Trump engaged in insurrection but should stay on Illinois ballot, ex-judge tells state election board

By Marshall Cohen, CNN

(CNN) — Former President Donald Trump engaged in the January 6, 2021, insurrection at the US Capitol but should stay on the ballot in Illinois, a retired judge told the state election board, which is set to vote Tuesday on his recommendation.

Retired state judge Clark Erickson — a Republican — issued the recommendation after presiding Friday over an evidentiary hearing at which lawyers from both sides clashed over whether Trump is disqualified from holding office under the 14th Amendment’s “insurrectionist ban.”

In his written recommendation to the Illinois State Board of Elections, Erickson concluded that the board doesn’t have the authority to vet candidates based on federal constitutional considerations. Therefore, he recommended that the board dismiss the case against Trump.

However, he also said that if the panel believes it does have the statutory authority to review Trump’s eligibility under the 14th Amendment, then they should remove Trump from the ballot because he “engaged in insurrection” in connection with the January 6 attack.

The Illinois State Board of Elections, which will vote on whether to accept Erickson’s recommendation, is a bipartisan panel with four Democrats and four Republicans. Their decision can be appealed in Illinois state courts — and Erickson concluded that some of these key questions “belong in the courts,” instead of the election board.

Regarding the events of January 6, Erickson concluded that the former president led “an elaborate plan” to disrupt the peaceful transfer of power and later tried to give himself cover by halfheartedly calling for peace.

“Even though the Candidate may not have intended for violence to break out on January 6, 2021, he does not dispute that he received reports that violence was a likely possibility on January 6, 2021. Candidate does not dispute that he knew violence was occurring at the capitol,” Erickson wrote in his recommendation.

“(Trump) understood the context of the events of January 6, 2021 because he created the climate,” Erickson wrote. “At the same time he engaged in an elaborate plan to provide lists of fraudulent electors to Vice President Pence for the express purpose of disrupting the peaceful transfer of power following an election.”

Erickson assessed Trump’s public comments during the attack, including tweets that told his supporters to stay peaceful without directing them to leave the US Capitol building that they were ransacking at the time.

“These calls to peace via social media, coming after an inflammatory tweet, are the product of trying to give himself plausible deniability. Perhaps he realized just how far he had gone, and that the effort to steal the election had failed because Vice President Pence had refused to accept the bag of fraudulent electors,” Erickson wrote.

The retired judge also slammed Trump for lashing out at Pence for not overturning the 2020 election while presiding over the joint session of Congress to certify the results. This “inexplicable” tweet was compelling evidence, Erickson concluded, that Trump engaged in and supported the insurrection.

“This tweet could not possibly have had any other intended purpose besides to fan the flames,” Erickson wrote.

Several Illinois voters filed the challenge against Trump, arguing that the state should join Colorado and Maine in removing him from their 2024 presidential ballots based on his role in the January 6 insurrection. The decisions in those other states were paused pending the outcome of Trump’s appeal of the Colorado case to the US Supreme Court.

Similar lawsuits have been dismissed on procedural grounds in Michigan, Minnesota and other states.

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