Trial begins on whether Trump should be kept off the 2024 ballot in Colorado

A Denver court began hearing arguments Monday in a lawsuit seeking to bar former President Donald Trump from the state’s 2024 ballot over his role in the Capitol attack on Jan. 6, 2021.

The trial comes after Colorado Judge Sarah Wallace last week rejected the latest attempt by Trump to toss the lawsuit, which was filed on behalf of six voters in Denver district court last month.

The lawsuit argues Trump should be prohibited from running in future elections, citing Section 3 of the 14th Amendment to the Constitution, which states no person may hold office if they “engaged in insurrection or rebellion” after swearing under oath to support and defend the Constitution. The suit alleges Trump violated his oath of office in his efforts to overturn the 2020 election, leading up to the Jan. 6 attack on the Capitol.

The lawsuit was filed by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) and several law firms on behalf of six Republican and unaffiliated voters.

Eric Olson, a lawyer for CREW, began the hearing by describing Trump’s conduct in the days leading up to Jan. 6, including a tweet in December 2020 telling his supporters that there would be a rally in Washington, D.C. Olson said Trump had repeatedly talked about Jan. 6 and argued that he riled up his supporters by encouraging them to come to D.C. that day while pushing false claims of election fraud. 

Olson played a video clip of Trump’s speech on the Ellipse the morning of Jan. 6 that included a part when the then-president said “let’s walk down to the Capitol.” He argued that Trump “knew the power of his words” and that his speech agitated his supporters. 

Olson also pointed to a tweet Trump posted shortly after the conclusion of his speech on the Ellipse that attacked then-Vice President Mike Pence for what he described as not having “the courage to do what he should have done.” He then played a clip showing the mob of Trump supporters outside the Capitol shouting: “Hang Mike Pence.”

“We are here because Trump claims, after all that, that he has the right to be president again,” Olson said. “But our Constitution, the shared charter of our nation, says he cannot do so.”

Scott Gessler, a lawyer for Trump, decried the lawsuit as “antidemocratic” and characterized Monday’s hearing as “politicized” in opening arguments. He insisted that Trump had used the word “peace” several times during his speech on the Ellipse on Jan. 6 and in tweets that day. He argued that the lawsuit is an effort to get the court to endorse the report by the Jan. 6 Committee, which he described as a “one-sided poisonous report.”

Gessler said the defense will present evidence showing Trump took precautions on Jan. 6 to avoid violence and that the rally outside the Capitol was “peaceful.”

“We should allow only real evidence that’s subject to cross examination” rather than the Jan. 6 report “with little to no credibility,” Gessler said.

Grant Sullivan, a lawyer representing Colorado’s Democratic secretary of state, Jena Griswold, said she won’t offer any evidence in the case and doesn’t have any direct evidence on whether Trump engaged in insurrection. However, Griswold would make her deputy elections director available to testify on how her office administers state election law, Sullivan said.

Metropolitan Police Department Officer Daniel Hodges took the stand to testify about his harrowing experience as the Capitol attack unfolded. He recalled seeing Capitol rioters wearing tactical gear, which he said made him “very uncomfortable.” He testified that he sustained multiple injuries as rioters stormed the Capitol, including bruises on his body, a large contusion on his head, lacerations on his face, bleeding in his mouth, and said a rioter attempted to gouge his eye out. He said he remembers rioters chanting that the “election was stolen” and to “fight for Trump” as they scolded law enforcement for being “on the wrong side of history.”

Rep. Eric Swalwell, D-Calif., testified remotely that Trump made clear before the 2020 election that he wouldn’t accept the results if he lost, and that the then-president proceeded to ramp up his rhetoric after lawsuits challenging the results were dismissed.

Swalwell recalled lawmakers becoming increasingly concerned when Trump said “we’re going to the Capitol” during his speech on the Ellipse. He went on to recall his and other lawmakers’ distressing experiences in the chamber as rioters breached the Capitol.

In her ruling last week, Wallace dismissed Trump’s argument that Congress, not the courts, has the authority to handle questions about ballot eligibility. She also rejected Trump’s claim that state election officials don’t have the authority to enforce Section 3 of the 14th Amendment.

The judge noted that the clause “clearly gives Congress the ability to remove a constitutional disability should a person be disqualified” under the provision, but that it “says nothing regarding what government body would adjudicate or determine such disability in the first instance.”

“The Court notes, however, it would be strange for Congress to be the only entity that is empowered to determine the disability and then also the entity that is empowered to remove it,” Wallace wrote.

Wallace said “states can, and have, applied Section 3 pursuant to state statutes without federal enforcement legislation.”

Wallace’s ruling followed a decision by Chief U.S. District Judge Philip A. Brimmer to dismiss Trump’s request to move the Colorado ballot case to federal court. In a four-page order, Brimmer, a George W. Bush nominee, said Trump did not properly serve Griswold or obtain her approval to move the case to federal court, making Trump’s bid to move the case “defective.”

Trump is also facing other challenges on his eligibility to appear on the 2024 presidential ballot. Arguments before the Minnesota Supreme Court in a lawsuit to boot Trump off the ballot in the state, which also cites the little known provision in the 14th Amendment of the Constitution, are set to begin Thursday. Similar legal challenges are underway in New Hampshire, Arizona and Michigan.

Trump, who continues to falsely insist that he won the 2020 election, has repeatedly denied wrongdoing in his efforts to overturn the results as well as his role in the Capitol attack. He called the lawsuit in Colorado to remove him from the ballot under the 14th Amendment “nonsense” and “election interference.”