DENVER (CN) — Former president Donald Trump on Friday rested his defense against voters who say he must be kept off the Colorado GOP primary ballot due to his his involvement in the Jan. 6, 2021, attack on the U.S. Capitol.
Six Colorado voters — four registered Republicans and two independents — petitioned Colorado Secretary of State Jena Griswold on Sept. 6, claiming Trump incited the Jan. 6, 2021, insurrection with his speech at the Ellipse park in Washington that day and is therefore disqualified from holding office under the 14th Amendment. Trump filed to intervene once it became clear that Griswold, a Democrat, had no intention of mounting a defense.
Trump maintains that his political speech is protected by the First Amendment and did not rise to the bar of incitement. He additionally challenges the notion that Section III of the 14th Amendment even applies to a U.S. president.
Passed in the aftermath of the Civil War, the law bars individuals from holding office if they “engaged in insurrection or rebellion” while under the oath of office. The ban can be overturned by a two-thirds vote in the U.S. House and Senate.
To support this argument, Trump’s attorneys called on Robert Delahunty, a legal scholar with ties to the conservative Federalist Society. Delahunty’s testimony contested research conducted by Gerard Magliocca, a professor at Indiana University’s McKinney School of Law.
Magliocca testified on Wednesday that historically, “an insurrection was any public use of force or threat of force to hinder or prevent execution of the law.”
Delahunty contends this definition is far too broad, potentially even implicating that someone who interfered with delivering the mail had committed insurrection.
“I think that disrupting the delivery of the mail would constitute a disruption of the execution of the Constitution,” Delahunty argued.
Delahunty also suggested courts defer to Congress for guidance on applying the law.
“This is all uncharted territory,” he said.
Second Judicial District Judge Sarah Wallace questioned the assertion that the issue is inappropriate for a state court to take up.
“Do you have any examples of a court saying it’s too difficult to interpret the Constitution?” Wallace asked. “I think that’s exactly the court’s job.”
Delahunty explained that he didn’t think Section III of the 14th Amendment was meant to be self-executing — meaning a state or Congress needed to pass another law to apply this one.
“Under this theory essentially wouldn’t it put in question whether this provision of the 14th Amendment even exists, if you gave Congress the power to decide what to apply or not apply?” Wallace asked.
Delahunty confirmed this to be his view.
“Section III is a dead letter unless we provide some enforcement mechanism,” Delahunty said.
On behalf of the plaintiffs, attorney Jason Murray informed Delahunty that Colorado law gives a right of action to enforce Constitutional provisions to qualify presidential candidates.
Rather than being punitive, Magliocca testified on Wednesday the amendment adds a new qualification to hold office hinging on having taken a prior oath.
“The oath was central to the limitation,” Magliocca said. “The rational is the oath you take is to the Constitution, and not to the United States generally, so the insurrection would be against the Constitution which you swore an oath to support.”
As a final witness, the voters’ team questioned attorney Tim Heaphy, chief investigative counsel for the U.S. House Select Committee on the Jan. 6 attack about the compilation of the report.
Trump’s attorney Scott Gessler has objected to the inclusion of the report as evidence and pressed Heaphy on the committee’s political bias. Heaphy identifies as a Democrat but said there were several Republican-affiliated attorneys on the investigation team.
Gessler asked Heaphy whether the report was investigated with the assumption that Trump incited the attack, or whether researchers had an open mind.
“The president repeatedly talked about the election being stolen and the fact that different rules apply — saying that to an angry mob on the Ellipse incited violence,” said Heaphy who testified remotely over WebEx. “At the beginning it was an obvious fact that gave rise to a hypothesis. But you test it, as you always do, and that hypothesis did not change.”
In a video statement released by his campaign, Trump called the proceedings a fake trial and told viewers to watch out for the 2024 election.
“If we don’t win, we will not have a country,” Trump declared. “If we do win, we will make America greater than it’s ever has been before.”
Parties will present closing arguments on Nov. 15. The Colorado Secretary of State has until Jan. 5, 2024, to certify ballots.
Follow @bright_lamp
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
