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Legal debates begin on blocking Trump from presidential vote under “insurrection” clause

DENVER (AP) — Efforts to use U.S. Constitution’s ‘insurrection’ clause ban former president Donald Trump to run for the White House entered a new phase again Monday in a hearing focused on whether the Attack on the Capitol on January 6 meets the Constitution’s definition of the word and whether Trump’s role meets the threshold for prohibition.

THE Colorado hearing is the first of a series of lawsuits filed by two states that could reach the United States Supreme Court. Monday’s testimony began with details of the 2021 assault that aimed to disrupt the certification of Joe Biden’s electoral victory.

Attorney Eric Olson, representing a group of Colorado voters seeking to keep Trump off the ballot, recounted Trump’s violent rhetoric and encouragement of a crowd that came within “40 feet” of the vice president when she stormed the Capitol. He said Trump “summoned and organized the mob.”

“We’re here because Trump is claiming, after all of this, that he has the right to be president again,” Olson said. “But our Constitution, the common charter of our nation, says he cannot do it.”

However, a lawyer representing Trump, Scott Gessler, called the lawsuit “anti-democratic” and noted that at least one other presidential candidate — socialist union organizer Eugene Debs – escaped from prison without anyone trying to disqualify him.

“When it comes to deciding who should lead our nation, it is the people of the United States of America who make that decision, not six voters in Colorado who chose who they should take legal action against.” , did he declare.

Gessler, Colorado’s former secretary of state, said there is an informal principle in election law known as the “democracy rule,” which essentially means “err on the side of letting people vote” every time that there is an ambiguity.

Thursday, pleadings are scheduled before the Minnesota Supreme Court in an effort to expel the former Republican president from the polls in that state. Whether the justices keep Trump on the ballot or expel him, their decisions will likely be quickly appealed, possibly to the U.S. Supreme Court.

The nation’s highest court has never ruled on the Civil War-era provision of the 14th Amendment that prohibits those who took an oath to uphold the Constitution and then “engaged in insurrection” against it from occupy higher positions.

“We’ve had hearings before with presidential candidates debating their electability — Barack Obama, Ted Cruz, John McCain,” said Derek T. Muller, a law professor at Notre Dame, listing the candidates challenged over whether they were eligible. “They met the constitutional requirement of being a “natural born citizen.” But these cases, Muller added, are different from the use of an obscure clause of the Constitution with the “incendiary” ban against insurrection .

Even though they are a longshot, Muller said, they have a plausible legal path to success and raise important questions.

“These legal issues are very fraught,” Muller said.

Dozens of cases citing Section Three of the 14th Amendment have been filed in recent months, but those in Colorado and Minnesota appear to be the most important, legal experts say. This is because they were filed by two liberal groups with significant legal resources. They also targeted states with clear and timely procedures for challenging candidates’ electoral qualifications.

The plaintiffs in these cases argue that the problem is simple:

“Four years after taking an oath to ‘preserve, protect, and defend’ the Constitution as President of the United States…Trump attempted to overturn the results of the 2020 election, leading to a violent insurrection at the United States Capitol to stop the vote. lawful transfer of power to his successor,” asserts the Colorado lawsuit, filed on behalf of Republican and unaffiliated voters by the liberal group Citizens for Responsibility and Ethics in Washington.

“By inciting this unprecedented attack on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including that of President.”

Trump called the lawsuits “election interference.” His lawyers argue that none of the issues are straightforward in a provision of the Constitution that hasn’t been used in 150 years.

“This is a legal Hail Mary from the Democrats,” said Mike Davis, a lawyer who appeared with Trump campaign representatives in court Monday in Denver before the start of the trial in the Colorado. “This matter will fail.”

At the start of Monday’s hearing, the judge denied a request by Trump that she step aside because she had previously contributed financially to a liberal group.

Trump’s campaign said it filed a motion to have the judge in the case, Sarah B. Wallace, recuse herself because she donated $100 in October 2022 to the Colorado Turnout Project, a group whose website says it was created to “prevent violent insurrections” like the January 6 attack.

She was appointed to the bench in August of that year by Governor Jared Polis, a Democrat. Wallace denied the motion, saying she did not remember the donation until the motion was filed and that she had no preconceived ideas about the legal issues in the case.

“I will not allow this legal proceeding to turn into a circus,” she said at the start of the hearing.

The 14th Amendment clause was used only a few times immediately after the Civil War. Trump’s lawyers say it was never intended to apply to the office of president, which is not mentioned in the text, unlike “senator or representative in Congress” and “elector of the president and vice -president “.

This provision allows Congress to grant amnesty – as was done in 1872 to allow former Confederates to reenter the government – ​​which has led some to argue that it has no power without an enabling law from the Congress.

Finally, Trump’s lawyers say the former president never “engaged in insurrection” and simply exercised his free speech rights to warn against Election results he didn’t believe they were legitimate. They noted instances where Section Three Congressional framers refused to use it against people who only rhetorically supported the confederacy.

Lawyers on both sides should delve deeper into the history of the drafting of the 14th Amendment provision and its use between its passage in 1868 and the Amnesty Act in 1872. There is little legal precedent on the issue – so little that the Lawyers had to debate the meaning of a case written in 1869 by Salmon Chase, who was then chief justice of the U.S. Supreme Court but had only written as an appellate judge.

After the Amnesty Act of 1872, legal scholars could only find the provision cited once, when Congress refused to seat a socialist member in the House of Representatives because he opposed the entry into the First World War.

Then last year, CREW used it to bars the leader of the “Cowboys for Trump” from a county commission seat in rural New Mexico. A second liberal group, Free Speech For People, filed lawsuits seeking to block Republican Reps. Marjorie Taylor-Greene and Madison Cawthorn from running for office.

The judge in Greene’s case ruled in his favorwhile the case of Cawthorn has become irrelevant after being beaten in his primary. Free Speech For People filed suit in Minnesota, where challenges to election appearances go directly to the state Supreme Court.

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