication styles of

far-right political extremists for twenty-seven years. He has conducted these studies in

three ways: (1) fieldwork (which is spending time embedded with extremists in their

natural environments); (2) formal interviews; and (3) archival (collecting information).

He testified that he has spent thousands of hours doing fieldwork including with the

three primary perpetrators of the January 6, 2021 attack: Oath Keepers, Proud Boys,

and Three Percenters. He further testified that he has interviewed 217 right wing

extremists and that fourteen of those interviews were with Oath Keepers, Proud Boys,

and Three Percenters. Finally, he testified he’s spent thousands of hours doing archival

research and that research included all three groups. 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.

43. Professor William Banks testified on behalf of the Petitioners. Professor

Banks is a law professor at Syracuse University teaching classes in constitutional law,

national security law, counterterrorism law, and the domestic role of the military. In

2003, he founded the Institute for National Security and Counterterrorism. He has also

advised the Department of Defense and civilian agencies providing for emergency

preparedness and response exercises to better prepare for crisis situations. He has

written between thirty and forty books and articles on the President’s authority to

respond to domestic security threats. The Court qualified Professor Banks as an expert

on the President’s powers to stop domestic attacks on the government and the

authorities that then-President Trump had to call on to stop the attack on January 6,

2021. 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.

44. Professor Gerard Magliocca testified on behalf of the Petitioners.

Professor Magliocca is a law professor at the Indiana University, Robert H. McKinney

School of Law with a focus on constitutional history. Professor Magliocca has been

studying the history of the Fourteenth Amendment for several years and in 2020 wrote

a paper on Section Three of the Fourteenth Amendment. The Court qualified Professor

Magliocca as an expert in the history of Section Three of the Fourteenth Amendment.

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.

45. Hilary Rudy testified on behalf of the Petitioners. Ms. Rudy is Colorado’s

Deputy Elections Director. She has held that position since 2013 and has worked full

time for the Secretary of State since 2006. The Court finds that Ms. Rudy was

knowledgeable about how the Secretary of State’s office has traditionally handled

qualification issues. Her demeanor was very matter of fact, and it was clear that her

goals were apolitical.

She was extremely credible. The Court gave weight to Ms.

Rudy’s testimony regarding the historical practices of the Secretary of State’s office

including when it would traditionally prevent ballot access and when it would not.

46. Timothy Heaphy testified on behalf of the Petitioners. Mr. Heaphy was

the former chief investigative counsel for the January 6th Select Committee. Mr.

Heaphy was an assistant U.S. Attorney from 1991-2006, moved to private practice

where he did white-collar defense until President Obama appointed him as U.S.

Attorney for the Western District of Virginia–a position he held from 2009-2015. In

2017, the City of Charlottesville hired him to investigate the deadly Unite the Right rally.

He worked for the January 6th Select Committee from June 2021 through December

2022. 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.

The Court notes that Ms. Rudy was not made available to the Petitioners prior to the hearing.

She prepared for her testimony with the Deputy Secretary of State.

47. Kash Patel testified on behalf of Intervenor Trump. Mr. Patel was the

former Chief of Staff to the acting Secretary of Defense on January 6, 2021. Mr. Patel

testified that on January 3, 2021, then-President Trump authorized 10,000-20,000

National Guard forces. He also testified about his experiences with the January 6th

Select Committee including that he gave a deposition to the Committee. The Court finds

that Mr. Patel was not a credible witness. His testimony regarding Trump authorizing

10,000-20,000 National Guardsmen is not only illogical (because Trump only had

authority over about 2,000 National Guardsmen) but completely devoid of any evidence

in the record.

Further, his testimony regarding the January 6th Committee refusing to

release his deposition and refusing his request to speak at a public hearing was refuted

by Mr. Heaphy who was a far more credible witness. The Court did not give any weight

to Mr. Patel’s testimony other than as evidence that the January 6th Select Committee

interviewed many of Trump’s supporters as part of its extensive investigation.

48. Katrina Pierson testified on behalf of Intervenor Trump. Katrina Pierson

was a senior advisor to both of Trump’s presidential campaigns. Ms. Pierson tried to

intervene regarding internal disputes that had arisen regarding the January 6, 2021

rally. According to Ms. Pierson’s testimony, at a January 5, 2021 meeting at the White

House, Trump agreed with her position that the speakers at the January 6, 2021 rally

should not include inflammatory speakers such as Alex Jones and Ali Alexander. She

Trump, as commander of the D.C. National Guard, only had direct authority over around

2,000 Guardsmen. To mobilize 10,000-20,000 Guardsmen, he would have had to contact the

Governors of other States and they would have had to then give orders, or he would have had to

federalize the Guardsmen from those States. In either case, there would have been significant

official action taken. No record of such action was produced at the Hearing.

also testified that Trump told someone in the room at the same meeting that he wanted

“10,000 National Guards.” The Court has no reason to disbelieve this testimony but

mentioning 10,000 National Guardsmen is not the same as authorizing them. Finally,

she testified that she spoke with the January 6, 2021 committee for nineteen or twenty

hours. 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. The Court gave weight to Ms. Pierson’s testimony in finding that

Trump chose the speakers on January 6, 2021, that he knew radical political extremists

were going to be in Washington, D.C. on January 6, 2021 and likely attending his

speech, and that the January 6th Committee extensively interviewed witnesses who

were Trump supporters.

49. Amy Kremer testified on behalf of Intervenor Trump. Ms. Kremer is the

founder of Women for America First. Her group hosted the January 6, 2021 rally at the

Ellipse. Ms. Kremer’s testimony was like Ms. Pierson’s in that she worked with Ms.

Pierson to keep the people she described as “whackos” from speaking at the Ellipse. The

reason she did not want “whackos” to speak at the Ellipse is because she was worried

they might incite violence. She testified that from where she stood on the stage of the

Ellipse, she did not witness any violence. Ms. Kremer acknowledged that she remained

by the event stage throughout the rally, did not interact with anyone outside the security

perimeter at the rally, and was unaware that in response to Trump’s speech, some

people in the crowd yelled “storm the Capitol,” “take the Capitol,” and “take the Capitol

right now.” She personally did not walk with the crowd to the Capitol and did not go to

the Capitol but instead returned to her hotel immediately after Trump’s speech. Ms.

Kremer also testified before the January 6th Committee. 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.

50. Tom Van Flein testified on behalf of Intervenor Trump. He is the chief of

staff for Congressman Paul Gosar. He testified that he and the Congressman and his

wife attended the January 6, 2021 rally at the Ellipse from about 8:30 a.m. to 10:30 a.m.

(more than 2 full hours before Trump spoke) and did not see any violence. The Court

found his testimony to be credible but largely irrelevant.

51. Tom Bjorklund testified on behalf of Intervenor Trump. He is the

Colorado Republican Party Treasurer. Mr. Bjorklund attended the January 6, 2021 rally

at the Ellipse. Mr. Bjorklund showed the Court several pictures and videos he took on

that day. Mr. Bjorklund testified that he was not close to the stage at the Ellipse during

the rally. He then marched to the Capitol and claimed he did not see any violence

despite acknowledging he saw people smashing the windows of the Capitol to gain

access. The Court found Mr. Bjorklund’s testimony that he did not see any violence to be

not credible given he saw people breaching the Capitol through windows they’d

smashed. Further, Mr. Bjorklund’s testimony that Antifa was involved in the attack

lacked credibility and was evidence of his inability to discern conspiracy theory from

reality. The Court only gave weight to Mr. Bjorklund’s testimony that not all the

protestors were violent and that he understood Trump to be directing the crowd to the

Capitol and that he followed that direction.

52. Congressman Ken Buck testified on behalf of Intervenor Trump.

Congressman Buck testified about his experience on January 6, 2021, when the Capitol

was attacked as well as his views regarding the reliability of the January 6th Report.

Congressman Buck also testified that he was not particularly scared during the attack on

the Capitol but admitted that was because he did not have a cell phone and did not

realize the extent of the attack. The Court found Congressman Buck to be a credible

witness. The Court gave weight to Congressman Buck’s testimony that Congressional

reports are inherently political, and that Minority Leader Kevin McCarthy actively

prevented the January 6th Committee from being bipartisan including when he rejected

Congressman Buck’s request to be on the Committee.

53. Professor Robert Delahunty testified on behalf of Intervenor Trump.

Professor Delahunty is a constitutional law professor. The Court qualified Professor

Delahunty as an expert in constitutional law and the application of historical documents

to 19th-century statutes and constitutional provisions. Professor Delahunty was offered

to rebut the opinions of Professor Magliocca, and while he had nowhere near the

expertise of Professor Magliocca, he offered opinions that were helpful to the Court in

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.

assessing the historical context in which Section Three of the Fourteenth Amendment

was ratified.

IV. FINDINGS OF FACT

A. THE PARTIES

54. Petitioners Norma Anderson, Michelle Priola, Claudine Cmarada, and

Krista Kafer are each registered voters affiliated with the Republican Party who reside in

Colorado. Joint Stipulated Facts (“Stipulation”) ¶¶ 1–4. Petitioners Kathi Wright and

Christopher Castilian are each registered voters unaffiliated with any political party who

reside in Colorado. Id. ¶¶ 5–6. Each are eligible electors as defined in C.R.S. § 1-1-

104(16).

55. Respondent Jena Griswold is the Secretary of State of Colorado and is

sued solely in her official capacity. Id. ¶ 7.

56. Intervenor Donald J. Trump served as 45th President of the United States

from January 20, 2017, to January 20, 2021. Id. ¶ 8. On January 20, 2017, Trump took

the Presidential Oath of Office, swearing to “faithfully execute the Office of President of

The Intervenors seem to have largely abandoned Professor Delahunty’s testimony and cite it

only once in their 177 pages of proposed findings of fact and conclusions of law. The citation is

for the proposition that the omission of the word “incite” from Section Three means that

incitement was not meant to be a form of engagement.

The Court is denying Petitioners the relief they request on legal grounds. Because of the

Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of

law on all remaining issues before it. The Court does so because it is cognizant that to the extent

the Colorado Supreme Court decides to review this matter, it may disagree with any number of

the legal conclusions contained in this Order and the Orders that precede it. The Court has

endeavored to give the Colorado Supreme Court all the information it needs to resolve this

matter fully and finally without the delay of returning it to this Court.

the United States,” and “to the best of [his] Ability, preserve, protect and defend the

Constitution of the United States.” U.S. CONST. art. II, § 1, cl. 8; Stipulation ¶ 9.

57. Trump was a candidate for re-election in 2020. Stipulation ¶ 10.

58. On November 15, 2022, Trump publicly announced his 2024 presidential

campaign. Id. ¶ 16.

59. On October 11, 2023, the Secretary received a notarized statement of

intent from Trump to appear on the presidential primary ballot, along with the required

filing fee and the Colorado Republican Party’s approval of his candidacy as required

under C.R.S. § 1-4-1204(1). Id. ¶ 17.

60. Intervenor CRSCC is an unincorporated nonprofit association and political

party committee in the state of Colorado, operating under Colorado law. State Party’s

Verified Petition in Intervention ¶ 5.

B. TRUMP’S HISTORY WITH POLITICAL EXTREMISTS

61. As noted above, Petitioners called an expert in political extremism,

Professor Peter Simi. Professor Simi has a Ph.D. in Sociology, teaches at Chapman

University, and has spent his 27-year career focused on political violence and

extremism. 10/31/23 Tr. 11:15–12:12. He has written two books on political violence and

extremism—American Swastika and Out of Hiding—and published over sixty peer-

reviewed articles or book chapters on different facets of political violence and

extremism. 10/31/23 Tr. 21:15–23:2. He has provided training on political extremism

and violence to the Federal Bureau of Investigation, Department of Homeland Security,

the Federal Bureau of Prisons, the Department of Justice, and several state and local law

enforcement agencies across the country. 10/31/23 Tr. 23:20–24:6.

62. Professor Simi reviewed Trump’s relationship with his supporters over the

years, identified a pattern of calls for violence that his supporters responded to, and

explained how that long experience allowed Trump to know how his supporters

responded to his calls for violence using a shared language that allowed him to maintain

plausible deniability with the wider public. 10/31/23 Tr. 56:23–59:17, 200:22–203:12.

63. Trump himself agrees that his supporters “listen to [him] like no one else.”

Ex. 134. Amy Kremer also testified that Trump’s supporters are “very reactive” to his

words. 11/02/2023 Tr. 49:4–6.

64. Professor Simi testified about the following examples of patterns of call-

and-response that Trump developed and used to incite violence by his supporters.

65. At an October 23, 2015 rally, Trump said to his supporters in response to

protestors disrupting the rally, “See, the first group, I was nice . . . The second group, I

was pretty nice. The third group, I’ll be a little more violent. And the fourth group I’ll

say, ‘Get the hell outta here!’” Ex. 127.

66. The next month, Trump used this very language, telling his supporters to

“get [a protester] the hell out of here” and the protester was then assaulted. When asked

about the attack the next day, Trump said “maybe [the protester] should have been

roughed up.” Ex. 50; 10/31/2023 Tr. 70:1–4, 71:13-72:1, 235:3–10.

67. At a February 2016 rally, Trump told his supporters to “knock the crap out

of” any protesters who threw tomatoes and promised to pay the legal fees of anyone

carrying out the assault. Ex. 51; 10/31/2023 Tr. 213:14–25.

68. At another February 2016 rally, Trump told his supporters that, in the “old

days” a protester would be “carried out on a stretcher,” and that he would like to “punch

him in the face.” Ex. 52; 10/31/2023 Tr. 214:6–25.

69. When asked about his supporters’ violent acts in March 2016, Trump said

the violence was “very, very appropriate” and that “we need a little bit more of” it. Ex.

53; 10/31/2023 Tr. 67:6–25.

70. At an August 2016 rally, Trump noted “Second Amendment people” might

be able to prevent Hillary Clinton (if elected President) and judges appointed by her

from interpreting the Constitution in unfavorable ways. Ex. 159.

71. In August 2017, when asked about the white supremacist Unite the Right

rally in Charlottesville, Virginia, where a counter-protester was murdered, Trump stated

there “was blame on both sides . . . some very fine people on both sides.” Ex. 56;

10/31/2023 Tr. 68:12–20.

72. Far-right extremists, including David Duke, Richard Spencer, and Andrew

Anglin, thanked Trump for his comments and took them as an endorsement,

notwithstanding Trump’s condemnation of neo-Nazis and white supremacists in the

same speech. Professor Simi testified that the latter statement would be understood as

plausible deniability. 10/31/2023 Tr. 68:21–69:16, 74:18–75:9, 166:9–20, 226:11–

227:7.

73. At an October 2018 rally, Trump referred to a candidate who body

slammed a reporter as “my kind of guy.” Ex. 57; 10/31/2023 Tr. 215:22–216:5.

