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President Trump led an insurrection after he lost the 2020 election and should be disqualified from running again, a group of his opponents are arguing this week in a critical test case in Colorado.
The trial, which kicked off Monday in Denver, tests the novel theory that Mr. Trump should be blocked from the 2024 primary and general election ballots in Colorado because of his actions after the 2020 presidential election.
The Denver trial is the first in a series of cases nationwide in which Trump opponents will try to keep the Republican Party front-runner off state ballots. They cite Section 3 of the 14th Amendment, which disqualifies anyone who has rebelled against the U.S. government through an insurrection or aided America’s enemies.
A Minnesota court is scheduled to hear a similar case beginning Thursday, and lawsuits have been filed in New Hampshire and the swing state of Michigan, where a judge this month moved to fast-track the case.
The post-Civil War clause in the 14th Amendment bars elected officials who have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Mr. Trump is facing dozens of federal and state criminal charges related to his actions after the 2020 election, including racketeering, obstructing an official proceeding and conspiracy to defraud the United States. None of the charges accuses him of inciting an insurrection.
Mike Davis, a former counsel to the Senate Judiciary Committee and president of the Article III Project, which advocates for constitutionalist judges and the rule of law, called the case “a legal Hail Mary” aimed at stopping Mr. Trump, who ties or leads President Biden in general election polls.
Constitutional law experts have widely panned the untested legal theory that Mr. Trump is disqualified from running under the 14th Amendment.
Two prominent conservative law professors, Michael Stokes and William Baude, gave the theory traction with a 126-page paper in August that declared Mr. Trump “constitutionally disqualified from again being president (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the Jan. 6 attack.”
In Colorado, the case was brought by six plaintiffs identified as Republican and independent primary voters and led by the left-wing activist group Citizens for Responsibility and Ethics in Washington. They said Mr. Trump led an insurrection on Jan. 6, 2021, when a mob of angry protesters stormed the U.S. Capitol while lawmakers were certifying Mr. Biden as the winner of the 2020 election.
“Trump incited a violent mob to attack our Capitol, to stop the peaceful transfer of power under our Constitution,” Eric Olson, an attorney for Citizens for Responsibility and Ethics in Washington, argued in an opening statement peppered with footage of the riot. “We are here because Trump claims, after all that, he has the right to be president again. But our Constitution, or shared charter for our nation, says he cannot do so.”
Witnesses Monday included Metropolitan Police Department Officer Daniel Hodges, who fought the mob at the Capitol and said he nearly lost an eye during the struggle.
Rep. Eric Swalwell, a California Democrat and staunch Trump opponent who helped prosecute Mr. Trump’s second impeachment trial, testified about his experience in the Capitol that day. He described the riot as “an attempted coup.”
Appearing via video, Mr. Swalwell recounted Mr. Trump’s tweets during the riot attacking Vice President Mike Pence for refusing to block Mr. Biden’s certification. He described hearing a gunshot while lawmakers were rushed out of the House chamber just steps ahead of rioters who forced their way into the building.
Attorneys for Mr. Trump sought to discredit the argument that the president incited the riot with his tweets or the speech he delivered to his supporters that day near the White House, about 2 miles from the Capitol.
The lawyers produced tweets from Mr. Swalwell, dating to 2022, in which he used incendiary language to call on his followers to “fight” for Democratic causes.
He asked Mr. Swalwell to read tweets from Mr. Trump calling on protesters to act peacefully and to support the police.
Ahead of the trial, Trump backers called for District Judge Sarah Wallace to recuse herself.
Ms. Wallace, appointed in August 2022 by Colorado Gov. Jared Polis, is a Democratic donor who gave $100 to the Colorado Turnout Project, a political action committee dedicated to defeating “insurrectionist” lawmakers who they believe played a role in the attack on the Capitol.
Ms. Wallace did not step aside and rejected several motions by Mr. Trump’s legal team to throw out the case.
Mr. Trump’s legal team, led by Scott Gessler, argued that the lawsuit was undemocratic and would deprive voters of their right to pick a presidential candidate.
“It’s the people who get to decide, and this lawsuit seeks to cancel that principle,” Mr. Gessler said. “At its basic level, this is election interference.”
Legal experts argue that the clause in the Constitution cited by Trump opponents is not specific enough to exclude Mr. Trump from the 2024 ballot.
Steven Calabresi, a professor at Northwestern School of Law and self-declared “Never Trumper,” said he once believed Mr. Trump should be disqualified from the 2024 ballot but changed his mind. He called it “a very muddled area of constitutional law.”
Removing Mr. Trump from the ballot, he wrote on the Volokh Conspiracy legal blog, would “set a bad precedent for American politics.”
Mr. Calabresi, who called Mr. Trump “loathsome,” said Mr. Trump was not acting as an “officer” and that the term as written in the Constitution does not apply to the president of the United States.
Some legal experts say Mr. Trump’s opponents have no chance of prevailing even if they win at the state level. The cases eventually will end up before the Supreme Court, where justices are likely to reject the argument that the 14th Amendment can disqualify Mr. Trump, they argue.
“I actually have no doubt whatsoever that if this case gets to the Supreme Court, it’s almost 100% certain the Supreme Court will rule in Donald Trump’s favor,” said Hans von Spakovsky, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
• Susan Ferrechio can be reached at sferrechio@washingtontimes.com.
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