The Trump Colorado Case: Right Analysis, Wrong Outcome

21 December 2023
Lanny J. Davis

I read the dissent of the Colorado Supreme Court’s 4-3 decision, written by the court’s chief justice, Brian Boatright. I agree with Justice Boatright’s opinion.

I agree with the detailed analysis of the majority opinion that there is substantial evidence in the public record that Donald Trump violated Section 3 of the 14th Amendment – i.e., that he participated in an insurrection criminal conspiracy to thwart the lawful election of Joe Biden.

But it is not good for the country, and not good law, for Trump to be barred from running in 2024 without due process of law, which means a trial, the right to cross-examination, and a verdict of guilt by a jury “beyond a reasonable doubt.”

The irony of course is that the ultimate abuser and denier of our U.S. Constitution, the rule of law, and due process is Donald J. Trump. Remember his leading the 2016 cheers to “Lock her up!” This was a reference to Hillary Clinton’s practice of storing her State Department emails on a private server. He did not insist that Hillary Clinton be provided due process before leading that cheer. As we now know, the inspector general of the State Department did not find she had violated any criminal laws and FBI Director James Comey – no Hillary Clinton fan – agreed that not one of the 33,000 emails she transferred to her private server contained recognizable classified markings.

But that example cuts both ways. Yes, it is obviously hypocritical for Trump and his supporters to scream about due process in the Colorado case. But Mrs. Clinton’s example also shows why due process is so important. She was never convicted of anything. And, so far at least, neither has Trump.

Winning a criminal insurrection conspiracy case won’t be a cakewalk for Special Counsel Jack Smith. I say this because on Dec. 14 I participated as playing Smith’s role as “prosecutor” in a mock trial sponsored by the nationally respected nonprofit organization Open to Debate. Our mock argument was live-streamed last week, but it can be heard again on Jan. 5, 2024, the day before the anniversary of the Jan. 6 insurrection effort, on an NPR local affiliate; seen and heard on YouTube here; on; or on available podcast channels.

During this mock trial, the Trump side was represented by Sara Azari, a Los Angeles-based defense lawyer. Sara argued not only the absence of a smoking gun admission or written evidence by Trump that he knew he had lost the election; she also effectively argued that Trump’s claims, though false, are protected as political speech under the First Amendment.

My response was that the First Amendment does not protect lies that are part of a criminal conspiracy. I pointed out that there will be testimony from several people that Trump admitted he had lost but lied about it. However, I also pointed out that a jury can conclude beyond a reasonable doubt that he knew that the voter fraud did not cost him the election because the highest officials of his government, whom he appointed, all told him he had lost, including the attorney general, senior Justice Department officials, the director of national intelligence, and every single state official in the key battleground states whom he called. Georgia’s secretary of state of told him he had lost after three separate recounts. Still Trump asked him to “find” one vote more than the total Biden was found to have won Georgia – proving he knew he was asking the secretary of state to lie.

I also pointed out that 61 out of 61 state court judges rejected his claim that he had lost these key battleground states because of voter fraud. (Once in Pennsylvania, a court found some voter fraud, but that judge also ruled it wasn’t significant enough to change the outcome in that state).

In any event, there will and must be a test of Donald Trump’s culpability, but that must come in a trial, with due process by a finder of fact that reaches a verdict beyond a reasonable doubt. America cannot accept a verdict barring Trump from running for office based on a court hearing 1,500 miles from Washington, D.C., without a trial, on a civil court standard of “preponderance of the evidence” – meaning anything above 50%.

Those of us who oppose Trump can beat him at the ballot box, especially if and when he is convicted of felonies in one or more of the criminal trials he faces in federal and state courts.  Colorado’s chief justice was right in his dissent when he concluded Trump should not be barred by a state court “in the absence of an insurrection-related conviction” – the latter word meaning after a trial and a jury of his peers finds the defendant guilty “beyond a reasonable doubt.”

Lanny Davis is the founder of the Washington, D.C., law firm, Lanny J. Davis & Associates. He is one of the first to use the concept of legal crisis management to solve client problems – operating at the intersection of law, media, and politics. He is a former special counsel to President Bill Clinton in 1996-98 and served on a privacy and civil liberties panel appointed by President George W. Bush. He has been writing his “Purple Nation” column for more than 13 years.