74. At a May 2019 rally, when one of his supporters suggested shooting

migrants, Trump stated: “That’s only in the panhandle you can get away with that

statement.” The crowd cheered. Ex. 58.

75. In a May 2020 tweet referring to an armed occupation of the Michigan

State Capitol by anti-government extremists, Trump tweeted that the attackers were

“very good people,” and that the Michigan Governor should respond by appeasing them.

Ex. 148, p. 3.

76. On May 29, 2020, President Trump threatened to deploy “the Military” to

Minneapolis to shoot “looters” amid protests over the police killing of George Floyd,

tweeting “when the looting starts, the shooting starts.” Ex. 148, p. 5.

77. During a presidential debate on September 29, 2020, Trump refused to

denounce white supremacists and violent extremists and instead told the Proud Boys to

“stand back and stand by,” later adding that “somebody’s got to do something about

Antifa and the left.” Ex. 1064.

78. Trump’s words “stand back and stand by” were well received and

considered an endorsement. In fact, the Proud Boys turned the phrase into a mantra

The Court acknowledges that the statement occurred during a debate, when the moderator

had asked Trump to ask white nationalists and militias to “stand down,” and further that

President Biden called on Trump to disavow the Proud Boys, specifically. Nevertheless, Trump’s

conduct is consistent with the pattern identified by Professor Simi in that an apparent disavowal

(though the Court notes that “stand back and stand by” does not carry the same meaning as

“stand down”) was immediately qualified by an apparent endorsement (i.e. that somebody has

“got to do something.”).

and put it on merchandise. 10/31/2023 Tr. 77:13–21. The Proud Boys and other

extremists understood this as a directive to be prepared for future violence. 10/31/2023

Tr. 78:21–23.

79. Trump also regularly endorsed and cultivated relationships with

incendiary figures connected with far-right extremists, including Alex Jones, Steve

Bannon, and Roger Stone. 10/31/2023 Tr. 57:8-10, 199:23-200:4, 222:21-225:2.

Katrina Pierson, a senior advisor to the Trump campaign who helped to organize the

Ellipse rally, testified that Trump “likes the crazies” (referring to individuals like

Alexander and Jones, whose speeches are often “incendiary” and “inflammatory”) “who

viciously defend him in public.” 11/01/23 Tr. 287:2–12, 299:4–16; see also 11/02/23 Tr.

57:15–58:3 (Amy Kremer calling Jones and Alexander “flamethrowers” and “agitators”

who “want to get everybody riled up”).

80. Trump retained Bannon and Stone as advisers, two individuals with very

close relationships with far-right extremists. 10/31/2023 Tr. 199:23–200:8, 222:21–23,

224:2–13. Though Trump did fire Bannon, he would eventually issue a presidential

pardon to him. 10/31/2023 Tr. 223:1–3. Regardless, the Court finds that Trump had

courted these fringe figures for many years through activities such as endorsing far-right

conspiracy theories like birtherism. 10/31/2023 Tr. 56:23–57:15.

81. On October 30, 2020, a convoy of Trump supporters driving dozens of

trucks (calling themselves a “Trump Train”) surrounded a Biden-Harris campaign bus

on a Texas highway. On October 31st, Trump tweeted a stylized video of the Trump

Train confrontation and stated, “I LOVE TEXAS!” Exs. 71; 148, p. 8.

82. On November 1, 2020, in response to news that the FBI was investigating

the incident, Trump tweeted, “In my opinion, these patriots did nothing wrong” and

indicated they should not be investigated. Ex. 148, p. 9. Later that day at a rally in

Michigan, Trump again celebrated the incident boasting “they had hundreds of cars,

Trump, Trump. Trump and the American flag.” Ex. 67.

83. At no point did Trump ever credibly condemn violence by his supporters

but rather confirmed his supporters’ violent interpretations of his directives. Professor

Simi testified that through these repeated interactions, Trump developed and employed

a coded language based in doublespeak that was understood between himself and far-

right extremists, while maintaining a claim to ambiguity among a wider audience.

10/31/2023 Tr. 53:2–54:12, 65:20–66:20, 76:9–23, 211:13–218:24.

84. For example, violent far-right extremists understood that Trump’s calls to

“fight,” which most politicians would mean only symbolically, were, when spoken by

Trump, literal calls to violence by these groups, while Trump’s statements negating that

sentiment were insincere and existed to obfuscate and create plausible deniability.

10/31/2023 Tr. 49:14–21, 59:7–17, 101:20–102:6.

85. 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. 10/31/2023 Tr. 126:11–19, 221:10–21.

86. 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.

C. TRUMP’S FALSE ALLEGATIONS OF A STOLEN ELECTION

87. Trump planted the seed well before the 2020 election that any loss would

be fraudulent. 10/31/2023 Tr. 61:15–62:1, 63:3–11. He portrayed the election as being

“stolen” in a way that “resonate[d]” with far-right extremists and aligned with their

“perspective that . . . there’s this corrupt system that’s preventing them from electing

somebody that they support, that the system is rigged.” 10/31/2023 Tr. 64:6–16,

168:20–169:6.

88. At an August 17, 2020 campaign rally in Wisconsin, Trump stated, “the

only way we’re going to lose this election is if the election is rigged. Remember that. It’s

the only way we’re going to lose this election . . . The only way they’re going to win is

that way. And we can’t let that happen.” Ex. 61.

89. On August 24, 2020, at the Republican National Convention, Trump called

mail-in voting “the greatest scam in the history of politics,” accused Democrats of

“stealing millions of votes” and argued that “the only way they can take this election

away from us is if this is a rigged election.” Ex. 62.

90. On September 23, 2020, when asked at a White House press briefing

whether he would commit to a peaceful transfer of power after the election, President

Trump refused. Ex. 64.

91. On November 2, 2020, the day before Election Day, Trump criticized the

U.S. Supreme Court for allowing Pennsylvania to extend the time for receiving mail-in

ballots, tweeting that the Court’s decision was “VERY dangerous,” “will allow rampant

and unchecked cheating and will undermine our entire systems of laws,” and “will also

induce violence in the streets,” imploring that “[s]omething must be done!” Ex. 148, p.

10.

92. On election night, Trump claimed victory, asserting from the White

House: “This is a fraud on the American public. This is an embarrassment to our

country. We were getting ready to win this election. Frankly, we did win this election.

We did win this election.” Ex. 47.

93. On November 4, 2020, President Trump tweeted: “We are up BIG, but

they are trying to STEAL the Election. We will never let them do it.” Ex. 148, p. 10.

94. On November 5, 2020, Trump tweeted “STOP THE COUNT!”. Ex. 148, p.

12.

95. On November 7, 2020, the election was called for Joe Biden Ex. 78, p. 51

(Finding # 162).

96. On November 8, 2020 Trump tweeted, “We believe these people are

thieves. The big city machines are corrupt. This was a stolen election. Best pollster in

Britain wrote this morning that this clearly was a stolen election” Ex. 148, p. 12.

97. Trump’s advisors (within his administration, his campaign, and his legal

team) repeatedly told him he had virtually no chance of victory, and that there was no

evidence of widespread election fraud sufficient to change the election results. Ex. 78,

pp. 8, 9, 22 (Finding ## 30, 36, 77).

98. Despite his advisors telling him there was no evidence of election fraud,

Trump continued to maintain the election was stolen. See, e.g., Exs. 99; 100; 148, pp.

13-15, 18, 20, 24, 30, 38, 47.

99. Trump filed 62 lawsuits—61 were rejected outright.

100. 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.

101. On December 13, 2020, Trump tweeted “Swing States that have found

massive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes

as complete & correct without committing a severely punishable crime.” Ex. 148, p. 38.

102. On December 14, 2020, the Electoral College met and cast their votes in

the 2020 election. Stipulation ¶ 12. The certified electors voted as follows: 306 for Joe

Biden and 232 for Donald Trump. Id. The certified Electoral College votes were then

submitted to Congress. Id. ¶ 13.

103. Trump further sought to corruptly overturn the election results through

direct pressure on Republican officeholders in various states both before and after the

Electoral College met and voted in their respective states. Ex. 78, pp. 2, 59. (Finding ##

5, 185).

104. Many of the state officials targeted by Trump’s campaign of intimidation

were subject to a barrage of harassment and violent threats by Trump’s supporters—

prompting Georgia election official Gabriel Sterling to issue a public warning to Trump

to “stop inspiring people to commit potential acts of violence” or “[s]omeone’s going to

get killed.” Ex. 126.

105. Trump saw and retweeted a video of that press conference with a message

repeating the very rhetoric Sterling warned would cause violence. Exs. 126; 148, p. 27.

Far-right extremists understood Trump’s refusal to condemn the violence cited in the

video and his doubling down on the motivation for that violence as an endorsement of

the use of violence to prevent the transfer of presidential power. 10/31/2023 Tr. 92:8–

94:6.

106. Trump propelled the “Stop the Steal” movement and cross-country rallies

in the lead-up to January 6, 2021 with continued false assertions of election fraud. Ex.

78, p. 82 (Finding # 263).

107. Between Election Day 2020 and January 6, 2021, Stop the Steal organizers

held dozens of rallies around the country, inflaming Trump supporters with election

disinformation and recruiting them to travel to Washington, D.C. on January 6, 2021.

The rallies brought together many groups, including violent extremists such as the

Proud Boys, Oath Keepers, and Three Percenters; QAnon conspiracy theorists; and

white nationalists. Id.; 10/31/2023 Tr. 61:4–14.

108. These same Stop the Steal leaders joined two “Million MAGA Marches” in

Washington, D.C. on November 14, 2020, and December 12, 2020. Tens of thousands of

Trump supporters attended the events, with protests focused on the Supreme Court

building. 11/02/23 Tr. 20:20–22:17, 37:22–38:21.

109. After the November rally turned violent, Trump acknowledged his

supporters’ violence, but justified it as self-defense against “ANTIFA SCUM.” Ex. 148, p.

17. Far-right extremists understood Trump’s statement as another endorsement of the

use of violence against his political opponents. 10/31/2023 Tr. 91:10–23.

110. As the crowds gathered in Washington, D.C. on December 12, 2020 Trump

publicly assailed the Supreme Court for refusing to hear his fictitious claims of election

fraud. Ex. 78, p. 83 (Finding # 267); 148, pp. 32-36. Stop the Steal organizers Alex

Jones, Owen Shroyer, and Ali Alexander understood his communications as a call to

action and thereafter led a march on the Supreme Court, where the crowd chanted

slogans such as “Stop the Steal!”; “1776!”; “Our revolution!”; and “The fight has just

begun!” Ex. 78, p. 83 (Finding # 268).

111. During the November rally, Trump passed through the crowd in his

presidential motorcade. 11/01/23 Tr. 306:8–14. Then, on the morning of December 12,

2020, Trump tweeted: “Wow! Thousands of people forming in Washington (D.C.) for

Stop the Steal. Didn’t know about this, but I’ll be seeing them! #MAGA.” Ex. 148, p. 36.

Later that day, Trump flew over the protestors in Marine One. Ex. 148, p. 37; 11/01/23

Tr. 306:8–24.

112. Trump sent a tweet at 1:42 a.m. on December 19, 2020, urging his

supporters to travel to Washington, D.C. on January 6, 2021: “Statistically impossible to

have lost the 2020 Election. Big protest in D.C. on January 6. Be there, will be wild!” Ex.

148, p. 41.

113. Trump’s “plan” was that when Congress met to certify the election results,

Vice President Pence could reject the true electors that voted for Biden and certify

Trump’s fake slate of electors or return the slates to the States for further proceedings.

Exs. 78, p. 13 (Finding #50); 148, pp. 75, 80.

114. Under the Twelfth Amendment and the Electoral Count Act, 3 U.S.C. § 15

(2018), electoral votes are sent to Congress for a joint session on January 6 where

Congress counts the votes from the states. If a Representative objects to the counting of

electoral votes from a state, they need a Senator to join in the objection. If that happens,

the joint session recesses and goes back to each chamber. The Vice President has no role

in the objections other than presiding over the proceedings. 10/30/2023 Tr. 131:17-

133:25; 11/02/23 Tr. 187:3–188:15.

115. 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.

116. 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.

117. Trump’s December 19, 2020 tweet had an immediate effect on far-right

extremists and militias such as the Proud Boys, the Oath Keepers, and the Three

Percenters, who viewed the tweet as a “call to arms” and began to plot activities to

disrupt the January 6, 2021 joint session. Ex. 78, pp. 79, 85, 86, 88 (Finding ## 254,

275, 276, 280, 289); 10/31/2023 Tr. 104:18–105:4; 11/03/23 Tr. 200:3–21.

118. Trump repeated his invitation to come to Washington, D.C. on January 6,

2021 at least a dozen times. Ex. 148, pp. 55, 60, 62, 63, 72, 75, 76, 78.

119. On January 1, 2021, Trump retweeted a post from Kylie Jane Kremer, an

organizer of March for Trump on January 6, saying “The calvary is coming, Mr.

President! JANUARY 6th | Washington, DC.”

Trump added, “A great honor!” Ex. 148,

p. 64.

120. At the same time, Trump continued to make false statements regarding

voter fraud, fueling the fire of his supporters’ belief that the election was somehow

stolen. Ex. 148, pp. 47, 48, 50, 61, 69, 73, 75.

121. On December 26, 2023, he tweeted: “If a Democrat Presidential Candidate

had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the

Democrat Senators would consider it an act of war, and fight to the death. Mitch & the

Republicans do NOTHING, just want to let it pass. NO FIGHT!” Ex. 148, p. 49.

122. 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.

123. Federal agencies that Trump oversaw as the Chief Executive Officer of the

Executive Branch—including the Secret Service—identified significant threats of

violence ahead of January 6, 2021, including threats to storm the U.S. Capitol and kill

elected officials. Such threats were made openly online and widely reported in the press.

See Ex. 32, pp. 18–26, 102–105. Agency threat assessments stated domestic violent

A calvary is “an open-air representation of the crucifixion of Jesus.” https://www.merriam-

webster.com/dictionary/calvary. The Court presumes that Ms. Kremer (and Trump when he

retweeted the text) were referring to cavalry or “an army component . . . assigned to combat

missions that require great mobility.” https://www.merriam-webster.com/dictionary/cavalry.

extremists or militia groups planned for violence on January 6, 2021, with weapons

including firearms, and enough ammunition to “win a small war.” See id. at 103.

124. The FBI received many tips regarding the potential for violence on

January 6, 2021 following Trump’s “will be wild” tweet. One such tip said, “They think

they will have a large enough group to march into DC armed and will outnumber the

police so they can’t be stopped . . . They believe that since the election was ‘stolen’ it’s

their constitutional right to overtake the government and during this coup no U.S. laws

apply. Their plan is to literally kill. Please, please take this tip seriously and investigate

further.” 11/03/2023 Tr. 218:7–16.

