By Mark Sumner for Daily Kos
Daily Kos Staff
Donald Trump is currently facing a civil fraud trial in New York, a second trial related to his sexual assault of writer E. Jean Carroll, a state racketeering trial centered on his attempts to overturn the 2020 election in Georgia, a federal trial for election interference in Washington, D.C., and a federal trial in Florida on charges related to his illegal retention of national security documents. That’s a pretty full slate, but another trial got underway this week in Colorado that could potentially have as much impact on Trump’s chances in the 2024 election as any of the above.
The trial, which began on Monday in the Denver courtroom of State District Judge Sarah Wallace, is breaking new legal ground. In it, a group of Colorado voters have requested that Trump be forbidden from appearing on the presidential ballot in that state due to the provisions of the 14th Amendment.
At the moment, this effort has garnered relatively little attention. However, should Wallace determine that Trump cannot run for federal office in Colorado, the effects could spread rapidly. A similar trial is expected to begin soon in Minnesota, and other states are close behind.
The 14th Amendment contains several sections and has been at the core of some closely decided Supreme Court cases. However, the wording of Section 3 is easy to interpret:
“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.”
There’s not a lot open to interpretation there. Any previous office holder who took an oath to defend the Constitution and who then engaged in an insurrection of rebellion against the United States is not allowed to run for federal or state office.
The only question that Wallace needs to answer is whether that applies to Trump. As The New York Times reported on Monday, the voters who brought this case to court say that Trump’s actions leading up to the Jan. 6 assault on the Capitol, along with his broader efforts to overturn the 2020 election results, meet the definition of an insurrection or rebellion.
Trump and his attorneys have leveled the same accusation of “election interference” against the Colorado trial that they have used in attempting to halt other legal actions against Trump. However, Wallace has already rejected multiple attempts by Trump’s team to have the case dismissed. That includes rejecting a motion to dismiss on grounds that the trial violated Trump’s rights to free speech—an approach that also met with defeat in the D.C. courtroom of Judge Tanya Chutkan on Sunday when she moved to reinstate a gag order against Trump.
The trial opened with dramatic testimony from D.C. Metro Police Officer Daniel Hodges, who called the events of Jan. 6 “horrific” and said they were a “terrorist attack on the United States of America.” Rep. Eric Swalwell also testified, describing events of Jan. 6 from his perspective inside the Capitol.
According to the Times, Trump’s attorneys argued that the 14th Amendment requirements were not met, because “engaging” in an insurrection requires more than “mere incitement through words,” which seems very much as if Trump’s legal team was admitting that Trump had incited an insurrection. The testimony from Trump’s team on Monday consisted of submitting a pair of Trump tweets encouraging his supporters to leave peacefully, both of which were not issued until hours after the assault began.
As The Washington Post points out, similar lawsuits did not keep Republican Reps. Madison Cawthorn or Marjorie Taylor Greene off the ballots (though Cawthorn went on to lose). However, a county commissioner was removed from office in New Mexico for his involvement on Jan. 6 after a state judge determined he had violated Section 3.
In addition to dealing with whether Trump engaged in an insurrection, Wallace will also need to determine whether Section 3 prevents someone from running for office, rather than holding that office if elected. In an earlier court document, Wallace laid out nine points of discussion, including how Section 3 has been interpreted and applied in the past—which may mean looking at cases going back to the Civil War.
The Minnesota case is expected to get underway this week and will be heard directly by the state supreme court. Since these are cases brought at the state level meant to determine candidates those states allow to appear on ballots, experts believe it’s unlikely that the United States Supreme Court will intervene in these cases.
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