A weeklong hearing in Denver could determine whether the former president’s actions surrounding the attack on the US Capitol on 6 January, 2021 and his attempts to overturn the results of the 2020 presidential election violate the 14th Amendment and disqualify him from running again in the state.
The 14 Amendment, adopted in the aftermath of the US Civil War, prohibits anyone who has sworn an oath to uphold the constitution — including elected officials — and who “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” from holding office in the future.
A lawsuit filed by a group of Republican voters and a government watchdog group argues that Mr Trump has “failed” that test and rendered him “constitutionally ineligible to appear on any Colorado ballot as a candidate for federal or state office”.
That complaint outlines the now-familiar contours of Mr Trump’s actions leading up to and surrounding January 6: spurious challenges to election results that he lost, the boiling rage among his supporters fuelled by a baseless narrative he continues to promote, his appeals to violence, the mob’s assault, and his apparent refusal to stop them.
On 2 November, oral arguments are scheduled before the Minnesota Supreme Court in a similar case to remove Mr Trump from that state’s ballots.
The 14th Amendment’s insurrection clause was initially included to keep Confederates from entering a government that they fought a war against, and it was largely used for only a brief period following its ratification and the enactment of the Amnesty Act in 1872, according to a report from the Congressional Research Service.
The last federal use of the clause was in 1919, when Congress blocked a socialist representative after he was convicted of espionage, a charge that was later tossed out.
But it’s a case that’s not entirely without recent precedent. Last year, a judge ordered that Couy Griffin, a county commissioner in New Mexico who was convicted for his actions on January 6, must be removed from office under the 14th Amendment. If Griffin’s actions mean he is prohibited from holding elected office, “then surely Trump’s does as well,” according to the lawsuit.
“We aren’t bringing this case to make a point, we’re bringing it because it is necessary to defend our republic both today and in the future,” according to a statement from Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, which launched the lawsuit in Colorado.
“While it is unprecedented to bring this type of case against a former president, January 6 was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build protections in case of,” he added. “You don’t break the glass unless there’s an emergency.”
Attorneys arguing on behalf of the plaintiffs intend to introduce evidence and testimony from witnesses who can speak to the former president’s inflammatory rhetoric and actions, including testimony from national security analysts, historians, statements from members of Congress, and law enforcement officers’ body-worn camera footage and their first-hand accounts.
“President Trump was the mob’s leader, and the mob was his weapon,” according to the lawsuit.
“The mob traveled from throughout the country to Washington because the President summoned them there. He instructed the mob to march on the Capitol and they complied,” the lawsuit states. “Many in the mob left the Capitol grounds only when, after hours of violence against police officers and interference with Congress’s constitutionally-mandated duties, Trump belatedly told them to leave. Through their flags, banners, clothing, and chants, the mob made clear they were there for Trump.”
Mr Trump – who is criminally charged at the federal level and in the state of Georgia for his allegedly unlawful conspiracy to overthrow election results – is not expected to attend the hearings in Denver. The former president and his three adult children – Donald Trump Jr, Eric Trump and Ivanka Trump – are also scheduled to testify this week in a New York trial stemming from a separate lawsuit targeting his allegedly fraudulent business practises.
Attorneys for Mr Trump have repeatedly tried to get the Colorado case dismissed. Shortly after the lawsuit was filed, the former president labelled it another “trick” from his political opponents joining what he tells his supporters is a Democratic conspiracy against him to “steal” the upcoming election.
In a blitz of fundraising emails from his campaign in the days before the trial, Mr Trump called the challenge “an all-out assault on our democracy” and baselessly accused President Joe Biden of “abusing the courts and weaponizing our legal system” against him.
Mr Trump’s attorneys are seeking to dismiss the case and have flatly denied any allegations of insurrection against the government, arguing that his statements fall under protected political speech.
Colorado’s 2nd Judicial District judge Sarah Wallace, who is overseeing the Denver hearings, was appointed to the seat by Democratic Governor Jared Polis last year.
She intends to act relatively quickly with a written decision upon the conclusion of the hearings. It is likely that, in whichever way she rules, the parties will appeal, potentially up to the US Supreme Court.
In any case, the suit must be resolved by 5 January, 2024, the deadline for the Colorado Secretary of State’s office to certify names that will appear on that state’s presidential primary ballots in March.
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