125. Nonetheless, Trump did not advise federal law enforcement agencies that

in his speech on January 6, 2021, he was going to instruct the crowd to march to the

Capitol. As a result, law enforcement was not prepared for the attendees at the rally to

descend on the Capitol.

126. Trump knew that Ali Alexander and Alex Jones wanted to speak at the

rally. Katrina Pierson and Amy Kremer described those two as “flamethrowers” and

“agitators” who “want to get everyone riled up.” Pierson called them “crazies” and

Kremer called them “whackos.” 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.

127. In the early morning of January 6, 2021 Trump tweeted, “If Vice President

@Mike_Pence comes through for us, we will win the Presidency. Many States want to

decertify the mistake they made in certifying incorrect & even fraudulent numbers in a

process NOT approved by their State Legislatures (which it must be). Mike can send it

back!” Ex. 148, p. 80. At 8:17 a.m., Trump tweeted, “All Mike Pence has to do is send

them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”

Id.

128. 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.

D. THE SPEECH AT THE ELLIPSE

129. In the early morning of January 6, 2021, tens of thousands of Trump

supporters began gathering around the Ellipse for Trump’s speech and “wild” protest he

had promoted. Ex. 133, pp. 1–7; 11/02/23 Tr. 56:22–57:10.

130. To enter the Ellipse itself, attendees were required by the Secret Service to

pass through magnetometers and to be checked for weapons. 11/02/23 Tr. 44:2–45:18,

57:5–14. Around 28,000 rally attendees passed through the security checkpoints to

enter the Ellipse. Ex. 78, pp. 31-32, 102 (Finding ##107, 338).

131. From only the attendees who went through security checkpoints at the

Ellipse, the Secret Service confiscated hundreds of weapons and prohibited items,

including 269 knives or blades, 242 canisters of pepper spray, 18 brass knuckles, 18

tasers, 6 pieces of body armor, 3 gas masks, 30 batons or blunt instruments, and 17

miscellaneous items like scissors, needles, or screwdrivers. Id.

132. About 25,000 additional attendees purposely remained outside the Secret

Service perimeter at the Ellipse and avoided the magnetometers. Ex. 78, pp. 31-32

(Finding # 107); 11/02/23 Tr. 57:5–14. They formed into a large crowd that extended to

the National Mall and Washington Monument. Ex. 1003; 11/02/2023 Tr. 151:18–152:2.

Those attendees were not subject to any security screening. Ex. 78, p. 98 (Finding #

323); 11/02/23 Tr. 44:19–24, 57:5–13.

133. Some members of the crowd wore tactical gear, including ballistic helmets

like those worn by riot police, goggles, gas masks, armored gloves, tactical boots,

earpieces for radios, and military-grade backpacks with additional gear unknown to

police. 10/30/2023 Tr. 70:6–11; 11/02/2023 Tr. 328:19–329:1.

134. Some attendees of the January 6 Ellipse event were armed. Ex. 78, p. 32

(Finding # 108).

135. Despite knowing of the risk of violence and knowing that crowd members

were angry and armed, Trump still attended the rally and directed the crowd to march

to the Capitol. The following are excerpts from his speech:

“All of us here today do not want to see our election victory stolen by emboldened

radical-left Democrats, which is what they’re doing. And stolen by the fake news

media. That's what they've done and what they're doing. We will never give

up, we will never concede. It doesn't happen. You don't concede

when there's theft involved.”

“Our country has had enough. We will not take it anymore and that’s

what this is all about. And to use a favorite term that all of you people really came

up with: We will stop the steal. Today I will lay out just some of the evidence

proving that we won this election and we won it by a landslide. This was not a

close election.”

“Because if Mike Pence does the right thing, we win the election. All he

has to do, all this is, this is from the number one, or certainly one of the top,

Constitutional lawyers in our country. He has the absolute right to do it.”

“And I actually, I just spoke to Mike. I said: ‘Mike, that doesn't take courage.

What takes courage is to do nothing. That takes courage.’ And then we're stuck

with a president who lost the election by a lot and we have to live with that for

four more years. We're just not going to let that happen.”

“We’re gathered together in the heart of our nation’s capital for one very, very

basic reason: to save our democracy.”

“We want to go back and we want to get this right because we’re going to have

somebody in there that should not be in there and our country will be

destroyed and we’re not going to stand for that.”

“For years, Democrats have gotten away with election fraud and

weak Republicans. And that's what they are. There’s so many weak

Republicans. And we have great ones. Jim Jordan and some of these guys, they’re

out there fighting. The House guys are fighting.”

“If this happened to the Democrats, there’d be hell all over the

country going on. There’d be hell all over the country. But just

remember this: You’re stronger, you’re smarter, you've got more going than

anybody. And they try and demean everybody having to do with us. And you’re

the real people, you’re the people that built this nation. You’re not

the people that tore down our nation.”

“Republicans are constantly fighting like a boxer with his hands tied behind his

back. It’s like a boxer. And we want to be so nice. We want to be so respectful of

everybody, including bad people. And we’re going to have to fight much

harder.”

“And Mike Pence is going to have to come through for us, and if he

doesn’t, that will be a, a sad day for our country because you’re sworn to uphold

our Constitution.”

“Now, it is up to Congress to confront this egregious assault on our democracy.

And after this, we're going to walk down, and I’ll be there with you, we're going to

walk down, we’re going to walk down.”

“Anyone you want, but I think right here, we’re going to walk down to the Capitol,

and we’re going to cheer on our brave senators and congressmen and women,

and we’re probably not going to be cheering so much for some of

them. Because you’ll never take back our country with weakness.

You have to show strength and you have to be strong. We have come to

demand that Congress do the right thing and only count the electors who have

been lawfully slated, lawfully slated.”

“But think of what happens. Let’s say they’re stiffs and they’re stupid people, and

they say, well, we really have no choice . . . You will have a president who lost all

of these states. Or you will have a president, to put it another way, who

was voted on by a bunch of stupid people who lost all of these states.

You will have an illegitimate president. That’s what you’ll have. And

we can’t let that happen.”

“The radical left knows exactly what they’re doing. They’re ruthless

and it’s time that somebody did something about it. And Mike Pence, I

hope you’re going to stand up for the good of our Constitution and for the good of

our country. And if you’re not, I'm going to be very disappointed in you. I will tell

you right now. I'm not hearing good stories.”

“The Republicans have to get tougher. You’re not going to have a

Republican Party if you don’t get tougher. They want to play so straight. They

want to play so, sir, yes, the United States. The Constitution doesn’t allow me to

send them back to the States. Well, I say, yes it does, because the Constitution

says you have to protect our country and you have to protect our Constitution,

and you can’t vote on fraud. And fraud breaks up everything, doesn’t it?’

When you catch somebody in a fraud, you’re allowed to go by very

different rules. So I hope Mike has the courage to do what he has to

do. And I hope he doesn’t listen to the RINOs and the stupid people

that he’s listening to.”

“We won in a landslide. This was a landslide. They said it’s not American to

challenge the election. This the most corrupt election in the history,

maybe of the world. You know, you could go third-world countries, but I don’t

think they had hundreds of thousands of votes and they don't have voters for

them. I mean no matter where you go, nobody would think this. In fact, it’s so

egregious, it’s so bad that a lot of people don't even believe it. It’s so crazy that

people don’t even believe it. It can’t be true. So they don’t believe it. This is not

just a matter of domestic politics — this is a matter of national security.”

“And we fight. We fight like hell. And if you don’t fight like hell, you're not going

to have a country anymore.”

Exs. 22, pp. B1-B23 (emphasis added); 49.

136. Much of Trump’s speech was not in Trump’s prepared remarks. For

instance, Trump’s speech called out Vice President Pence by name eleven times. Exs. 22,

pp. B1-B23; 49. The teleprompter draft of the speech released by the National Archives

contained only one reference to Vice President Pence. Ex. 157, p. 34.

137. Trump used the word “fight” or variations of it 20 times during his Ellipse

speech. Exs. 22, pp. B1-B23; 49. The teleprompter draft contained only one mention of

the word fight. Ex. 157, p. 29.

138. Trump also repeatedly insisted that the crowd cannot let the certification

happen:

“You will have an illegitimate president. . . . we can’t let that happen”

“We can’t let this stuff happen. We won’t have a country if it happens”

“And then we’re stuck with a president who lost the election by a lot and we have

to live with that for four more years. We’re just not going to let that

happen”

“They want to come in again and rip off our country. Can’t let it happen”

“We will never give up, we will never concede. It doesn’t happen. You don’t

concede when there’s theft involved.”

Exs. 22, pp. B1-B23 (emphasis added); 49. The teleprompter draft contained no

mention of the crowd needing to prevent something from happening. See Ex. 157.

139. The statement that the alleged voter fraud “allowed” his supporters “to go

by very different rules,” was not in the prepared speech. Exs. 22, p. B20; 49; 157.

140. Knowing many in the crowd were angry and armed, Trump called on them

to march to the Capitol and vowed to join them. Rally attendees took Trump at his word

and thought he would join them at the Capitol. 11/02/2023 Tr. 166:21–24.

141. The crowd at the Ellipse reacted to Trump’s words with calls for violence.

After Trump instructed his supporters to march to the Capitol, members of the crowd

responded with shouts of “storm the Capitol!” “invade the Capitol Building!” and

repeated chants of “take the Capitol!” Ex. 166.

142. As Professor Simi testified, Trump’s speech took place in the context of a

pattern of Trump’s knowing “encouragement and promotion of violence” to develop and

deploy a shared coded language with his violent supporters. 10/31/2023 Tr. 221:10–21.

An understanding had developed between Trump and some of his most extreme

supporters that his encouragement, for example, to “fight” was not metaphorical,

referring to a political “fight,” but rather as a literal “call to violence” against those

working to ensure the transfer of Presidential power. 10/31/2023 Tr. 66:7–20, 101:8–

102:6. While Trump’s Ellipse speech did mention “peaceful” conduct in his command to

march to the Capitol, the overall tenor was that to save the democracy and the country

the attendees needed to fight. 10/31/2023 Tr. 101:8–102:21.

143. Trump understood the power that he had over his supporters. Amy

Kremer testified that “when [Trump] does these speeches, he plays off the crowd. And

they’re very reactive.” 11/02/2023 Tr. 49:4–6. She also acknowledged that the rally

attendees were there because they believed the lie that the election was stolen.

11/02/2023 Tr. 47:23–48:2. Trump admitted his power over his supporters recently.

Ex. 134.

144. 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.

145. In the context of the speech as a whole, as well as the broader context of

Trump’s efforts to inflame his supporters through outright lies of voter fraud in the

weeks leading up to January 6, 2021 and his long-standing pattern of encouraging

political violence among his supporters, 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. See also

11/03/2023 Tr. 203:20–22; 11/02/2023 278:2–12.

E. THE ATTACK ON THE CAPITOL

146. While Trump was speaking, large portions of the crowd began moving

with purpose from the Ellipse rally toward the Capitol building. Exs. 22, p. 22; 1007;

10/30/2023 Tr. 71:9–21; 11/02/2023 Tr. 331:22–332:15.

147. Around 12:53 p.m., the mob overran United States Capitol Police officers

at a police barricade near the Peace Circle, breaching the Capitol’s security perimeter.

Ex. 133, p. 9; 10/30/2023 Tr. 194:16–195:7. The Proud Boys, who in the moments

before led the mob in chants of “1776,” led this initial breach. Ex. 78, pp. 25-26, 104-105;

10/31/2023 Tr. 54:24–55:3.

148. Shortly before 1:00 p.m., Vice President Pence released a letter asserting

that his “role as presiding officer is largely ceremonial” and dismissed the arguments

that he could take unilateral action to overturn the election or return the Electoral

College votes to the States as contrary to his oath to the Constitution. Ex. 78, p. 78

(Finding # 247); 10/30/2023 Tr. 161:5–162:15.

149. By about 1:00 p.m., the mob had advanced to the Capitol steps and began

attacking Capitol police officers there. 10/30/2023 Tr. 201:22–202:5. At 1:00 p.m., the

joint session of Congress convened to count the electoral votes. Stipulation ¶ 14. After

Congressman Gosar and Senator Cruz objected to the certification of Arizona’s electoral

votes, the House and Senate split into their respective chambers to debate them.

10/30/2023 Tr. 139:21–140:6; 11/02/23 Tr. 190:24–192:9.

150. Trump’s speech ended around 1:10 p.m. Ex. 22, p. 24. Thousands more

marched toward the Capitol down Pennsylvania Avenue as Trump had instructed. Exs.

22, pp. B1-B23; 49; 10/30/2023 Tr. 199:8–200:8. The size of the mob grew by the

minute. 10/30/2023 Tr. 197:8–13. The mob occupied the entire West Plaza by 1:14 p.m.

Ex. 133, pp. 11, 12.

151. At 2:13 p.m., the Capitol was breached for the first time when the Proud

Boys smashed a window in the Senate wing and the mob began entering the building.

Ex. 78, p. 109 (Finding # 361).

152. The Senate recessed at 2:13 p.m., and the House suspended debate on the

objections to certification at 2:18 p.m., halting the process of the electoral certification.

Stipulation ¶ 14; Ex. 78, p. 113 (Finding # 374).

153. The mob moved immediately toward its target–the certification of the

election–and reached the House and Senate chambers within minutes. Ex. 78, p. 113

(Finding # 374); 10/30/2023 Tr. 142:9–143:2, 144:11–23, 146:16–18; 11/02/2023 Tr.

192:10–195:24.

154. Some Members of Congress removed their Congressional pins so they

would not be identified by the encroaching mob, others prepared to fight off the mob.

10/30/2023 Tr. 144:11–23.

155. The mob was armed with a variety of weapons including guns, knives,

tasers, sharpened flag poles, scissors, hockey sticks, pitchforks, bear spray, pepper

spray, and other chemical irritants. Exs. 16; 78, pp. 103, 104, 115-116 (Finding ## 342,

346, 382); 133; 1018; 10/30/2023 Tr. 74:4–10; 75:15–76:4, 105:25–106:24, 201:22–

202:5, 220:23–221:2, 224:25–225:2; 11/02/2023 Tr. 334:17–23.

156. The mob also stole objects at the Capitol to use as weapons, including

metal bars from police barricades, pieces of scaffolding, trash cans, and batons and riot

shields stolen from law enforcement. Ex. 16; 10/30/2023 Tr. 74:4–10, 75:15–76:4,

201:22–202:5.

