Takeaways from Day 3 of the Trump disqualification trial in Colorado

A Colorado judge on Wednesday rejected a bid by former President Donald Trump to shut down the 14th Amendment case against his 2024 candidacy in the middle of the ongoing trial.

Denver District Court Judge Sarah Wallace said she wanted to let the proceedings move forward and hear more evidence, including on how the First Amendment might protect Trump’s incendiary speech on January 6, 2021, which the challengers have described as a “call to violence.”

Judge Sarah B. Wallace presides over the hearing in court, November 1, 2023, in Denver. - Jack Dempsey/AP
Judge Sarah B. Wallace presides over the hearing in court, November 1, 2023, in Denver. - Jack Dempsey/AP

With that, Trump began his defense case, featuring testimony from former Pentagon official Kash Patel and former Trump campaign adviser Katrina Pierson, who helped organize the January 6 rally.

It all played out one day before a separate challenge will be heard in Minnesota, where another advocacy group filed a similar lawsuit hoping to remove Trump from the 2024 ballot. Oral arguments are scheduled for Thursday at the Minnesota Supreme Court to weigh Trump’s spot on the state’s ballot.

The 14th Amendment, ratified after the Civil War, says US officials who take an oath to uphold the Constitution are disqualified from office if they “engaged in insurrection.” But the Constitution doesn’t say how to enforce the ban, and it has only been applied twice since 1919, which is why many experts view these challenges as a legal long shot.

Here are the latest highlights from Colorado and a preview of what’s to come in Minnesota.

14th Amendment expert boosts challenge

The challengers are six GOP and independent voters, whose lawsuit has the backing of a DC-based watchdog group called Citizens for Responsibility and Ethics in Washington. They wrapped up their case Wednesday with testimony from one of the leading scholars on the 14th Amendment, who said the insurrection ban applies “broadly” and covers “words of incitement.”

Indiana University law professor Gerard Magliocca has studied the 14th Amendment long before the 2020 election – including the congressional debate over its language, Justice Department memos about how the ban was applied during Reconstruction, and subsequent court cases on disqualification.

He has previously said he believes Trump is disqualified because of January 6. On the witness stand, he said the 14thAmendment was meant to apply expansively, including against presidents, and has been enforced by state courts. This rebuts some of the key defenses put forward by Trump’s lawyers.

Sean Grimsley, attorney for the petitioners, cross examines a witness during the hearing, November 1, 2023, in Denver. - Jack Dempsey/AP
Sean Grimsley, attorney for the petitioners, cross examines a witness during the hearing, November 1, 2023, in Denver. - Jack Dempsey/AP

“During Reconstruction, ‘engage in insurrection’ was understood broadly to include any voluntary act in furtherance of an insurrection against the Constitution, including words of incitement,” Magliocca said, citing opinions published by the attorney general at the time, among other historical evidence.

“It did not apply only to those who took up arms,” Magliocca added.

He described one example from 1868, shortly before the amendment was ratified, when Congress decided that a Kentucky politician was disqualified from serving because he wrote a letter-to-the-editor advocating for violence against Union troops. Another senator-elect was disqualified because he sent $100 to his son, who was serving in the Confederate Army.

Trump’s lawyers have argued that January 6 was not a full-blown insurrection as envisioned in the 14th Amendment. Magliocca said the writers of the amendment believed an insurrection was “any public use of force or threat of force, by a group of people, to hinder or prevent the execution of the law.”

In a separate criminal case, special counsel Jack Smith accused Trump of conspiring to “obstruct and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified.” That indictment highlights Trump’s heated rhetoric on January 6 and how he “exploited” the violence, but Smith didn’t charge Trump with inciting the riot or with insurrection. Trump has pleaded not guilty.

Trump witnesses testify

Trump’s legal team put on testimony that tried to undercut the notion that Trump was hoping his supporters would become violent and that he was derelict in his duties during the Capitol riot.

Patel said senior Pentagon leaders believed on January 6 that Trump “had authorized the National Guard troops we needed” during a meeting a few days earlier.

Patel acknowledged that he makes $15,000 each month to work for a pro-Trump PAC and is on the board of Trump’s social media company.

Later in the day, Pierson, a key interlocutor between the Trump White House and the groups that put on the Ellipse rally on January 6, described how she tried to keep most “fringe” members of the pro-Trump orbit away from the official event.

She said she worked to exclude right-wing conspiracy theorists Alex Jones and Ali Alexander, who were “known for being over-the-top in their rhetoric, whether it be conspiracy or outright chaos.” A deal was struck for them to headline a rally on January 5 instead, while Trump would speak on January 6.

Judge rejects Trump bid to shut down the case

Before he began his defense case, Trump lawyer Scott Gessler asked Wallace for a “directed verdict” declaring that the challengers didn’t prove their case and that Trump should stay on the ballot.

But she rejected that request and let the trial proceed. (She plans to decide the case by Thanksgiving.)

Gessler had argued that there is no evidence “that shows that President Trump in any manner, in any way, incited an insurrection, incited violence, incited a riot” under the Supreme Court precedent that says speech is protected under the First Amendment unless it spurs imminent lawless action.

Regarding Trump’s speech on January 6, when he told supporters to “fight like hell” – Gessler argued that “none of President Trump’s words were a call to violence.” He pointed out that the January 6 committee found that some of the unrest at the US Capitol began before Trump finished his speech.

The judge said she was “not prepared today to reconcile” the competing theories for how the First Amendment’s free speech protections interplay with the 14th Amendment’s insurrectionist ban.

“There’s clearly a conflict,” Wallace said. “On the one hand, you have people in the 1800s being disqualified for writing a letter to the editor. Clearly speech. On the other hand, you have a body of law holding the standards for finding incitement are very high, and the speech needs to be very specific.”

Major hearing coming up in Minnesota

The Colorado case is one of three major challenges against Trump. Another left-leaning group, Free Speech for People, filed lawsuits in Minnesota and Michigan.

Oral arguments are scheduled for Thursday at the Minnesota Supreme Court. The challengers sued Trump and Minnesota Secretary of State Steve Simon, who oversees ballot access. The plaintiffs include a former GOP-appointed state Supreme Court justice and a former Democratic secretary of state.

Simon, a Democrat, hasn’t taken a position on Trump’s eligibility, though his office said in court filings that it believes the lawsuit is “the proper process provided by state law” to adjudicate the question. He said he’ll abide by the court’s decision and asked the court to rule by January, before the March primary.

The Minnesota Supreme Court asked the parties to flesh out key topics, including whether the challengers have standing, whether Congress would need to take action to implement the “insurrectionist ban,” and whether the ban applies to presidents – because the Constitution doesn’t explicitly say that it does.

“Both the federal Constitution and Minnesota law place the resolution of this political issue where it belongs: the democratic process, in the hands of either Congress or the people of the United States,” Trump’s lawyers wrote in a court filing.

CNN’s Avery Lotz and Carol Rangel contributed to this report.

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