But Sean Grimsley, an attorney for the plaintiffs, called the insurrection clause “one of the few self-defense mechanisms (the Constitution) has,” and said its enforcement was essential to upholding the rule of law.
“We are here because for the first time in our nation’s history, the president of the United States engaged in insurrection against the Constitution,” Grimsley said. “He spearheaded a multifaceted scheme to stay in power by any means necessary, the scheme culminating in a violent attack on the Capitol on Jan. 6 during the constitutionally-mandated counting of electoral votes.”
“And now he wants to be president again. The Constitution does not allow that,” Grimsley added.
Trump was indicted in August by federal prosecutors who allege that his “pervasive and destabilizing lies” about the 2020 election “targeted a bedrock function of the United States federal government.” Since announcing last year he would seek the presidency again in 2024, he has maintained a substantial polling lead over his rivals for the GOP nomination.
Judge Sarah B. Wallace is expected to issue a ruling on the case by the end of this week. Similar challenges to Trump’s ballot eligibility have stalled in states including Minnesota and Michigan, but Colorado has been widely viewed as a more favorable venue for the plaintiffs due to the state’s election laws and existing court precedent. Regardless of the outcome, the Colorado case and other 14th Amendment challenges are likely to be appealed to higher courts, potentially as far as the U.S. Supreme Court, where conservatives hold a 6-3 majority.
Dispute over Jan. 6 report
The plaintiffs’ case, as presented over the course of a five-day evidentiary hearing earlier this month and in Wednesday’s closing arguments, resembled the proceedings of the House of Representatives’ select Jan. 6 committee in both style and substance, complete with dramatic video exhibits of Trump’s election-denying rhetoric and the mob’s assault on the Capitol.
Much of the evidence submitted by the plaintiffs consisted of that committee’s findings — over frequent objections by Trump’s attorneys, who renewed their attack on the credibility of the committee and its final report on Wednesday.
“What this case comes down to is whether or not the court is going to follow the Jan. 6 report,” said Scott Gessler, Trump’s lead counsel in the case and a former Colorado secretary of state, describing the committee as “heavily biased” and the footage played by the plaintiffs as “curated and highly edited videos.”
“The petitioners’ evidence relies on the Jan. 6 report,” Gessler said. “It relies on the inferences of the Jan. 6 report. It relies on the conclusions and the characterizations of the Jan. 6 report.”
Republican opposition in the U.S. Senate prevented the formation of a broader joint commission to investigate the Jan. 6 attack, and GOP House leadership boycotted the select committee after Democrats refused to seat selected members who had voted against certifying the 2020 election results. The House’s nine-member committee ultimately included two Republicans, former Reps. Adam Kinzinger of Illinois and Liz Cheney of Wyoming, who were appointed by then-Speaker Nancy Pelosi, a Democrat.
Grimsley noted that despite the repeated efforts by Trump’s attorneys to characterize the committee as politically motivated, few of its factual findings were disputed.
“They haven’t come in here and really challenged the veracity of many of those findings. They just complain about the process,” Grimsley said. “President Trump could have come in here and testified. There are other people who could have come in here and testified. But they don’t really question any of the findings that we’re relying on.”
Griswold attended court proceedings on Wednesday for the first time during the trial. A Democrat, she is an outspoken Trump critic who has said the former president did “incite an insurrection and attack our democracy.” But she is named as a defendant in the lawsuit because, plaintiffs wrote, she “has not committed to excluding Trump from the presidential ballot.”
“The Secretary of State has not taken a formal legal position on whether Trump is ineligible to appear on Colorado’s presidential primary ballot,” state attorneys on behalf of Griswold wrote in a filing last week. “That question is fairly presented to the Court here, and the Secretary welcomes the Court’s direction.”
A four-point case
In an hourlong closing argument, Grimsley reiterated the four parts of the plaintiffs’ case: Trump took an oath to support the Constitution; the Jan. 6 attack was an insurrection; Trump engaged in that insurrection; and Colorado election officials can and must bar ineligible candidates from the ballot.
Trump’s attorneys have done little to dispute the first point, though they have cited a theory put forward by several conservative legal scholars who claim that Section 3’s reference to individuals who have “taken an oath … as an officer of the United States” does not include the presidency.
On the question of whether Jan. 6 was an insurrection, Gessler said the plaintiffs had “picked something out of the hat for a definition of insurrection,” and argued that the Jan. 6 attack “may constitute a riot, but it does not constitute an insurrection.”