157. The mob assaulted police officers defending the Capitol to force its way

into the building. Throughout the day, police officers were tased, crushed in metal door

frames, punched, kicked, tackled, shoved, sprayed with chemical irritants, struck with

objects thrown by the crowd, dragged, hit with objects thrown by the crowd, gouged in

the eye, attacked with sharpened flag poles, and beaten with weapons and objects that

the mob brought to the Capitol or stole on site. Ex. 78, pp. 115-116 (Finding # 382);

10/30/2023 Tr. 73:19–74:10, 87:18–88:6; 103:14–104:10, 201:22–202:5, 208:8–15,

212:14–17, 220:23–221:2, 224:25–225:2. Police deployed tear gas, pepper spray, flash

bangs, and a loudspeaker with a pre-recorded message instructing the mob to disperse,

but the mob defied those orders and remained at the Capitol. 10/30/2023 Tr. 94:20–

97:2; 11/02/2023 Tr. 176:16–177:4, 336:10–337:5.

158. Members of law enforcement feared for their lives as well as the lives of

their fellow officers, the Vice President, and the Members and staff inside the Capitol.

10/30/2023 Tr. 74:22–75:4, 210:25–211:2, 222:14–19. The attacks were deadly,

resulting in the death of Capitol Police Officer Brian Sicknick. 10/30/2023 Tr. 224:23–

225:2. Many other law enforcement officers were injured, some requiring

hospitalization for their injuries. 10/30/2023 Tr. 230:11–14.

159. Even though not everyone in the mob was violent, officers were unable to

escape or get reinforcements. 10/30/2023 Tr. 79:9–20. Law enforcement could not

differentiate between which members of the mob were violent and which were not. Id.

160. The mob’s size prevented the police from carrying out arrests for fear of

the safety of officers and the detainees. 10/30/2023 Tr. 81:9–22. The mob’s size

prevented law enforcement from using firearms or employing lethal force. 10/30/2023

Tr. 80:20–81:6. The chaos created by the mob made it futile for police to call for help

when they were individually under attack. 10/30/2023 Tr. 209:11–20. The mob’s size

made it impossible for first responders to reach those in medical distress, and when first

responders attempted to provide such aid, they were harassed by the mob and assaulted.

10/30/2023 Tr. 198:20–199:7. The presence of nonviolent members of the mob, who

refused demands to leave, contributed to these problems. Ex. 11; 10/30/2023 Tr. 82:9–

11; 90:2–93:13.

161. 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.

162. Members of the mob told officers, “Trump sent us,” “we don’t want to hurt

you, but we will; we’re getting into that building,” “you look scared and you might need

your baton,” and “take off your badges, take off your helmets, and show solidarity with

we the people or we’re going to run over you. . . . Do you think your little pea shooter

guns are going to stop this crowd,” and “it’s going to turn bad man; we have to get you

out of here. The others are coming up from the back.” Exs. 11; 14; 10/30/2023 Tr.

200:25–201:11, 202:24–203:5. The mob chanted “fight for Trump” and members yelled

into bullhorns “this is not a peaceful protest!” Ex. 21. These types of statements were

repeated at multiple locations around the Capitol during the attack where the mob faced

resistance from law enforcement. Exs. 11; 14; 10/30/2023 Tr. 200:25–201:11, 212:3–13.

163. The mob referenced war, revolution, Donald Trump, and stopping the

election certification. Members of the mob carried flags from the Revolutionary War and

the Confederate Battle Flag. Exs. 13; 133; 10/30/2023 Tr. 99:13–100:1. Their flags and

signs said, among other things, “Liberty or Death,” “Certify Honesty Not Fraud,” and

“Over Turn Biden Win,” “Pence has the power,” “Mike Pence is a bitch,” and “Lynch the

Rhinos [sic],” evoking Trump’s references to “RINOs” (Republicans in Name Only) at

the Ellipse speech. Ex. 133. They chanted “fight for Trump,” “Stop the Steal,” and “1776.”

Ex. 78, pp. 104-105 (Finding # 347); 10/30/2023 Tr. 77:25–78:11. The crowd displayed

a makeshift gallows. 10/31/2023 Tr. 120:19–121:18.

164. The mob taunted law enforcement calling them “traitors” and suggesting

that law enforcement was the problem. They yelled “you swore an oath,” “oath

breakers,” “you’re on the wrong team,” “you’re not wanted here,” “what about your

oath,” and “you’re going against our country.” Ex. 10; 10/30/2023 Tr. 73:14–18, 86:5–

10, 200:25–201:11; 212:3–13.

165. Professor Simi testified that the repeated references to 1776, “revolution,”

and the Confederate flag, are consistent with far-right extremists’ use of the terms as

literal calls for violent revolution. 10/31/2023 Tr. 94:21–95:7, 107:24–108:8, 109:3–8,

120:25–121:18. The presence of weaponry and defensive gear among a significant

portion of the crowd confirmed this purpose. 10/31/2023 Tr. 109:16–21. The mob at

times worked together. Exs. 20; 21; 10/31/2023 Tr. 115:20–116:3.

166. The January 6th Senate Report that Trump’s counsel described as “the

staff report from the Senate that was a bipartisan report” described January 6, 2021 as a

“violent and unprecedented attack on the U.S. Capitol, the Vice President, Members of

Congress and the democratic process” and that the attackers were “intent on disrupting

the Joint Session, during which Members of Congress were scheduled to perform their

constitutional obligation to count the electoral votes.” Ex. 22, p. 1; 10/31/2023 Tr.

276:21–25.

167. Amy Kremer described the event as a “horrifying” event and “an awful,

awful attack on the seat of our democracy.” 11/02/23 Tr. 65:14–20, 69:3–7.

168. The Court agrees with Congressman Buck and concludes that the attack

was “meant to disturb” Congress’s “electoral vote count.” 11/02/2023 Tr. 230:3–7,

341:24–342:8.

F. TRUMP’S REACTION TO THE ATTACK

169. By 1:21 p.m., Trump was informed the Capitol was under attack. Ex. 78, p.

96 (Finding # 316).

170. At 2:24 p.m., an hour after Trump had been informed the Capitol was

under attack, Trump tweeted: “Mike Pence didn’t have the courage to do what should

have been done to protect our Country and our Constitution, giving States a chance to

certify a corrected set of facts, not the fraudulent or inaccurate ones which they were

asked to previously certify. USA demands the truth!” Ex. 148, p. 83.

171. That tweet was read over a bullhorn to the crowd at the Capitol. Ex. 94.

172. 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.” Congressman Swalwell interpreted

President Trump’s 2:24 p.m. tweet as painting a “target” on the Capitol and threatening

the Vice President and their “personal safety and the proceedings” to certify the election.

10/30/2023 Tr. 149:2–11.

173. The Court further holds that Trump’s 2:24 p.m. tweet caused further

violence at the Capitol. Exs. 6; 15; 78, pp. 16-17 (Finding # 56); 10/30/2023 Tr. 103:14–

104:5.

174. At 2:25 p.m., the mob breached the Capitol’s East Rotunda doors. Ex. 78,

pp. 46-47 (Finding # 150).

175. At 2:25 p.m., the Secret Service evacuated Vice President Pence from his

Senate office to a more secure location. Ex. 78, pp. 16-17 (Finding # 56).

176. Around 2:30 p.m., Officer Pingeon was attacked by the mob in the

Northwest Courtyard where he was forced to the ground and had his baton stolen.

10/30/2023 Tr. 208:8–210:8.

177. Around the same time, the Senate Chamber and House floor were

evacuated. Ex. 78, pp. 35-36 (Finding # 119); 10/30/2023 Tr. 152:19–153:7.

178. At 2:38 p.m. and 3:13 p.m. Trump sent two tweets both encouraging the

mob to “remain peaceful” and “[s]tay peaceful” and asking the mob to not hurt law

enforcement. Ex. 148, pp. 83, 84. Neither of the tweets condemned the ongoing

violence or told the mob to retreat.

179. The mob’s conduct after it breached the Capitol confirmed that its

common purpose was to prevent the constitutional transfer of power by targeting Vice

President Pence and House Speaker Nancy Pelosi. Immediately after the first breach of

the Capitol at 2:13 p.m., the mob moved to the Senate and House chambers where the

certification was being debated and Pence and Pelosi were expected to preside. The mob

breached the Senate gallery and the mob made a concerted and violent effort to break

into the House chamber. Ex. 78, pp. 35-36 (Finding # 119); 10/30/2023 Tr. 155:14–21.

180. 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 1:21

p.m. and 4:17 p.m. Instead, Trump ignored pleas to intervene and instead called

Senators urging them to help delay the electoral count. When told that the mob was

chanting “Hang Mike Pence,” Trump responded that perhaps the Vice President

deserved to be hanged. Ex. 78, pp. 46-47 (Finding # 150). Trump also rebuffed pleas

from Leader McCarthy to ask that his supporters leave the Capitol stating, “Well, Kevin,

I guess these people are more upset about the election than you are.” Id.

181. 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. 10/31/2023 Tr. 246:24-247:7, 249:6-9.

182. Trump could have redeployed the 340 National Guard troops already

activated in Washington, D.C. to assist with traffic and other duties on January 6, 2021.

This group could have rapidly responded because riot gear was already stored at

convenient locations near their places of deployment throughout the city. Exs. 1027;

1031, p. 37; 10/31/2023 Tr. 259:25-260:8. There is no evidence that Trump made any

effort on January 6 to redeploy these troops to the Capitol once he knew the attack was

underway. 10/31/23 Tr. 259:25–260:11.

183. In addition to the 340 National Guard troops that had already been

activated for traffic control duty or as a quick reaction force, Trump could have ordered

deployment of additional D.C. National Guard troops once he knew about the attack on

the Capitol. Ex. 1027; 10/31/2023 Tr. 252:4–10. He could have asked the Governors of

Maryland and Virginia to authorize their state National Guards to help. 10/31/2023 Tr.

260:12–20. He could have ordered the Department of Justice rapid response teams to

the Capitol. 10/31/2023 Tr. 262:11–16. He could have authorized the Department of

Homeland Security’s rapid response team which could have deployed “in a matter of

minutes from headquarters to the Capitol.” 10/31/2023 Tr. 262:17–21.

184. Trump provided no evidence that he took any action to deploy any of these

authorities after learning of the attack on the Capitol. 10/31/2023 Tr. 264:5–8.

185. 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.

186. Finally, at 4:17 p.m. Trump called off the attack. He released a video in

which he said:

I know your pain. I know you’re hurt. We had an election that was

stolen from us. It was a landslide election, and everyone knows it,

especially the other side. But you have to go home now. We have

to have peace. We have to have law and order. We have to respect our

great people in law and order. We don’t want anybody hurt. It’s a very

tough period of time. There’s never been a time like this where such

a thing happened, where they could take it away from all of us, from

me, from you, from our country. This was a fraudulent election. But

we can’t play into the hands of these people. We have to have peace.

So go home. We love you. You’re very special. You’ve seen what

happens. You see the way others are treated that are so bad and so

evil. I know how you feel but go home and go home in peace.

Ex. 68 (emphasis added).

187. 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. It did not condemn the mob but

instead sympathized with them and praised them. It did, however, instruct the mob to

The Court considers Trump’s inaction solely for the purpose of inferring that he intended for

the crowd to engage in violence when he sent them to the Capitol “to fight like hell.” It does not

consider his inaction as independent conduct constituting engagement in an insurrection.

go home on three occasions, emphasizing to the mob that this was an order to be

followed.

188. The mob obeyed Trump’s order. Ex. 78, p. 36 (Finding # 120);

10/31/2023 Tr. 121:19-21. The statement was understood as a clear directive to cease the

attack. 10/31/2023 Tr. 122:9–23, 220:21–221:4.

189. At 6:01 p.m. Trump tweeted again: “These are the things and events that

happen when a sacred landslide election victory is so unceremoniously & viciously

stripped away from great patriots who have been badly & unfairly treated for so long. Go

home with love & in peace. Remember this day forever!” Ex. 148, p. 84.

190. 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.” Ex.

148, p. 84.

191. As Professor Simi testified, this after the fact tweet was consistent with

Trump’s pattern of communication related to political violence which always ended with

Trump praising the violence. 10/31/2023 Tr. 123:12–15.

192. 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.

193. The Court heard no evidence that Trump did not support the mob’s

common purpose of disrupting the constitutional transfer of power. To the contrary,

both his 4:17 p.m. video and 6:01 p.m. tweet support the opposite conclusion—that

Trump endorsed and intended the actions of the mob on January 6, 2021.

G. SECRETARY OF STATE PRACTICES

194. The Secretary of State is responsible for “certify[ing] the content for state

and federal offices to the ballot.” 11/01/2023 Tr. 91:4-5. The Secretary of State’s office

“is the filing office for state and federal offices for individuals seeking . . . to run for

office in Colorado.” 11/01/2023 Tr. 96:10-12. When the Secretary of State receives a

candidate’s paperwork, the office “verif[ies] the information on the application as

required under state law, and then ultimately there is a deadline by which [the] office

must certify all [contents] to the ballot,” including candidates. 11/01/2023 Tr. 96:13-17.

195. “The Secretary of State is responsible for ensuring that only eligible

candidates are placed on the ballot.” Ex. 107. In determining whether a candidate is

eligible, the Secretary “must give effect to applicable federal and state law unless a court

has held such law to be invalid.” Id.; see also 11/01/2023 Tr. 107:24-108:3. If the

Secretary of State’s office has “affirmative knowledge that a candidate is ineligible for

office, then [it] will not certify them to the ballot.” 11/01/2023 Tr. 99:14-16.

196. The office has also kept ineligible presidential candidates off the ballot.

11/01/2023 Tr. 104:24-105:4. One candidate, Abdul Hassan, informed the Secretary of

State’s office that he did not meet the constitutional requirements for the presidency

because he was not a natural-born United States citizen. 11/01/2023 Tr. 106:7-107:1.

The Secretary of State’s office informed Mr. Hassan that he was ineligible, and a court

affirmed that determination. 11/01/2023 Tr. 106:17-107:1, 108:11-17; see also Hassan v.

Colorado, 495 F.App’x 947 (10th Cir. 2012).

197. Other presidential candidates were excluded from the ballot in 2012, 2016,

and 2023 (for the 2024 ballot) because they failed to certify their compliance with

mandatory federal constitutional requirements for the presidency by completing the

required paperwork that would otherwise attest to their qualifications. 11/01/2023 Tr.

151:24-153:12.

198. Candidates, or other electors, who disagree with the Secretary of State’s

decision regarding whether to certify a candidate to the ballot can challenge the

Secretary’s decision in court. 11/01/2023 Tr. 91:18-92:2, 102:25-103:3. The office

expects such challenges in every election cycle. 11/01/2023 Tr. 101:20-102:3.

Accordingly, “[t]he Secretary’s Office is never the final arbiter of eligibility because the

Secretary’s decision to either certify a candidate or not can be challenged in court.”

11/01/2023 Tr. 108:7-10.

199. The Secretary of State’s office creates the forms used by candidates to

access the ballot, including the presidential primary forms. See 11/01/2023 Tr. 111:17-

22; see also Ex. 158.

