By: Ana Cucalon

edited by: Colin crawford and valerie chu

Donald Trump’s latest legal woes accuse him of violating constitutional law during the Capitol riot on January 6th, 2020. The trial started Monday, October 30th, in Denver Colorado, and was initiated by six Colorado voters with the help of Citizens for Responsibility and Ethics in Washington. [1] Judge Sarah B. Wallace presided over the trial which focused on Section 3 of the 14th Amendment. She will have to decide whether or not the Amendment bars Trump from the 2024 presidential election, since it states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. [2]

The trial primarily focused on two issues. First, on defining “engaged” in the 14th Amendment, and if by that definition Trump “engaged” in the Capitol riot. Second, on defining “insurrection,” and whether or not the Capitol riot was the kind of insurrection the 14th Amendment condemns. Generally, the trial covered the following nine topics: [3]

How often and on what basis does the Secretary of State exclude candidates based on constitutional deficiencies?
What is the process for drafting and approving the Major Party Candidate and Statement of Intent and who can revise or edit it?

What is the meaning and historical application of Section 3 of the 20th Amendment?
How should the 2022 revisions to 3 U.S.C. § 15 be addressed?
What is the history and application of Section 3 of the 14th Amendment?
Is Section 3 of the 14th Amendment self-executing?
Does Section 3 of the 14th Amendment apply to Presidents?
What is the meaning of “engaged” and “insurrection” as used in Section 3 of the 14th Amendment?
Did Intervenor Trump’s actions meet the standard set forth in Section 3 of the 14th Amendment?

From Monday, October 30th to Friday, November 3rd, the plaintiffs’ lawyers laid out their argument against Trump. To address Trump’s “engagement” in the riots they brought in witnesses Timothy J. Heaphy, the chief investigative counsel for the Jan. 6 committee; Peter Simi, a professor of sociology at Chapman University and an expert on political extremism; William C. Banks, a law professor at Syracuse University and an expert on presidential authority in national security; Representative Eric Swalwell, from the Democratic Party in California; Daniel Hodges, a Washington, D.C., police officer; and Winston Pingeon, a Capitol Police officer. Both officers were at the Capitol on Jan. 6. All testified that Trump held an active role in the riots whether from his incitement of violence through his speeches and social media posts, or through his inaction to prevent the riots.

To clarify the language of the 14th Amendment, Trump’s lawyers brought in Gerard Magliocca, a law professor at Indiana University and an expert on Section 3 of the 14th Amendment, to testify. He said that at the time of the Amendment’s ratification, “engaged” referred to “any voluntary act in furtherance of an insurrection, including words of incitement”, and “insurrection” referred to “any public use of force or threat of force by a group of people to hinder or prevent the execution of the law.” On the question of the court’s authority to disqualify a presidential candidate, Hilary Rudy, a deputy elections director in the Colorado secretary of state’s office, testified that the state was obliged to only allow candidates qualified for the presidency on the ballot, a verdict which she argues the court has full right to make.

In response, Trump’s lawyers brought in witnesses to either vouch for Trump’s attempt to prevent the violence at the riots or to argue that there was no violence at all. They included Kashyap Patel, a former chief of staff at the Defense Department; Katrina Pierson, a former spokeswoman for Mr. Trump’s campaign; Amy Kremer, an organizer of the Jan. 6 rally; Thomas Van Flein, general counsel and chief of staff to Republican Representative Paul Gosar of Arizona; and Tom Bjorklund, the treasurer of the Colorado Republican Party, who testified as a private citizen. Furthermore, witness Robert J. Delahunty, a law professor at the University of St. Thomas, testified for the defense that the concepts of “engaged” and “insurrection” in the 14th Amendment are too vague to be the basis for any legal action unless Congress were to agree on a definition in a separate trial.

The trial also briefly dealt with Section 3 of the 20th Amendment, which discusses succession, and the procedure if a President-elect does not qualify for presidency. The President-elect is the candidate who has presumably won the presidential election and is awaiting inauguration, whereas a presidential candidate has not won the election yet. The Amendment says Congress can decide what action to take when both the President and Vice President-elect are disqualified. [4] Trump’s attorneys argued that this disallows states from disqualifying him from the 2024 election, as that power rests in Congress, but lawyers from the plaintiff responded that this clause only applies to the President and Vice-President-elects, not candidates. [5]

The case, which presents unprecedented questions on constitutional law, has caused quite a lot of discourse among legal scholars. In an article due to be released next year, Professors William Baude and Michael Stokes Paulsen from the University of Chicago and the University of St. Thomas concluded that the 14th Amendment disqualifies Trump from holding office due to his engagement in the January 6th riots following Joe Biden’s win of the 2020 elections. They argue there is ample evidence proving Trump participated in the riots, considering his instigation of the march and his silence when the march turned violent. [6] Not all legal scholars agree. The controversy around the topic largely stems from the 14th Amendment’s context in a post-Civil War era, and whether or not that context applies to modern times. In addition, the Amendment’s broad language and the lack of recent precedent divide opinions. Critics argue that it is unreasonable for an amendment designed to disqualify Confederates from office to disqualify a 2024 presidential candidate. Nonetheless, scholars such as Professors Baude and Paulsen certify that the Constitution blatantly addresses and condemns Trump’s actions before, during, and after the Capitol riot. At the very least, they ask for the legal community to address what they refer to as a “vital constitutional issue,” a concern reflected in Judge Wallace’s refusal of the defendant’s request for the trial to be dismissed. [7]

While it is unclear what the verdict of the Colorado trial will be, it can be expected for the losing side to appeal. That would give the mostly conservative Supreme Court, with three justices appointed by Trump, the final verdict.

Notes:

Anderson et al. v. Trump, 2023CV32577, Colorado, (District Court, City and County of Denver, Colorado. 2023).
U.S. Const., Amend 14.S3.1
Anderson et al. v. Trump.
U.S. Const., Amend 20.S3.1
Astor, Maggie. 2023. “14th Amendment Trump Disqualification Trial Begins in Colorado.” (The New York Times, October 30, 2023). https://www.nytimes.com/2023/10/30/us/politics/trump-colorado-trial-14th-amendment-jan-6.html.
Liptak, Adam. 2023. “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.” (The New York Times, August 11, 2023). https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html.
Liptak, “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.”

Bibliography:

Anderson et al. v. Trump, 2023CV32577, Colorado, (District Court, City and County of

Denver, Colorado. 2023).

Astor, Maggie. 2023. “14th Amendment Trump Disqualification Trial Begins in Colorado.” The New York Times, October 30, 2023. https://www.nytimes.com/2023/10/30/us/politics/trump-colorado-trial-14th-amendment-jan-6.html.

Liptak, Adam. 2023. “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.” The New York Times, August 11, 2023. https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html.

U.S. Const., Amend 14.S3.1

U.S. Const., Amend 20.S3.1