Efforts to use the U.S. Constitution’s “insurrection” clause to bar former President Donald Trump from running for the White House again entered a new phase Monday in a hearing focused on whether the Jan. 6 Capitol attack meets the Constitution’s definition of the word and whether Trump’s role meets the threshold for being barred.
The Colorado hearing is the first of two states’ lawsuits that could end up reaching the U.S. Supreme Court.
Monday’s testimony began with details about the 2021 assault that was intended to halt certification of Joe Biden’s election win.
Attorney Eric Olson, representing a group of Colorado voters seeking to keep Trump off the ballot, recounted Trump’s violent rhetoric and encouraging of a crowd that came within “40 feet” of the vice president when they stormed the Capitol. He said Trump “summoned and organized the mob.”
“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.”
At the start of Monday’s hearing in Colorado, the judge rejected a Trump motion that she step aside because she once contributed money to a liberal group.
On Thursday, oral arguments are scheduled before the Minnesota Supreme Court on an effort to kick the Republican former president off the ballot in that state. Whether the judges keep Trump on the ballots or boot him, their rulings are likely to be swiftly appealed, eventually to the U.S. Supreme Court. The nation’s highest court has never ruled on the Civil War-era provision in the 14th Amendment that prohibits those who swore an oath to uphold the Constitution and then “engaged in insurrection” against it from holding higher office.
“We’ve had hearings with presidential candidates debating their eligibility before — Barack Obama, Ted Cruz, John McCain,” said Derek T. Muller, a Notre Dame law professor, listing candidates challenged on whether they met the constitutional requirement of being a “natural born citizen.” But these cases, Muller added, are different from using an obscure clause of the Constitution with the “incendiary” bar against insurrection.
Even if they’re long shots, Muller said, they have a plausible legal path to success and raise important issues.
“Those legal questions are very heavy ones,” Muller said.
Dozens of cases citing Section Three of the 14th Amendment have been filed in recent months, but the ones in Colorado and Minnesota seem the most important, according to legal experts. That’s because they were filed by two liberal groups with significant legal resources. They also targeted states with clear, swift processes for challenges to candidates’ ballot qualifications.
That means the Colorado and Minnesota cases are taking a more legally sound route to get courts to force election officials to disqualify Trump, as opposed to other lawsuits that seek a sweeping ruling from federal judges that Trump is no longer eligible for the presidency.
The plaintiffs in the cases argue the issue is simple: Trump’s efforts to overturn his 2020 election loss, leading to the Jan. 6, 2021, attack on the U.S. Capitol, mean he’s disqualified from the presidency just as clearly as if he were not a natural-born citizen, another constitutional prerequisite for the office.
“Four years after taking an oath to ‘preserve, protect and defend’ the Constitution as President of the United States … Trump tried to overthrow the results of the 2020 election, leading to a violent insurrection at the United States Capitol to stop the lawful transfer of power to his successor,” alleges the Colorado lawsuit, filed on behalf of Republican and unaffiliated voters by the liberal group Citizens for Responsibility and Ethics in Washington.
“By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”