200. The Major Party Candidate Statement of Intent for the Presidential

Primary includes, among other things, checkboxes that require the candidate to certify:

“Age of 35 Years;” “Resident of the United States for at least 14 years;” and “Natural-

born U.S. Citizen.” Ex. 158; 11/01/2023 Tr. 113:1-5. But those qualifications are not the

only qualifications for president. 11/01/2023 Tr. 113:9-12. Candidates submitting this

form must also sign and notarize the following statement: “I intend to run for the office

stated above and solemnly affirm that I meet all qualifications for the office prescribed

by law.” Ex. 158 (emphasis added).

201. For instance, the Secretary of State would not put a presidential candidate

on the ballot who had already served two terms because that would be in violation of the

Twenty-Second Amendment. That is true despite there not being a box to check for the

Twenty-Second Amendment.

202. When questioned by the Court, Ms. Rudy testified that should the

Secretary of State desire to do so, it could revise the Statement of Intent Form to add a

box confirming that the candidate had not served two terms as President. She further

testified, that should President Obama seek to be on the presidential primary ballot, that

given it was “an objective, knowable fact” that he was not qualified, “it is unlikely we

would certify that candidate’s name to the ballot.” 11/01/2023 Tr. 157:15-158:24.

203. On October 11, 2023, the Secretary of State’s office received (1) a Major

Party Candidate Statement of Intent for Presidential Primary, signed by Donald J.

Trump; (2) a State Party Presidential Primary Approval, signed by Dave Williams, the

chair of the Colorado Republican Party, stating that the “Colorado Republican Party has

determined [Donald J. Trump] is bona fide and affiliated with the party;” and (3) a

$500 filing fee from Donald J. Trump for President 2024, Inc. Ex. 158.

204. The Major Party Candidate Statement of Intent for Presidential Primary

contains the following affirmation: “I intend to run for the office stated above and

solemnly affirm that I meet all qualifications for the office prescribed by law.” Id.

Donald J. Trump signed the affirmation. Id.

205. The documents contained in Exhibit 158 are facially complete. No

additional paperwork is required for Trump to be certified to the 2024 presidential

primary ballot. 11/01/2023 Tr. 123:8-12.

206. The Secretary is holding Trump’s application “pending further direction

from the Court.” See Notice (Oct. 11, 2023).

207. The Secretary of State is required to certify the candidates who will be

listed on the 2024 presidential primary ballot on January 5, 2024. C.R.S. § 1-4-1204(1).

208. The Secretary does not certify candidates individually; rather, she certifies

the entire contents of the ballot at once. 11/01/23 Tr. 145:7-16. The Secretary intends to

certify the entire 2024 presidential primary ballot on January 5, 2024. See 11/01/2023

Tr. 145:7-16.

V. CONCLUSIONS OF LAW

209. 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.

A. CAN THE SECRETARY OF STATE EXCLUDE TRUMP FROM THE

BALLOT?

210. The Colorado Secretary of State is charged with the duty to “supervise the

conduct of primary, general, congressional vacancy, and statewide ballot issue elections”

and to “enforce the provisions of [the election] code.” C.R.S. § 1-1-107(1). When a

dispute regarding the application and enforcement of the Election Code arises,

C.R.S. § 1-1-113 is implicated. This statute provides in part:

When any controversy arises between any official charged with any

duty or function under this code and any candidate, or any officers

or representatives of a political party, or any persons who have

made nominations or when any eligible elector files a verified

petition in a district court of competent jurisdiction alleging that

a person charged with a duty under this code has

committed or is about to commit a breach or neglect of

duty or other wrongful act, after notice to the official which

includes an opportunity to be heard, upon a finding of good cause,

the district court shall issue an order requiring

substantial compliance with the provisions of this code.

The order shall require the person charged to forthwith perform the

duty or to desist from the wrongful act or to forthwith show cause

why the order should not be obeyed. The burden of proof is on the

petitioner.

C.R.S. § 1-1-113(1) (emphasis added).

211. After the filing of a “verified petition” by a registered elector and “notice to

the official which includes an opportunity to be heard,” if a court finds good cause to

believe that the election official “has committed or is about to commit a breach or

neglect of duty or other wrongful act,” it “shall issue an order requiring substantial

compliance with the provisions of [the Election Code].” C.R.S. § 1-1-113(1).

212. C.R.S. § 1-4-1204(1) provides that “[n]ot later than sixty days before the

presidential primary election, the secretary of state shall certify the names and party

affiliations of the candidates to be placed on any presidential primary election ballots.”

Each candidate must be:

seeking the nomination for president of a political party as a bona

fide candidate for president of the United States pursuant to

political party rules and [must be] affiliated with a major political

party that received at least twenty percent of the votes cast by

eligible electors in Colorado at the last presidential election.

C.R.S. § 1-4-1204(1)(b). C.R.S. § 1-4-1204(4) expressly incorporates section 1-1-113 for

“[a]ny challenge to the listing of any candidate on the presidential primary election

ballot.” Such challenges “must be . . . filed with the district court in accordance with

section 1-1-113(1).” C.R.S. § 1-4-1204(4). “Any such challenge must provide notice in a

summary manner of an alleged impropriety that gives rise to the complaint.” C.R.S. § 1-

4-1204(4).

213. In the Court’s Omnibus Ruling on Pending Dispositive Motions, the Court

left for trial the issue of whether the General Assembly has charged the Secretary of

State with the authority to investigate or enforce Section Three of the Fourteenth

Amendment.

214. Intervenors argue that the Secretary’s role is simply ministerial. They

argue “her responsibility is to either confirm that a candidate is affiliated with a party

that is a ‘major political party’ according to statute and is a bona fide candidate,

pursuant to that party’s rules, or to confirm that the candidate submitted a proper

notarized candidate’s statement of intent.”

215. The Court will not revisit its decision from the Omnibus Ruling on

Pending Dispositive Motions rejecting CRSCC’s argument that it has an unfettered right

to put constitutionally unqualified candidates on the primary ballot. The Court has read

the opinion in Growe v. Simon, No. A23-1354, 2023 WL 7392541 (Minn. November 8,

2023). C.R.S. § 1-4-1203(2)(a) provides that political parties may participate in a

presidential primary only if the party has a “qualified candidate.” C.R.S. § 1-4-1203(3)

provides the Secretary has “the same powers and shall perform the same duties for

presidential primary elections as they provide by law for other primary elections and

general elections.” In Colorado, the Secretary of State has, at least in some instances,

kept constitutionally unqualified candidates off the ballot. See Hassan, 495 F.App’x at

948 (holding that Secretary Gessler was correct in excluding a constitutionally ineligible

candidate and that “a state's legitimate interest in protecting the integrity and practical

functioning of the political process permits it to exclude from the ballot candidates who

are constitutionally prohibited from assuming office.”).

216. However, in the Court’s view there is a difference between the Secretary

having the authority to prohibit a candidate from being put on the ballot based on what

Ms. Rudy described as “an objective, knowable fact” and prohibiting a candidate from

being put on the ballot due to potential constitutional infirmity that has yet to be

determined by either a Court or Congress. 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.” Here, whether Trump is disqualified under Section Three of the Fourteenth

Amendment is not “an objective, knowable fact.”

217. The question then becomes whether Petitioners can file a C.R.S. § 1-1-113

action based on the Secretary’s impending failure to keep Trump off the ballot where the

Court does not believe the Secretary, on her own accord, has the power to keep him off

the ballot.

218. Petitioners argue that, regardless of whether the Secretary has the power

to investigate candidate qualifications, C.R.S. §§ 1-4-1204(4) and 1-1-113 authorize

eligible electors to seek a Court order barring the Secretary from placing on the ballot a

candidate who is constitutionally ineligible to assume the office they are seeking and

that, in such a proceeding, the Court evaluates the candidate’s qualifications de novo.

219. The Petitioners argue that in Hanlen v. Gessler, 333 P.3d 41, 50 (Colo.

2014), the Colorado Supreme Court made clear that “the election code requires a court,

not an election official, to determine the issue of eligibility” of a candidate. Two years

later, the Colorado Supreme Court reaffirmed that holding and again declared, “when

read as a whole, the statutory scheme evidences an intent that challenges to the

qualifications of a candidate be resolved only by the courts.” Carson v. Reiner, 370 P.3d

1137, 1139 (Colo. 2016). Two years after that, the Colorado Supreme Court noted that

even where the paper record submitted to an election official appears sufficient on its

face, courts retain the power to review extrinsic evidence in eligibility challenges. Kuhn

v. Williams, 418 P.3d 478, 485-87 (Colo. 2018). The Court held that “judicial review”

under C.R.S. § 1-1-113 is “de novo” and “includes the taking of evidence” and that the

challengers there could “present evidence demonstrating that a petition actually fails to

comply with the Election Code, even if it ‘appear[ed] to be sufficient’ in a paper review.”

Id. at 485-86 (quoting C.R.S. § 1-4-909(1)).

220. Kuhn is particularly instructive in this regard. There, the Court held that

the Secretary properly relied on the information before him when certifying the

Lamborn Campaign’s petition to appear on the ballot. Id. at 485. The Court held,

however, that “the question becomes whether the Secretary has another relevant duty he

might be ‘about to’ breach or neglect, or some other relevant wrongful act in which he

might be ‘about to’ engage.” Id. (quoting C.R.S. § 1-1-113(1)).

221. The Court held that “[s]hould the court determine that the petition is not

in compliance with the Election Code, the election official should certainly ‘commit a

breach or neglect of duty or other wrongful act’” and that it was proper for the district

court to review evidence that was not available to the election official. Id. (quoting C.R.S.

§ 1-1-113(1)).

222. The question before the Court then is does the Election Code incorporate

Section Three of the Fourteenth Amendment? The Election Code states that the

presidential primary process is intended to “conform to the requirements of federal

law,” which includes the U.S. Constitution. C.R.S. § 1-4-1201. Further, C.R.S. § 1-4-

1203(2)(a) provides that political parties may participate in a presidential primary only

if the party has a “qualified candidate.”

223. Ms. Rudy testified that the Secretary has previously kept candidates off the

ballot who do not meet the requirements of Article II, Section 1, Clause 5 of the U.S.

Constitution. She further testified that the Secretary would likely enforce the Twenty-

Second Amendment should Barack Obama or George W. Bush attempt to be put on the

primary ballot.

224. While the Court agrees with Intervenors that the Secretary cannot

investigate and adjudicate Trump’s eligibility under Section Three of the Fourteenth

Amendment, the Election Code gives this Court that authority. C.R.S. § 1-4-1204(4)

(“[T]he district court shall hear the challenge and assess the validity of all alleged

improprieties” and “issue findings of fact and conclusions of law.”); see also Hassan,

495 F.App’x at 948 (“a state's legitimate interest in protecting the integrity and practical

functioning of the political process permits it to exclude from the ballot candidates who

are constitutionally prohibited from assuming office”); Munro v. Socialist Workers

Party, 479 U.S. 189, 193-95 (1986) (affirming exclusion of candidate from ballot under

state law based on compelling state interest in protecting integrity and stability of

political process); Bullock v. Carter, 405 U.S. 134, 145 (1972) (“Moreover, a State has an

interest, if not a duty, to protect the integrity of its political processes from frivolous or

fraudulent candidacies”).

B. DID PRESIDENT TRUMP ENGAGE IN AN INSURRECTION?

1. Definition of Insurrection

225. Section Three of the Fourteenth Amendment, passed in 1866 and ratified

by the states in 1868, provides that:

No Person shall be a Senator or Representative in Congress,

or elector of President and Vice President, or hold any office,

civil or military, under the United States, or under any State,

who, having previously taken an oath, as a member of

Congress, or as an officer of the United States, or as a

member of any State legislature, or as an executive or judicial

officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of each

House, remove such disability.

U.S. CONST. amend. XIV, § 3.

226. Section Three of the Fourteenth Amendment was primarily written to

prevent officials who left to join the Confederacy from returning to office. When many

former confederates sought to be seated as if nothing happened, Republicans in

Congress found it necessary to act and exclude them from positions of authority unless

they demonstrated repentance or deserved forgiveness. 11/1/23 Tr. 21:11–23.

Congressional debates surrounding Section Three make clear that it was intended not as

a punishment for crime, but to add an additional qualification for public office. 11/01/23

Tr. 22:2–6.

227. The oath is central to Section Three. 11/01/23 Tr. 22:9–25. It served a

limiting function, because Section Three only applies to those who had betrayed a

previously sworn oath to the Constitution–which included those most responsible for

the Civil War. 11/01/23 Tr. 22:9–25. Supporters of Section Three believed that such

oathbreakers could not again take office and swear the oath without committing “moral

perjury.” 11/01/23 Tr. 22:9–25.

228. The history of Section Three and its passage indicate that the provision is

not limited to the events of the Civil War. The language of Section Three refers generally

to insurrection or rebellion, and senators in the debate made clear their intent for it to

apply to future insurrections. 11/01/23 Tr. 23:4–10; 11/03/23 Tr. 42:4–43:4.

229. In the years following ratification of the Fourteenth Amendment, Section

Three was enforced by various entities. These enforcements came before the enactment

of federal implementing legislation in 1870. 11/01/23 Tr. 23:14–24:21.

230. Congress has the power to remove the disability by a two-thirds vote, and

Congress passed a series of measures that would give amnesty to people by name, then

afterwards a general amnesty to all the people then covered by Section Three. 11/01/23

Tr. 25:4–19.

231. Section Three qualifies “insurrection” by the phrase “against the same,”

referring to the Constitution of the United States to which the oath was sworn. U.S.

CONST. amend. XIV, § 3. That limits the scope of the provision by excluding

insurrections against state or local law, and including only insurrections against the

Constitution, which officials have sworn an oath to support and have now broken.

11/01/23 Tr. 36:10–37:15.

232. As the Supreme Court declared during the Civil War, “[i]nsurrection

against a government may or may not culminate in an organized rebellion, but a civil

war always begins by insurrection against the lawful authority of the Government.” The

Amy Warwick, 67 U.S. 635, 666 (1862).

233. The Court finds that an “insurrection” at the time of ratification of the

Fourteenth Amendment was understood to refer to any public use of force or threat of

force by a group of people to hinder or prevent the execution of law.

234. This understanding of “insurrection” comports with the historical

examples of insurrection before the Civil War, with dictionary definitions from before

the Civil War, with judicial opinions during the same time, and with other authoritative

legal sources. See e.g., Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800) (“any

insurrection or rising of any body of people, within the United States, to attain or effect,

by force or violence any object of a great public nature, or of public and general (or

national) concern, is a levying war against the United States”); United States v.

Hanway, 26 F. Cas. 105, 127–28 (C.C.E.D. Pa. 1851); Chancely v. Bailey, 37 Ga. 532,

548–49 (1868) (“If the late war had been marked merely by the armed resistance of

some of the citizens of the State to its laws, or to the laws of the Federal Government, as

in the cases in Massachusetts in 1789, and in Pennsylvania in 1793, it would very

properly have been called an insurrection”) (emphasis original).

