As the Colorado Supreme Court wrote, January 6 meets the bar for insurrection āunder any viable definitionā of the term. The legal scholar Mark Graber, who has closely studied the Fourteenth Amendmentās history, argues that āinsurrectionā should be understood broadlyāan act of organized resistance to government authority motivated by a āpublic purpose.ā That certainly describes the Capitol riot, in which a violent mob attacked law enforcement and threatened members of Congress and the vice president in order to block the rightful counting of the electoral vote and illegally secure the victory of the losing candidate. The historical record also suggests that the amendmentās requirement that a prospective officeholder must have āengaged in insurrectionā should also be understood broadlyāmeaning that Trumpās speech on the Ellipse that morning and his encouragement of the rioters while they smashed their way through the Capitol more than fit the bill.
Article 3 of the 14th is arguably self-executing meaning that it doesnāt require a trial, but only a simple finding of fact. This is because it was intended to bar all former Confederate officers from holding federal office, and it would have been impossible to hold trials and get convictions for all of them.
Thatās the historical reading in any case, and it puts the SCOTUSās originalists --Alito, Thomas, Gorsuch-- in quite the bind since theyāre either going to have to find a way to argue that it wasnāt intended to be self-executing, which is pretty absurd on its face, or that it doesnāt apply to the presidency, which is also absurd.
That said, they almost certainly will find a way out of it for Trump, but Iām no expert and donāt have an educated opinion on how theyāll do it.