Is Donald Trump actually an insurrectionist? Yes and no.

On Jan. 5, the Supreme Court agreed to weigh in on Colorado’s ruling disqualifying Donald Trump from its primary ballot. Both Colorado and Maine have taken this unprecedented step because of his leadership in the attack on the Capitol on Jan. 6, 2021.

Two important questions to consider now are, is Trump an insurrectionist and should he be excluded from primary ballots?

The justification that has been offered for the removal comes from a disqualification clause, also known as Section 3, in the 14th Amendment barring individuals from holding public office who have participated in or incited an insurrection against the U.S. government after having taken an oath to support the Constitution. The amendment was ratified after the Civil War and Section 3 specifically was meant to prevent leaders of the Confederacy from holding public office.

Trump himself has claimed that his speech inciting a mob to storm the Capitol is protected under the 1st Amendment. On countless occasions he lied about the election being stolen, despite being informed by even his closest advisors that this was false, and asked his supporters to travel to D.C. to march on the Capitol. During his Jan. 6 rally, Trump urged his supporters, “if you don’t fight like hell, you’re not going to have a country anymore.”

Lying about elections being stolen and urging others to overthrow the government in abstract terms is and should be protected under the 1st Amendment. Legally speaking, it would be an uphill battle to prosecute Trump on the grounds that he lied about the election or that he urged his supporters to “fight like hell,” which is why special prosecutor Jack Smith did not charge Trump with seditious conspiracy in his indictment.

So it looks like it would be difficult to legally argue that Trump engaged in insurrection.

Trump’s lawyers argue that the disqualification clause does