Former President Donald Trump led an insurrection after he lost the 2020 election and should be disqualified from running for president again, a group of his opponents are arguing this week in a key 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 following the 2020 presidential election.
The Denver trial is the first in a series of cases nationwide in which Trump opponents will try to keep Mr. Trump, the likely GOP nominee, off state ballots citing 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 as well as the swing state of Michigan, where a judge this month moved to fast-track the case.
They want to boot the GOP frontrunner from the 2024 ballot based on a post-Civil War clause in the 14th Amendment that bars an elected lawmaker from future office if they 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 following the 2020 election, including racketeering, obstructing an official proceeding and conspiracy to defraud the United States, but 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 Mr. Biden in general election polls.
The untested legal theory that Mr. Trump is disqualified from running under the 14th Amendment has been widely panned by constitutional law experts.
But two prominent conservative law professors, Michael Stokes and William Baude, gave the theory new traction with a 126-page paper in August that declared Mr. Trump “is 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 made the case that Mr. Trump led an insurrection on Jan. 6 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 CREW, argued in an opening statement peppered with footage of the violent 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 on Jan. 6 and said he nearly lost an eye during the struggle.
Rep. Eric Swalwell, a California Democrat and staunch Trump foe who helped prosecute Mr. Trump’s second impeachment trial, also testified about his experience in the Capitol that day, which he described 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 also described hearing a gunshot while lawmakers were rushed out of the House chamber just steps ahead of the rioting mob that had forced their way into the building.
Lawyers for Mr. Trump sought to discredit the argument that the former 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 old tweets from Mr. Swalwell, dating to 2022, in which he also used incendiary language, calling on his followers to “fight” for Democratic causes.
He also asked Mr. Swalwell to read Jan. 6 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 from the matter.
Ms. Wallace, appointed in August 2022 by Democratic 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 Jan. 6 attack on the Capitol.
Ms. Wallace did not step aside from the case and rejected several motions by Mr. Trump’s legal team to throw out the case.
Trump’s legal team, led by Scott Gessler, argued 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 argued. “At its basic level, this is election interference.”
Legal experts argue the clause in the Constitution cited by Trump foes 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 has changed his mind, calling 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 the former president was not acting as an “officer” on Jan. 6 and that the term as written in the Constitution does not apply to the president of the United States.
Some legal experts believe 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.