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Whether former President Trump instigated the Jan. 6, 2021, Capitol attack is at the core of a Colorado lawsuit seeking to disqualify him from the state’s 2024 ballot under the 14th Amendment’s “insurrection clause.”
Opening remarks in the trial began Monday, where a lawyer for the plaintiffs – Citizens for Responsibility and Ethics in Washington (CREW) and six Colorado voters – argued that Trump “incited a violent mob” to attack the Capitol on Jan. 6 “to stop the peaceful transfer of power under our Constitution.” Those actions, the lawyer said, deem Trump “ineligible” to be president again.
“It was Trump’s dereliction of duty – in violation of his oath to preserve, protect and defend the Constitution – that caused the constitutional process to stop,” attorney Eric Olson said.
But the former president’s legal team argued that the “anti-democratic” lawsuit is tantamount to “election interference” in the 2024 presidential race, where Trump is the undisputed frontrunner in the GOP primary.
“(This lawsuit) looks to extinguish the opportunity…for millions of Coloradans – Colorado Republicans and unaffiliated voters – to be able to choose and vote for the presidential candidate they want,” Trump attorney Scott Gessler said. “In fact, the leading Republican presidential candidate, and by many measures, the candidate most likely to win the presidency.”
Here are five things to know about the opening day of the trial.
Definition of ‘Insurrection’ at core of outcome
The lawsuit suggests that Section 3 of the 14th Amendment – which says that anyone who took an oath to support the Constitution but then “engaged in insurrection or rebellion” against it cannot hold office – disqualifies Trump from becoming president again.
The Civil War-era clause, which was ratified in 1868, was intended to prevent Confederate officials from holding elected office. The legal argument has rarely been used since the Reconstruction era following the war and has never been used to disqualify a presidential candidate.
A New Mexico official was ordered removed from office last year over his participation in the Capitol attack, bolstering proponents’ argument that the same rules should apply to Trump. However, the argument was unsuccessfully used against Rep. Marjorie Taylor Greene (R-Ga.) last year.
Olson, the plaintiffs’ lawyer, argued that the Colorado case has four basic components: Trump took an oath as an officer of the U.S. The Capitol attack was an insurrection. Trump engaged in that insurrection. And Colorado’s secretary of state can be ordered by the court to keep him off the state’s ballot because of it.
But Trump’s counsel claimed that the plaintiff’s case is based solely on the report produced by the House committee that investigated the riot, which they described as “poison.”
“They’re asking for the first time that the January 6 report be treated as evidence in a court of law – that politicized hearing; that’s what they’re asking, is that this court rely on that as evidence,” Gessler said. “And frankly, they’re asking this court to be the first in the country ever to embrace a number of legal theories that have never been accepted by a state court.”
Congressman takes the stand
Rep. Eric Swalwell (D-Calif.) made the rare move of taking the witness stand as a sitting lawmaker. He testified to his experience at the Capitol on Jan. 6, recalling the harrowing timeline of the day that ended in lawmakers evacuating the House and Senate chambers.
Martha Tierney, an attorney for the plaintiffs in the case, asked Swalwell whether he was monitoring Trump’s tweets as the day evolved. He said he was.
“We connected the president’s tweets to our own safety in the chamber and also the integrity of the proceedings taking place,” Swalwell said.
During Swalwell’s cross-examination, an attorney for Trump questioned Swalwell over a personal injury lawsuit he filed against Trump, arguing that the California lawmaker could benefit by an outcome against the former president in this case. Swalwell demurred in response.
Trump’s attorney also turned Swalwell’s own tweets against him, suggesting his own fiery language was not intended to actually inspire violence – and neither was Trump’s. In a May 2022 tweet, Swalwell said “we have to fight like our lives depend on it,” referring to abortion rights.
“You were not advocating violence?”
“I was not,” Swalwell said.
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Trial at judge’s sole discretion
Colorado Judge Sarah Wallace is overseeing the bench trial, meaning she will be the sole decider of the case’s outcome, not a jury. The trial is expected to address nine topics, Wallace said in court filings, including the meaning of “engaged” and “insurrection” in the 14th Amendment and whether Trump’s conduct leading up to the riot qualifies.
Wallace said the trial, which is expected to last about a week, will address nine topics including the meaning of “engaged” and “insurrection” as used in the 14th Amendment and whether Trump’s conduct qualifies.
At the start of the trial Monday morning, Wallace denied Trump’s motion to recuse herself from the case, which cited a donation the judge made to the Colorado Turnout Project, a PAC focused on electing Democrats across the state.
“I apparently made a $100 contribution to the Colorado Turnout Project. That being said, prior to yesterday, I was not cognizant of this organization or its mission,” Wallace said Monday before denying the motion.
“To this day, I have formed no opinion whether the events on Jan. 6 constituted an insurrection, or whether intervener Trump engaged in an insurrection,” the judge said.
Aaron Harison, a spokesperson for Trump’s 2024 campaign, called Wallace’s decision to continue presiding over the case “just the latest example of the Biden Democrats’ abuse of the courts to interfere with the presidential campaign and damage the leading Trump campaign.”
DC law enforcement, extremism experts testify
D.C. Metropolitan Police officer Daniel Hodges testified as the plaintiffs’ first witness to his experience defending the Capitol from the mob on Jan. 6, where he described being “completely outnumbered” by rioters toting flags referencing “war and revolution” and telling police they were “on the wrong side of history.” He called the riot a “terrorist attack” on the U.S., an “assault on democracy” and an “attempt to prevent the peaceful transfer of power.”
Nikhel Sus, senior counsel at CREW, questioned Hodges over the crowd’s devotion to Trump.
“What, if anything, did you hear the mob say about President Trump?” Sus asked.
“‘Fight for Trump,’” Hodges recalled. “It was a chant.”
During Hodges’s cross-examination, Trump’s legal team argued that the officer could not have known which rioters had directly been influenced by Trump’s tweets or speech earlier that day.
Another member of law enforcement, Capitol Police Officer Winston Pingeon, testified that he believed his life was in “imminent danger” that day. Experts in political extremism are expected to testify later this week.
Similar cases await in other states
Trump faces similar lawsuits in Michigan and Minnesota, but the Colorado case is the first to head to trial.
The petition filed with the Minnesota Supreme Court similarly suggests that Trump’s role in the Capitol attack disqualifies him from public office. Among the petitioners is former Minnesota Secretary of State Joan Growe (D). Oral arguments in that case are scheduled for Thursday.
A Michigan lawsuit makes the same argument. Michigan is a particularly significant location for a challenge because it is both a swing state and its Democratic Secretary of State, Jocelyn Benson, wrote in The Washington Post earlier this month that she and other top election officers don’t have the ability to bar Trump under the clause.
Both those cases were filed by the liberal group Free Speech For People.
Trump’s legal team questioned the validity of all such challenges Monday, calling the Colorado case “novel” and “unique.”
“There’s a reason cases like this have either never been brought or quickly rejected,” Gessler said Monday.
It’s very likely that at least one of the challenges will eventually land in the U.S. Supreme Court, which has never ruled on the 14th Amendment’s “insurrection clause.”