235. “When interpreting the text of a constitutional provision or statute,

[courts] often resort to contemporaneous dictionaries or other sources of context to

ensure that we are understanding the word in the way its drafters intended.” Bevis v.

City of Naperville, Illinois, No. 23-1353, 2023 WL 7273709 at *11 (7th Cir. Nov. 3,

2023).

236. Noah Webster’s, An American Dictionary of the English Language in 1828

defined insurrection as:

a rising against civil or political authority; the open and active

opposition of a number of persons to the execution of law in a

city or state. It is the equivalent to sedition, except that

sedition expresses a less extensive rising of citizens. It differs

from rebellion, for the latter expresses a revolt, or an attempt

to overthrow the government, to establish a different one or

to place the country under another jurisdiction.

NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). Another

contemporary dictionary from 1848, John Boag’s A Popular and Complete English

Dictionary, had an identical definition. JOHN BOAG, A POPULAR AND COMPLETE ENGLISH

DICTIONARY 727 (John Boag ed., 1848); 11/01/2023 Tr. 31:16-32:2.

237. Trump’s expert witness, Robert Delahunty, offered an opinion that the

meaning of “insurrection” at the time was less clear. 11/03/23 Tr. 43:15–51:7. However,

Professor Delahunty did not identify any historical sources that appeared to adopt a

materially different view. In fact, Professor Delahunty acknowledges that “insurrection

need not rise to the level of a rebellion” or to “the level of a civil war,” which supports

Magliocca’s definition of “insurrection.” 11/03/23 Tr. 133:8–23.

Importantly,

Delahunty did not offer an alternate definition of insurrection.

238. Intervenors have offered an alternate definition of insurrection as “the

taking up of arms and preparing to wage war upon the United States.”

239. However, in the context of Section Three, and in accordance with the

historical understanding, the Court finds that such insurrection must be “against” the

“Constitution of the United States” and not against “the United States” as the

Intervenors would suggest.

240. Considering the above, and the arguments made at the Hearing and in the

Parties’ proposed findings of fact and conclusions of law, the Court holds that an

insurrection as used in Section Three of the Fourteenth Amendment is (1) a public use of

The Court also considered Professor Delahunty’s opinion that this definition is over inclusive

and would potentially include the use of force to prevent the delivery of the U.S. Mail. Article I,

Section 8, Clause 7 gives Congress the authority to designate mail routes and construct or

designate post offices, and presumably the authority to carry, deliver, and regulate the mail of

the United States as a whole. See U.S. CONST. art. I, § 8, cl. 7. Professor Delahunty argued that

the definition of insurrection put forth by the Petitioners would include someone preventing the

mail man from delivering mail. Even if the Court interprets delivering mail as “execution of the

Constitution,” preventing delivery would only be an insurrection if it was accomplished by a

coordinated group of people preventing the delivery of mail and that group was preventing the

delivery of mail by force.

force or threat of force (2) by a group of people (3) to hinder or prevent execution of the

Constitution of the United States.

241. The Court further concludes that the events on and around January 6,

2021, easily satisfy this definition of “insurrection.”

242. Thousands of individuals descended on the United States Capitol. Many of

them were armed with weapons or had prepared for violence in other ways such as

bringing gas masks, body armor, tactical vests, and pepper spray. The attackers

assaulted law enforcement officers, engaging them in hours of hand-to-hand combat

and using weapons such as tasers, batons, riot shields, flagpoles, poles broken apart

from metal barricades, and knives against them.

243. The mob was coordinated and demonstrated a unity of purpose. The mob

overran police lines outside the Capitol, broke into the Capitol through multiple

entrances, and searched out members of Congress and the Vice President who were still

inside the Capitol building. They marched through the building chanting in a manner

that made clear they were seeking to inflict violence against members of Congress and

Vice President Pence.

244. The mob’s purpose was to prevent execution of the Constitution so that

Trump remained the President. Specifically, the mob sought to obstruct the counting of

the electoral votes as set out in the Twelfth Amendment and thereby prevent the

peaceful transfer of power.

2. Definition of Engage

245. Section Three of the Fourteenth Amendment provides that no person shall

hold certain offices who, “having previously taken an oath . . . shall have engaged in

insurrection or rebellion . . . or given aid or comfort to the enemies thereof.” Petitioners

argue that Trump “engaged” in insurrection in two primary ways: (1) through

incitement, and (2) through his conduct, by organizing and inspiring the mob and by his

inaction during the January 6, 2021 attack on the Capitol.

246. Trump argues that “engage,” as used in Section Three of the Fourteenth

Amendment demands a significant level of activity beyond mere words or inaction, as

alleged. The Court therefore must resolve the meaning of “engage” as used in Section

Three of the Fourteenth Amendment. The Court first considers whether incitement

qualifies as “engagement.”

247. Trump’s primary argument that incitement fails to meet the constitutional

standard of “engagement” stems from the Second Confiscation Act, passed in 1862. The

Second Confiscation Act, among other things, made it a crime for any person to “incite,

set on foot, assist, or engage in any rebellion or insurrection against the authority of the

United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in,

or give aid and comfort to, any such existing rebellion or insurrection.” 12 Stat. 589,

590.

248. The argument, generally, is that the Second Confiscation Act distinguished

between “incitement” and “engagement” by virtue of listing them separately, thereby

suggesting that they were understood to be separate activities. Further, he argues, as

Section Three of the Fourteenth Amendment was patterned, in part, on the Second

Confiscation Act, and based disqualification on “engagement,” and not “incitement” or

“setting on foot,” Congress did not intend to disqualify those who merely incited

insurrection or rebellion. Lastly, Trump argues that certain cases in Congress in 1870

suggest that the Congressional understanding of Section Three did not include

incitement as engagement.

249. Petitioners’ argument on this subject is essentially that constitutional

amendments generally are less granular than criminal statutes, and so it is not

surprising (or determinative) that Section Three provided only for “engagement” and

did not specify incitement; further, evidence of the application, interpretation, and

enforcement of the term “engage” as used exists and suggests a broader definition that

encompasses incitement. Of principal import to Petitioners’ argument are the opinions

of Attorney General Henry Stanbery, which, generally, described “engagement” as a

voluntary, direct, overt act done with the intent to further the goals of the Confederacy,

and distinguished acts of charity, compulsory acts, and the mere harboring of disloyal

sentiments uncoupled from activity. Further, Petitioners also point to Congressional

actions, concerning members precluded from taking their seats due to conduct which

Petitioners argue illustrates the Congressional understanding of Section Three.

250. Having considered the arguments, the Court concludes that engagement

under Section Three of the Fourteenth Amendment includes incitement to insurrection.

The Court has reviewed The Congressional Globe and Hinds’ Precedents regarding the

cases of Representatives Rice and McKenzie, cited by Trump, and finds that they offer

little to no guidance on the question before the Court. Both cases concerned fact

questions as to whether the Representatives provided “aid or comfort” to the enemies of

the United States, and not whether they had “engaged” in insurrection or rebellion.

Though the Court acknowledges the adjacency of the issues, the cases remain

unpersuasive as they dealt with a discrete issue in highly distinguishable circumstances

from the present case.

251. Similarly, the Court has reviewed the Congressional cases the Petitioners

cite and finds that they, too, are inapposite and, therefore, unhelpful. The cases of

Philip Thomas and John Young Brown likewise considered whether aid and comfort had

been given to the enemies of the United States, and both were assessed pursuant to the

standard supplied by a congressional oath which required would-be congressmen to

swear that they had not “voluntarily given aid, countenance, counsel, and

encouragement to persons engaged in armed hostility to the United States.” Again, the

issues presented by these cases go beyond the question before this Court and

consequently provide little utility.

252. Further, the Court is not convinced that the Second Confiscation Act

compels the conclusion that Congress deliberately omitted other distinct unlawful acts

such as incitement by requiring only that a person shall not have engaged in

insurrection or rebellion. Section Three of the Fourteenth Amendment is not a mere

revision, recodification, or consolidation of the Second Confiscation Act, and so the

Court finds that it has limited utility in interpretating Section Three.

253. Further, this Court is mindful that Section Three is a constitutional

provision, and as such, its provisions “naturally…must receive a broad and liberal

construction.” See Protestants & Other Ams. United for Separation of Church & State

v. O’Brien, 272 F.Supp. 712, 718 (D.D.C. 1967) (citing M’Culloch v. Maryland, 17 U.S.

316, 407 (1819) (nature of constitution necessarily requires “that only its great outlines

should be marked, its important objects designated, and the minor ingredients which

compose those objects, be deduced from the nature of the objects themselves.”); see also

U.S. v. Classic, 313 U.S. 299, 316 (1941) (when interpreting constitution “we read its

words, not as we read legislative codes which are subject to continuous revision with the

changing course of events, but as the revelation of the great purposes which were

intended to be achieved by the Constitution as a continuing instrument of

government.”).

254. The Court finds more persuasive the opinions of Attorney General

Stanbery, which adopted an unequivocally broad interpretation of “engagement” in

insurrection. Attorney General Stanbery, on the subject, opined that “an act to fix upon

a person the offence of engaging in rebellion under this law, must be an overt and

voluntary act, done with the intent of aiding or furthering the common unlawful

purpose.” The Reconstruction Acts, 12 Op. Att’y Gen. 182, 204 (1867). Specifically, as it

relates to incitement, he opined “disloyal sentiments, opinions, or sympathies would not

disqualify, but where a person has by speech or by writing, incited others to engage in

rebellion, he must come under the disqualification.” Id. at 205; see also United States v.

Powell, 65 N.C. 709 (C.C.D.N.C. 1871) (the Court, instructing jury, that “the word

‘engage’ implies, and was intended to imply, a voluntary effort to assist the Insurrection

or Rebellion, and to bring it to a successful termination.”). Stanbery further rejected the

notion that a person need levy war or take up arms to have “engaged” in insurrection or

rebellion. The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 161-62 (“…it does not

follow that other classes than those who actually levied war and voluntarily joined the

ranks of the rebels are to be excluded, taking it to be clear, that in the sense of this law

persons may have engaged in rebellion without having actually levied war or taken

arms…persons who, in their individual capacity, have done any overt act for the purpose

of promoting the rebellion, may well be said, in the meaning of this law, to have engaged

in rebellion.”). The Court agrees that “engage” was not intended to be limited to the

actual physical, prosecution of combat, or likewise import a necessity that an individual

take up arms.

255. Lastly, it would be anomalous to exclude those insurrectionists or rebels

who, having taken an oath, participated in the insurrection or rebellion through

instigation or incitement. Instigation and incitement are typically actions taken by

those in leadership roles, and not, for example, by those on the front lines, with weapon

in hand. To exclude from disqualification such people would seem to defeat the purpose

of disqualification, at least as it relates to potential leaders of insurrection. Intervenors’

position that “engage” requires more than incitement, therefore, undermines a

significant purpose of the disqualification, and as such the Court cannot favor this

interpretation. Jarrolt v. Moberly, 103 U.S. 580, 586 (1880) (“A constitutional

provision should not be construed so as to defeat its evident purpose, but rather so as to

give it effective operation and suppress the mischief at which it was aimed.”); Classic,

313 U.S. at 316 (when interpreting constitution “we cannot rightly prefer, of the possible

meaning of its words, that which will defeat rather than effectuate the Constitutional

purpose.”).

256. The Court does not endeavor to fully define the extent to which certain

conduct might qualify as “engagement” under Section Three of the Fourteenth

Amendment; 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.” The definition of incitement meets this connotation.

“Incitement,” as the Court has found, requires a voluntary, intentional act in furtherance

of an unlawful objective; such an act is an active, affirmative one.

257. As discussed below, 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.

3. Does Engage Include Inaction?

258. Intervenors argue this Court should not consider Trump’s failure to act on

January 6, 2021 as evidence that he engaged in an insurrection.

The Court does note that at no point in this proceeding has Trump (or any other party) argued

that some type of appropriate criminal conviction is a necessary precondition to disqualification

under Section Three. There is nothing in the text of Section Three suggesting that such is

required, and the Court has found no case law or historical source suggesting that a conviction is

a required element of disqualification.

259. Petitioners argue that Trump’s intentional dereliction of duty was

undertaken with the purpose of helping the mob achieve their goal of obstructing the

Electoral College certification and it is therefore an independent basis for finding that

Trump engaged in insurrection.

260. The Court holds that it need not look further than the words of Section

Three to conclude that a failure to act does not constitute engagement under Section

Three.

261. Section Three provides two disqualifying offenses: (1) engaging in

insurrection or rebellion; or (2) giving aid or comfort to enemies of the United States.

U.S. CONST. amend. XIV, §3. Under a plain reading of the text, “engag[ing]” is distinct

from” giv[ing] aid or comfort to.” Id. In the Court’s view engaging in an insurrection

requires action whereas giving aid and comfort could include taking no action.

262. Because the Petitioners do not argue that Trump gave aid or comfort to an

enemy of the United States, the Court holds that Trump’s inaction as it relates to his

failure to send in law enforcement reinforcements it is not an independent basis for

finding he engaged in insurrection.

263. That does not mean that Trump’s failure to condemn the January 6, 2021

attackers (at any point during the attack), his failure to tell the mob to go home (for

three hours), or his failure to send reinforcements to support law enforcement has no

relevance. To the contrary, the Court holds that all three of these failures are directly

relevant to the question of whether the Petitioners have proven the specific intent

required under Section Three.

4. The First Amendment’s Application

264. Trump has advanced the argument that the conduct at the core of this case

is pure speech, and as such, is afforded robust protections under the First Amendment.

Trump raised this issue in his Special Motion to Dismiss Pursuant to C.R.S. § 13-20-

1101(3)(a), in his subsequent motion to dismiss, and again during his motion for a

directed verdict at trial. The argument relies heavily on Brandenburg v. Ohio, 395 U.S.

444 (1969) and its progeny, and (broadly speaking) contends that Trump’s purported

involvement in the January 6, 2021 attack amounts to nothing more than pure speech

which, under the Brandenburg test, is only sanctionable as incitement if such speech

satisfies the requirements of imminence, intention, and tendency to produce violence.

In his motion for a directed verdict, Trump argued that Brandenburg requires an

objective analysis of the speaker’s words when considering the test, citing the relatively

recent Sixth Circuit decision Nwanguma v. Trump, 903 F.3d 604 (6th Cir. 2018).

265. Petitioners generally respond that they seek disqualification under Section

Three of the Fourteenth Amendment not just for speech, but for conduct, as well, and as

such, the First Amendment provides no protection. They further argue that, even if the

First Amendment would normally operate to shield Trump’s conduct from sanction, it

has no application here where the sanction sought is itself required by the Constitution.