The plaintiffs relied on expert testimony from Gerard Magliocca, a scholar of 19th-century constitutional law who said that the insurrection clause had been invoked to bar from office individuals whose insurrectionist activity had been limited to writing letters to the editor in support of the Confederacy. Magliocca pointed to legal opinions written by Attorney General Henry Stanbery at the time of the 14th Amendment’s passage. Stanbery wrote that “when a person has, by speech or by writing, incited others to engage in rebellion, be must come under the disqualification.”
Trump’s attorneys argued that the plaintiffs’ evidence showed neither that “incitement” qualifies as “engaging in” insurrection — “‘engage’ and ‘incite’ are two fundamentally different activities,” Gessler said — nor that Trump’s words amounted to incitement. In his closing argument, Gessler repeatedly cited the so-called Brandenburg test, named for the 1969 Supreme Court case Brandenburg v. Ohio, distinguishing incitement to violence from speech protected by the First Amendment.
“We’re not saying that the First Amendment, pardon my pun, trumps the 14th Amendment, or vice versa,” Gessler said. “What we are saying (is) the court is required to harmonize the two — when possible, to find a construction that harmonizes the two. And the Brandenburg standards are what harmonizes it.”
Finally, Gessler rejected claims that the secretary of state, as the state’s top elections official, has the power to exclude from the ballot a candidate who is ineligible under the 14th Amendment.
While serving as Colorado secretary of state in 2012, Gessler himself blocked the presidential candidacy of Abdul Hassan, a naturalized U.S. citizen born in Guyana, who sued over the rejection. The case, Hassan v. Colorado, ultimately produced a ruling by the Denver-based Court of Appeals for the 10th Circuit, in which future Supreme Court Justice Neil Gorsuch affirmed the state’s “legitimate interest in protecting the integrity and practical functioning of the political process” by barring ineligible candidates from the ballot.
But Gessler sought to distinguish between constitutional “qualifications” like age requirements and the natural-born citizen requirement and the “disqualification” prescribed by the 14th Amendment.
“The secretary has never enforced anything like this,” Gessler said. “The secretary has no administrative procedures in place to make these determinations.”
Jan. 5 deadline
But attorneys for Griswold have rejected that argument. While the secretary of state’s office declined throughout the trial to take a position on Trump’s eligibility under the 14th Amendment, state attorneys on Wednesday defended Griswold’s authority and duty to bar Trump from the ballot if a court rules that he is disqualified.
“The purpose of the ballot is to elect candidates to office,” Mike Kotlarczyk, an assistant attorney general representing Griswold, said in a brief closing argument. “Having candidates who are ineligible to serve in the office they seek frustrates that purpose.”
Provisions in Colorado’s Election Code relating to candidate eligibility and ballot access, along with Gorsuch’s ruling in the Hassan case, are among the reasons why the Centennial State was identified as a “good venue” for a 14th Amendment challenge by Citizens for Ethics and Responsibility in Washington, the nonprofit that brought the case on behalf of the six voters.
Earlier this week in Michigan, a judge ruled that under state law, the secretary of state has “neither the affirmative duty nor the authority” to determine whether a presidential candidate is ineligible under the insurrection clause. The Minnesota Supreme Court also blocked a similar challenge, allowing Trump to appear on the state’s primary ballot, though it left open the question of whether he could be barred from the ballot in the general election. Both lawsuits were filed by a different advocacy group.
The lawsuit in Minnesota was a “trainwreck” while the Colorado case was “obviously much more developed,” a Minnesota lawyer specializing in constitutional law told Stateline this week.
The Colorado case was heard in Denver District Court on an accelerated timeline, and an appeal to the Colorado Supreme Court could come quickly ahead of a looming deadline to finalize the state’s 2024 presidential primary ballot.
“The election code requires the secretary to certify the primary presidential candidates on Jan. 5, 2024,” Kotlarczyk said. “And like everyone else in this courtroom, we fully expect that some appellate process is going to play forward from whatever the court decides.”
Gessler said the Michigan and Minnesota cases were part of an “emerging consensus” and asked Wallace to follow suit.
But Grimsley, while acknowledging that the plaintiffs are asking the court for an “unprecedented” ruling, argued that such a ruling is warranted by the unprecedented threat that Trump poses to the democratic process.
“Never before in the history of the United States has somebody who engaged in insurrection against the Constitution run for president after having taken an oath to protect that document,” Grimsley said. “Never before in the history of the United States has a sitting president sicced a mob on the Capitol while they were counting electoral votes. Section 3 of the 14th Amendment was put in place precisely for this reason.”
Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.
