On Wednesday, Colorado 2nd District Court Judge Sarah Wallace heard closing arguments from parties in a 14th amendment case, with plaintiffs seeking to remove former President Donald Trump from the state’s primary ballots next year as he seeks reelection.
Departing from state courts that have reviewed and dismissed several other similar cases due to lack of standing or jurisdiction, Judge Wallace presided over a trial that got into the weeds of whether the events of Jan. 6, 2021, constituted an “insurrection.” She is planning to issue a ruling by the end of the week.
The 14th Amendment, ratified after the Civil War, granted equal rights and citizenship to all born or naturalized in the United States, with the purpose of extending these rights and citizenship to former slaves. It included a provision, Section 3, which disqualified those who had participated in “insurrections” or “rebellions” from holding office without a two-thirds vote from Congress qualifying them.
Activists have launched several such civil petitions against state election officials across the nation, arguing this disqualifies President Trump from running for office again. Several states have already dismissed these cases, with Michigan being the latest to join them on Tuesday. The U.S. Supreme Court previously declined to hear a similar case but attorneys on both sides, in cases including this one in Colorado, expect to appeal their decisions up to the high court.
President Trump is an intervenor in the Colorado case, not the defendant. This, like the other cases, names the state secretary as the defendant, with plaintiffs—local voters—arguing that the state’s top election official must remove him from the ballot.
Several secretaries of state across the nation, along both sides of the political aisle, have made public statements arguing they have no such power under state laws, and this matter of 14th Amendment disqualification is an issue for the courts.
Colorado Secretary of State Jena Griswold, like several other state secretaries who sued under similar cases, declined to argue on whether an insurrection took place. However, unlike other secretaries, Ms. Griswold’s office argued that “no ballot purpose is served” by putting an “ineligible” candidate on the ballot, and asked the court to rule on the matter of President Trump’s qualification, which would lead to action on the secretary’s part.
The state’s Republican Party, another intervenor, argued against this position, stating that primary ballots are a party matter, pointing to the recent rulings in Michigan and Minnesota that stated as much. If it was within the secretary’s office to investigate the qualifications of presidential primary candidates, there would be supporting statutes, staff, and budget, they argued.
Jan. 6 Report and Closing Arguments
The Jan. 6 Select Committee’s report featured heavily in the trial and closing arguments. Plaintiffs’ attorneys had relied on the report’s findings, facts, witnesses, and allegations as the basis for their arguments, which President Trump’s attorney Scott Gessler, a former Colorado Secretary of State himself, objected to several times.Mr. Gessler sought to omit the report from evidence in his opening arguments, describing it as a controversial and partisan report. In his closing arguments, he said the petitioners had not sought to prove otherwise.
Sean Grimsley, attorney for the plaintiffs, recounted the points presented throughout the trial in his closing arguments, which indeed stemmed from the committee report. He showed police officer body camera footage, testimony from officers who believed their life was in danger, and quotes about engaging in hand-to-hand combat for hours on the day, and claims that “this was a coordinated attack” that occurred at the behest of President Trump.
Aside from relying on the committee report, President Trump’s tweets featured heavily in the closing arguments, with Mr. Grimsley arguing that President Trump did nothing to abate violence on that day, when “he alone had the power” to do so.
Mr. Grimsley argued that President Trump had “desecrated” his oath and should not be able to hold office again.
Mr. Gessler sought to counter the admissibility of the report in closing arguments, saying the committee had been biased from the start as evidenced in attorney Timothy Heaphy’s testimony. Mr. Heaphy led the committee’s investigation, and said it was “an obvious fact” that President Trump engaged in an “insurrection,” and that had been the working hypothesis they held from the beginning of the investigation.
He added that Mr. Heaphy testified that the investigators have been heavily “directed” by the members of Congress sitting on the committee. Mr. Gessler argued that all of those members had voted for President Trump’s impeachment and had prejudged President Trump.
He further argued that there was a clear distinction between “inciting violence” and “engaging” in an “insurrection,” and that plaintiffs had conflated the two in presenting their case. Even if the ideas could be conflated, there was no evidence that President Trump had “incited” such unlawful behavior, he added, pointing to the Brandenberg test, which determines when speech is used to incite illegal action and thus not protected by the First Amendment.
Plaintiffs had brought in an expert on right-wing extremism, who testified that President Trump had a “relationship” with violent extremists built up over the course of five years. However, he said he could not speak to President Trump’s state of mind—and a listener’s interpretation of speech alone would fail the Brandenberg test.
Mr. Gessler argued there was no evidence presented that President Trump intended to cause violence, much less an insurrection. He said that President Trump had publicly declared that what he wanted was for the vice president to delay the certification of the votes amid pending and unresolved challenges and turn things back to the states.
Mr. Gessler also pointed out that in total, the trial had lasted 17 hours.
“This is a big issue, and that was a small hearing,” he said. “This came nowhere near engaging in violence, insurrection, lawless activity.”
Judge Wallace, giving a nod toward recent rulings, said it may be possible that state courts have no jurisdiction on the matter, but she would not be revisiting prior decisions, and would issue a ruling. Unless an extension is granted, she will issue the ruling within 48 hours.