Lastly, they argue that, even if Brandenburg applies to the proceeding, Trump’s conduct

satisfies the test and, consequently, his speech is appropriately subject to sanction as

falling outside of the First Amendment protections.

266. Before resolving the arguments of the Parties, the Court explores the lay of

the land when it comes to First Amendment jurisprudence on the question of

inflammatory political speech.

a. Legal Backdrop

267. The Court starts with Brandenburg, it being the central case at issue and

providing the namesake for the test the Court is to consider employing. The appellant in

Brandenburg was the leader of a local Ku Klux Klan chapter, convicted under the Ohio

Criminal Syndicalism statute for “advocating the duty, necessity, or propriety of crime,

sabotage, violence, or unlawful methods of terrorism as a means of accomplishing

industrial or political reform” and for “voluntarily assembl(ing) with any society, group,

or assemblage or persons formed to teach or advocate the doctrines of criminal

syndicalism.” 395 U.S. at 444-45 (quoting Ohio Rev. Code Ann. § 2923.13, repealed by

1972 H 511). The Supreme Court of the United States held that the Ohio Criminal

Syndicalism statute was unconstitutional on its face. Id. at 448-49. The Brandenburg

Court held that developments in First Amendment jurisprudence favored “the principle

that the constitutional guarantees of free speech . . . do not permit a State to forbid or

proscribe advocacy of the use of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or

produce such action.” Id. at 447. The Brandenburg Court cited Noto v. United States,

367 U.S. 290, 297-98 (1961) for the proposition that “the mere abstract teaching . . . of

the moral propriety or even moral necessity for a resort to force and violence, is not the

same as preparing a group for violent action and steeling it to such action.” 395 U.S. at

448.

268. Almost a decade later, the Supreme Court considered the intersection of

concerted political action and violence in Nat’l Ass’n for the Advancement of Colored

People v. Claiborne Hardware Co., 458 U.S. 886 (1982). The case considered the

boycott of white merchants in Claiborne County, Mississippi, which began in 1966. Id.

at 889.

269. At the trial court level, the merchants were awarded damages for lost

profits from a seven-year period on three theories. Id. at 893. The Mississippi Supreme

Court sustained the entirety of the damages imposed on the theory that the boycotters

had agreed to use force, violence, and threats to effectuate the boycott. Id. at 895. The

theory was that the boycott employed force and threats, which caused otherwise willing

patrons to forego the boycotted businesses, rendering the entire boycott unlawful and

the organizers liable for the entire cost of the boycott. Id. The entire history of the

boycott will not be recounted by this Court, here; however, there are some salient details

during the boycott that are relevant to the Court’s task. On April 1, 1966, the Claiborne

County branch of the National Association for the Advancement of Colored People

convened and unanimously voted to boycott the white merchants of Port Gibson and

Claiborne County. Id. at 900. Charles Evers gave a speech on that occasion, and though

it was not recorded, the trial court found that Evers told the audience that “they would

be watched and that blacks who traded with white merchants would be answerable to

him.” Id. at 900, n. 28 (emphasis original). Further, according to the Sheriff, who

attended, Evers told the crowd that “any ‘uncle toms’ who broke the boycott would ‘have

their necks broken’ by their own people.” Id. The boycott proceeded for several years.

Id. at 893.

270. On April 18, 1969, a young black man named Roosevelt Jackson was shot

to death by the Port Gibson, Mississippi, police. Id. at 902. Crowds gathered and

protested the killing. Id. On April 19, Charles Evers gave a speech during which he

warned that boycott violators would be “disciplined by their own people” and that the

Port Gibson Sheriff “could not sleep with boycott violators at night.” Id. On April 21,

Charles Evers (among others) gave another speech stating “if we catch any of you going

in any of them racist stores, we’re gonna break your damn neck.” Id. The trial court

found that several instances of boycott-related violence had occurred over the preceding

three years. Id. at 903-06. These included, among other things, the publication of the

names of boycott-violators and subsequent ostracization and name-calling, instances of

shots being fired through windows of homes owned by boycott violators, bricks and

stones being thrown through car windows, and the trampling of a flower garden. Id. All

these instances of violence occurred in 1966. Id. at 906.

271. The Supreme Court found that “[t]hrough speech, assembly, and petition

– rather than through riot or revolution – petitioners sought to change a social order

that had consistently treated them as second-class citizens.” Id. at 912. The Supreme

Court recognized that, though these activities are constitutionally protected, the

Mississippi Supreme Court’s ruling was not predicated on the theory that state law

prohibited a nonviolent, politically-motivated boycott, but rather on the theory that it

had constituted an agreement to use violence, fear, and intimidation. Id. at 915. The

Supreme Court was emphatic that “the First Amendment does not protect violence,”

however it may masquerade. Id. at 916. The Court found that it was undisputed that

some acts of violence had occurred in the context of the boycott. Id. However, the Court

went on to find that in such circumstances, where violence occurs “in the context of

constitutionally protected activity . . . ‘precision of regulation’ is demanded.” Id.

(quoting Nat’l Ass’n for the Advancement of Colored People v. Button, 371 U.S. 415, 438

(1963)).

272. Relevant to the question before the Court is the Supreme Court’s analysis

of the liability imposed on Charles Evers. After noting that Evers could not be held

liable by virtue of his association with the boycott alone, the Supreme Court

acknowledged that the content of Evers’ speeches was the purported basis for his

liability. Id. at 926.

273. The Supreme Court found that Evers’ speech did not meet the necessary

standard. Id. at 929. Emphasizing the distinction between mere advocacy for violence

in the abstract, which is afforded protection, and incitement, the Supreme Court found

that Evers’ speech “generally contained an impassioned plea for black citizens to unify,

to support and respect each other, and to realize the political and economic power

available to them.” Id. at 928. Acknowledging that, during Evers’ speech, “strong

language was used,” the Supreme Court noted that, with one possible exception, “the

acts of violence identified in 1966 occurred weeks or months after [Evers’] April 1, 1966

speech” and that there was no finding “of any violence after the challenged 1969

speech.” Id.

274. The Supreme Court held that “Strong and effective extemporaneous

rhetoric cannot be nicely channeled into purely dulcet phrases. An advocate must be

free to stimulate his audience with spontaneous and emotional appeals for unity and

action in a common cause. When such appeals do not incite lawless action, they must be

regarded as protected speech.” Id. The Supreme Court qualified its findings noting that

“[i]f there were other evidence of [Evers’] authorization of wrongful conduct, the

references to discipline in the speeches could be used to corroborate that evidence.” Id.

at 929. But, because there was “no evidence--apart from the speeches themselves--,”

that Evers authorized, ratified, or directly threatened acts of violence, the theory failed.

Id.

275. In summarizing its opinion, the Supreme Court noted litigation of this

type is an extremely delicate matter, as the circumstances exist on a knife’s edge

between fundamental rights concerning association and concerted political activity, and

the “special dangers” of conspiratorial activity. Id. at 932-33.

276. This Court undertakes its task mindful of the necessity of discharging the

sort of “precision of regulation” necessary to ensure that the foundational First

Amendment rights Petitioners’ challenge implicates are not improperly curtailed.

Button, 371 U.S. at 438. What is also clear, however, is that violence is not protected

expression: the Constitution does not protect lawlessness masquerading as political

activism.

b. Does Brandenburg Apply?

277. The Court first considers Petitioners’ contention that Brandenburg and its

progeny have no application to this case. Petitioners first argue that their requested

relief is not based on speech, but on conduct. Specifically, they argue that Trump’s

conduct, while containing elements of speech, nevertheless constituted conduct, and

point to his inaction during the insurrection, despite having knowledge of the violence

and the authority (and affirmative duty) to intercede. Petitioners further distinguish

Brandenburg and related cases by pointing out that the limitation at issue here is

imposed by virtue of the Constitution itself (and not state statute or regulation), applies

to a limited category of people (i.e. those who have taken an oath to support the

Constitution) and that the “penalty” imposed is not civil or criminal liability, but merely

disqualification, a standard on who may hold office, imposed only by way of

Constitutional Amendment. Lastly, they argue that any apparent conflict between

Section Three of the Fourteenth Amendment and the First Amendment is easily

reconciled, as disqualification for engaging in rebellion or insurrection could not reach

mere disloyal sentiments or the abstract teaching of the propriety of disloyalty but

instead requires something more.

278. With respect to Petitioners argument that their request for relief is based

on conduct and not speech the Court disagrees. The Court has already ruled on the

argument’s that Trump’s inaction constitutes “engagement.” Further, the “conduct”

leading up to the events of January 6, 2021, are predicated on public speeches and

statements and therefore are appropriately analyzed as “speech.” The Court

emphasizes, however, that it considers Trump’s actions and inactions prior to and on

January 6, 2021 as context and history to inform its understanding of his speech on

January 6, 2021 and the tweets on January 6, 2021.

279. Regarding the argument that Section Three of the Fourteenth

Amendment is nonpunitive and merely imposes a qualification for office, and therefore

Brandenburg’s exacting standard is inapplicable, there is no direct guidance. The

nearest guidance this Court can find on the question is Bond v. Floyd, 385 U.S. 116

(1966). There, a duly elected state legislator was prevented from taking his seat because

of certain endorsements and statements he had made concerning his opposition to the

Vietnam War and the draft. Id. at 118-25. His expulsion was affirmed by a federal court

on the grounds that his conduct constituted a call to action to resist the draft. Id. at 127.

The Supreme Court considered the intersection of a legislative oath of loyalty, the

requirement under Article VI that he swear one, and the First Amendment. Id. at 131-

32. The Court found that Bond’s disqualification violated the First Amendment, noting

the danger that a majority faction might use the oath of loyalty to suppress dissenting

political views, and finding that the speech at issue did not constitute a call to unlawfully

resist the draft and as such did not demonstrate any “incitement to violation of law.” Id.

at 132-34.

280. The Bond Court emphasized the distinction between discussion,

contemplation, and advocacy, on one hand, and calls for lawlessness, on the other. Id.

at 116. Bond was cited by the Brandenburg Court for this principle. 395 U.S. at 448.

281. While the Court believes that there is certainly room to distinguish the

conduct at issue, here, and the conduct at issue in Bond, and does not suggest that the

factual circumstances between the two cases are at all similar, the lessons from

Brandenburg-related cases are clear: in order for speech to lose its protection, it must

cross the threshold from abstraction to action; it must be used as a means of force, not a

means of contemplation of advocacy. See, e.g., U.S. v. Dellinger, 472 F.2d 340, 360 (7th

Cir. 1972) (the question at the heart of incitement is “whether particular speech is

intended to and has such capacity to propel action that it is reasonable to treat such

speech as action.”). Speech that constitutes an integral tool in furtherance of the lawless

act loses its distinction and becomes an instrument of force. See Milk Wagon Drivers

Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 293 (1941)

(“Utterance in a context of violence can lose its significance as an appeal to reason and

become part of an instrument of force. Such utterance was not meant to be sheltered by

the Constitution.”). Bond suggests that these same principles apply with equal force in

the context of elected officials and loyalty oaths.

282. Acknowledging the foregoing principles, in this Court’s view, reconciles

the First and Fourteenth Amendments to the extent there is any conflict. Applying the

Brandenburg standard to questions of incitement as “engagement,” even in the context

of elected officials and loyalty oaths, ensures that mere “disloyal sentiments, opinions,

or sympathies” do not result in disqualification from office. It ensures that elected

officials are afforded the appropriate breathing space to discuss public policy.

Therefore, to the extent the Petitioners seek Trump’s disqualification on the basis that

he engaged in insurrection through incitement, it must be proven that his speech was

intended to produce imminent lawless action and was likely to do so.

c. The Brandenburg Standard

283. First, before undertaking the Brandenburg analysis, the Court addresses

the argument Trump made during its motion for a directed verdict that the Court ought

to consider only the “objective meaning” of the language at issue. The Sixth Circuit

considered and rejected the importation of an “objective analysis” in Nwanguma, and

this Court likewise finds that “objectivity” is not a required part of the Brandenburg

test. 903 F.3d at 613.

284. As the U.S. Supreme Court observed, the court is obligated to make an

independent examination of the whole record when considering the “content, form, and

context” of the speech. Snyder v. Phelps, 562 U.S. 443, 453-54 (2011) (quoting New

York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)). Unlike in Nwanguma, the

“whole record” here consists of more than just the Ellipse speech and more than just the

plain language used. Ultimately, all language is, at its core, a system of signals (whether

through sounds, symbols, or otherwise) designed to convey meaning from a speaker to

an audience. An inquiry into a speaker’s intent can appropriately probe what the

speaker understands or knows about how his audience will perceive his speech. This is

not an inquiry into the “reaction of the audience,” but rather asks whether, and in what

way, the speaker knows how his choice of language will be understood, and, therefore,

what he “intends” his speech to mean as evidenced by his use of language. Watts v.

United States, 394 U.S. 705 (1969) (“taken in context, and regarding the expressly

conditional nature of the statement and the reaction of the listeners, we do not see how

it could be interpreted otherwise.”); Hess v. Indiana, 414 U.S. 105, 108 (1973)(“there

was no evidence or rational inference from the import of the language that his words

were intended to produce, and likely to produce, imminent disorder.”).

285. To assess whether Trump intended to produce disorder and whether his

words were likely to produce disorder, the Court must consider his knowledge or

understanding of how his words would be perceived by his audience. Such an inquiry

requires the Court to consider the history of Trump’s relationship to and interaction

with extremist supporters and political violence. See, e.g., Claiborne Hardware Co.,

458 U.S. at 929 (noting that “if there were other evidence of his [Evers’] authorization of

wrongful conduct, the references to discipline in the speeches could be used to

corroborate that evidence.”).

286. Second, the Court addresses the issue of the intent required to establish

incitement. Trump has raised the issue of the requisite level of intent to be applied in

this matter and, by the Court’s reading, the parties are largely in agreement. 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. Under Brandenburg, the

inquiry is whether the speech at issue is “[1] intended to produce, and [2] likely to

produce, imminent disorder.” Counterman v. Colorado, 600 U.S. 66, 97 (Sotomayor,

J., concurring in part) (citation omitted). The U.S. Supreme Court in Counterman

wrote “when incitement is at issue, we have spoken in terms of specific intent,

presumably equivalent to purpose or knowledge.” 600 U.S. at 81. “A person acts

purposefully when he ‘consciously desires’ a result.” Id. at 79 (citation omitted). “A

person acts knowingly when ‘he is aware that [a] result is practically certain to follow.”

Id. (citation omitted). The Counterman Court noted that knowledge is “not often

distinguished from purpose.” Id.; see also Tison v. Arizona, 481 U.S. 137, 150 (1987)

(“one intends certain consequences when he desires that his acts cause those

consequence or knows that those consequences are substantially certain to result from

his acts.”).

287. For this Court to find that Trump incited an insurrection, the Court must

first find that he had the specific intent (either purpose or knowledge) to produce the

insurrection. A finding that Trump had the purpose or knowledge of producing the

insurrection is sufficient to satisfy the requirement that he “engaged” in insurrection

through an intentional act.

5. Application of Brandenburg

288. 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. First, the 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. Next, the Court

concludes that the language Trump employed was likely to produce such lawlessness.

289. Regarding Trump’s specific intent (either purpose or knowledge), the

Court considers highly relevant Trump’s history of courting extremists and endorsing

political violence as legitimate and proper, as well as his efforts to undermine the

legitimacy of the 2020 election results and hinder the certification of the Electoral

College results in Congress. Trump’s history of reacting favorably to political violence

committed at his rallies or in his name, as well as his cultivation of relationships with

extremist political actors who frequently traffic in violent rhetoric, is well-established.

Trump has consistently endorsed violence and intimidation as not only legitimate

means of political expression, but as necessary, even virtuous. Further, the 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.

290. In addition to his consistent endorsement of political violence, Trump

undertook efforts to undermine the legitimacy of the 2020 presidential election well in

advance of the election, making accusations of widespread corruption, voter fraud, and

election rigging. These efforts intensified when the election results were returned

showing that he had lost the election, despite a complete lack of evidence showing any

such fraud and his knowledge that there was no evidence. As the electoral college votes

were cast, and the certification date drew closer, Trump further intensified his public

efforts at disrupting the certification, even as violence, intimidation, and calls for

political violence escalated. In the wake of this, Trump supported calls for protests in

Washington, D.C., and focused his call on the date of the certification, January 6, 2021.

Trump continued to inflame his supporters with false accusations of historic levels of

election corruption. Leading up to January 6, 2021, federal law enforcement and

security agencies identified significant threats of violence associated with the planned

January 6, 2021 rallies. Despite these warnings, Trump undertook no effort to prepare

law enforcement or discourage violence among the prospective attendees. Importantly,

he did not tell law enforcement he intended to direct the crowd to protest at the Capitol.

291. On the morning of January 6, 2021, Trump focused the attention of his

supporters on Vice President Mike Pence and his role in certifying the electoral college

results, falsely claiming Vice President Pence had the authority to “send back” the

electoral votes for recertification. Trump proceeded to give a speech at the Ellipse,

wherein he again inflamed his supporters by contending that the election was “stolen,”

that the country was in existential danger from endemic corruption, that strength and

action were needed to save the country, and that it was time to do something about it.

He continued to focus the crowd on Vice President Pence and directed the crowd to

march to the Capitol building, claiming that he would be joining them. The crowd

reacted predictably, marched on the Capitol, violently clashed with police officers

attempting to secure the building, and breached the building with the intent to disrupt

the certification.

292. After being informed of the attack, Trump did little. Trump first sent out a

tweet condemning Vice President Pence for refusing to illegally interrupt the electoral

vote certification and continued to promote his false claims that the 2020 presidential

election was fraudulent. He later sent out tweets encouraging his supporters to “remain

peaceful” and “stay peaceful” despite knowing that they were not peaceful. Predictably,

these tweets had no effect. Trump resisted calls from advisors and members of his party

to intercede and took no immediate action to quell the violence. It was not until 4:17

p.m. that Trump released a video that unmistakably called for the mob to disperse while

simultaneously praising their conduct. Trump continued to praise the violent conduct

of the mob after it had dispersed.

293. 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. Trump cultivated a culture that embraced political violence through his

consistent endorsement of the same. He responded to growing threats of violence and

intimidation in the lead-up to the certification by amplifying his false claims of election

fraud. He convened a large crowd on the date of the certification in Washington, D.C.,

focused them on the certification process, told them their country was being stolen from

them, called for strength and action, and directed them to the Capitol where the

certification was about to take place.

294. When the violence began, he took no effective action, disregarded repeated

calls to intervene, and pressured colleagues to delay the certification until roughly three

hours had passed, at which point he called for dispersal, but not without praising the

mob and again endorsing the use of political violence. The evidence shows that Trump

not only knew about the potential for violence, but that he actively promoted it and, on

January 6, 2021, incited it. His inaction during the violence and his later endorsement

of the violence corroborates the evidence that his intent was to incite violence on

January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court

therefore holds that the first Brandenburg factor has been established.

295. Regarding the second Brandenburg factor, the Court finds that the

language Trump used throughout January 6, 2021 was likely to incite imminent

violence. The language Trump employed must be understood within the context of his

promotion and endorsement of political violence as well as within the context of the

circumstances as they existed in the winter of 2020, when calls for violence and threats

relating to the 2020 election were escalating. For years, Trump had embraced the virtue

and necessity of political violence; for months, Trump and others had been falsely

claiming that the 2020 election had been flagrantly rigged, that the country was being

“stolen,” and that something needed to be done.

296. Knowing of the potential for violence, and having actively primed the

anger of his extremist supporters, Trump called for strength and action on January 6,

2021, posturing the rightful certification of President Biden’s electoral victory as “the

most corrupt election in the history, maybe of the world” and as a “matter of national

security,” telling his supporters that they were allowed to go by “very different rules” and

that if they didn’t “fight like hell, [they’re] not going to have a country anymore.” Such

incendiary rhetoric, issued by a speaker who routinely embraced political violence and

had inflamed the anger of his supporters leading up to the certification, was likely to

incite imminent lawlessness and disorder. The Court, therefore, finds that the second

Brandenburg factor has been met.

297. Trump has, throughout this litigation, pointed to instances of Democratic

lawmakers and leaders using similarly strong, martial language, such as calling on

supporters to “fight” and “fight like hell.” The Court acknowledges the prevalence of

martial language in the political arena; indeed, the word “campaign” itself has a military

history. See, e.g., Claiborne Hardware Co., 458 U.S. at 928 (“Strong an effective

extemporaneous rhetoric cannot be nicely channeled into purely dulcet phrases.”). This

argument, however, ignores both the significant history of Trump’s relationship with

political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on,

January 6, 2021. It further disregards the distinct atmosphere of threats and calls for

violence existing around the 2020 election and its legitimacy. When interpreting

Trump’s language, the Court must consider not only the content of his speech, but the

form and context as well. See Id. at 929 (noting that, if there had been “other evidence”

of Evers’ “authorization of wrongful conduct,” the references to “discipline” in his

speeches could be used to corroborate that evidence).

298. 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.

C. DOES SECTION THREE OF THE FOURTEENTH AMENDMENT

APPLY TO PRESIDENT TRUMP?

299. For Section Three of the Fourteenth Amendment to apply to Trump this

Court must find both that the Presidency is an “office . . . under the United States” and

that Trump took an oath as “an officer of the United States” “to support the Constitution

of the United States.” U.S. CONST. amend. XIV, § 3.

300. Professor Magliocca provided historical evidence that the Presidency was

understood as an “office, civil or military, under the United States” such that

disqualified individuals could not assume the Presidency. 11/01/23 Tr. 59:17-62:6. The

most compelling testimony to that effect was an exchange between Senators Morrill and

Johnson during the Congressional Debates over Section Three, where one Senator

explained to the other that the Presidency was covered by “office, civil or military, under

the United States.” Professor Magliocca also testified it would be preposterous that

Section Three would not cover Jefferson Davis—the President of the Confederacy—

should he have wished to run for President of the United States after the civil war. Id.

301. The Court holds there is scant direct evidence regarding whether the

Presidency is one of the positions subject to disqualification. The disqualified offices

enumerated are presented in descending order starting with the highest levels of the

federal government and descending downwards. It starts with “Senator or

Representatives in Congress,” then lists “electors of President and Vice President,” and

then ends with the catchall phrase of “any office, civil or military, under the United

States, or under any State.” U.S. CONST. amend. XIV, § 3.

302. To lump the Presidency in with any other civil or military office is odd

indeed and very troubling to the Court because as Intervenors point out, Section Three

explicitly lists all federal elected positions except the President and Vice President.

Under traditional rules of statutory construction, when a list includes specific positions

but then fails to include others, courts assume the exclusion was intentional. Dep’t of

Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015) (finding that Congress intended to

exclude rules or regulations when it included only the word “law” versus elsewhere

where it used the phrase “laws, rule or regulation”).

303. Finally, the Intervenors point out that an earlier version of the

Amendment read “No person shall be qualified or shall hold the office of President or

vice president of the United States, Senator or Representative in the national

congress….” Kurt Lash, The Meaning and Ambiguity of Section Three of the Fourteenth

Amendment, 10 (Oct. 28, 2023) (unpublished draft) (on file with the Social Science

Research Network). This fact certainly suggests that the drafters intended to omit the

office of the Presidency from the offices to be disqualified.

304. The Court holds that it is unpersuaded that the drafters intended to

include the highest office in the Country in the catchall phrase “office . . . under the

United States.”

305. Next the Court addresses whether Trump “previously [took] an oath, as a

member of Congress, or as an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State.” U.S. CONST. amend. XIV, §

3. Because President Trump was never a congressman, state legislator, or state officer,

Section Three applies only if he was an “officer of the United States.” Id.

306. Professor Magliocca testified that during Reconstruction, the President of

the United States was understood to be an “officer of the United States.” 11/01/2023 Tr.

In response to the argument that it would be preposterous that Section Three of the

Fourteenth Amendment would not prevent Jefferson Davis from being President of the United

States, 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.

51:20-52:3. He points to Attorney General Stanbery’s first opinion that stated that the

phrase “officer of the United States” was used “in its most general sense and without any

qualification” in Section Three. 11/01/23 Tr. 53:12–54:4; The Reconstruction Acts, 12

U.S. Op. Att’y Gen. 141, 158 (1867). The next sentence, however, would cut against

including a President when Stanbery states “I think, as here used, it was intended to

comprehend military as well as civil officers of the United States who had taken the

prescribed oath.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 158. To refer to

the President of the United States as a mere “civil officer” is counterintuitive.

307. The Court holds that the more obvious reading of Attorney General

Stanbery’s opinion is that his reference to the “most general sense and without any

qualification” was to make it clear that, unlike with State officers, the phrase applied to

all lower-level federal officers so long as they took an oath, and did not apply only to the

upper echelon of the military and civil ranks.

308. Stanbery’s second opinion likewise states that “officers of the United

States” applied “without limitation” to any “person who has, at any time prior to the

rebellion held any office, civil or military, under the United States and has taken an

official oath to support the Constitution of the United States.” The Reconstruction Acts,

12 U.S. Op. Att’y Gen. 182, 203(1867); 11/03/23 Tr. 256:22–257:13.

309. In other words, Magliocca testified because the Presidency is an “office,”

the person who holds that office and swears an oath was understood to be an “officer.”

Stanbery’s second opinion later goes on to say that the President is an “executive

officer.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 182, 196 (1867); 11/01/23 Tr.

59:11–16. But to some extent this reference cuts against the President being included

because Section Three explicitly includes “executive . . . officer[s] of any State” but only

includes “officer of the United States”. U.S. CONST. amend. XIV, § 3.

310. Magliocca further argued that contemporary usage supports the view that

the President is an “officer of the United States.” Andrew Johnson repeatedly referred to

himself as such in presidential proclamations, members of Congress both during the

39th Congress that ratified the Fourteenth Amendment and during Johnson’s

impeachment several years later repeatedly referred to the President the same way, and

earlier presidents in the Nineteenth Century were referred to the same way. 11/01/23 Tr.

56:3–59:16, 69:21–71:21.

311. On the other hand, Intervenors argue that five constitutional provisions

show that the President is not an “officer of the United States.”

• The Appointments Clause in Article II, Section 2, Clause 2 distinguishes

between the President and officers of the United States. Specifically, the

Appointments Clause states that the President “shall appoint

Ambassadors, other public Ministers and Consuls, Judges of the supreme

Court, and all other Officers of the United States, whose Appointments are

not herein otherwise provided for, and which shall be established by Law.”

U.S. CONST. art. II, § 2, cl. 2.

• The Impeachment Clause in Article II, Section 4 separates the President

and Vice President from the category of “civil Officers of the United

States:” “The President, Vice President and all civil Officers of the United

States, shall be removed from Office on Impeachment for, and Conviction

of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S.

CONST. art. II, § 4.

• The Commissions Clause in Article II, Section 3 specifies that the

President “shall Commission all the Officers of the United States.” U.S.

CONST. art. II, § 3.

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• In the Oath and Affirmation Clause of Article VI, Clause 3, the President is

explicitly absent from the enumerated list of persons the clause requires to

take an oath to support the Constitution. The list includes “[t]he Senators

and Representatives before mentioned, and the Members of the several

State Legislatures, and all executive and judicial Officers, both of the

United States and of the several States.” US. CONST. art. VI, cl. 3.

• Article VI provides further support for distinguishing the President from

“Officers of the United States” because the oath taken by the President

under Article II, Section 1, Clause 8 is not the same as the oath prescribed

for officers of the United States under Article VI, Clause 3.

312. 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.”

313. Here, after considering the arguments on both sides, the Court is

persuaded that “officers of the United States” did not include the President of the United

States. While the Court agrees that there are persuasive arguments on both sides, the

Court holds that the absence of the President from the list of positions to which the

Amendment applies combined with the fact that Section Three specifies that the

disqualifying oath is one to “support” the Constitution whereas the Presidential oath is

to “preserve, protect and defend” the Constitution,

it appears to the Court that for

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.

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whatever reason the drafters of Section Three did not intend to include a person who

had only taken the Presidential Oath.

314. To be clear, part of the Court’s decision is its reluctance to embrace an

interpretation which would disqualify a presidential candidate without a clear,

unmistakable indication that such is the intent of Section Three. As Attorney General

Stanbery again noted when construing the Reconstruction Acts, “those who are

expressly brought within its operation cannot be saved from its operation. Where, from

the generality of terms of description, or for any other reason, a reasonable doubt arises,

that doubt is to be resolved against the operation of the law and in favor of the voter.”

The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added).

Here, the record demonstrates an appreciable amount of tension between the competing

interpretations, and a lack of definitive guidance in the text or historical sources.

315. As a result, the Court holds that Section Three of the Fourteenth

Amendment does not apply to Trump.

Whether this omission was intentional, or an oversight is not for this Court to decide. It may

very well have been an oversight because to the Court’s knowledge Trump is the first President

of the United States who had not previously taken an oath of office.

The Court is mindful that Stanbery was considering disenfranchisement, not qualification for

office, and that he was interpreting a statute he considered “penal and punitive” in nature; the

Court nevertheless finds that the principle articulated, that the law ought err on the side of

democratic norms except where a contrary indication is clear, is appropriate and applicable to

the circumstances.

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VI. CONCLUSION

Pursuant to the above, 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,

2024.

DATED: November 17, 2023.

BY THE COURT:

Sarah B. Wallace

District Court Judge