Testimony concluded Friday in former President Donald Trump’s disqualification trial in Colorado under the 14th Amendment, paving the way for a historic ruling later this month.
The weeklong trial featured testimony from legal scholars who explained the history of the amendment’s “insurrectionist ban,” from U.S. Capitol Police officers who were injured while fighting the mob pro-Trump on January 6, organizers of the Trump rally which preceded the violence, two members of the House of Representatives. legislators and expert on right-wing extremism.
Closing arguments are scheduled for Nov. 15, and a decision is expected shortly thereafter.
The 14th Amendment, ratified after the Civil War, states that U.S. officials who take an oath to uphold the Constitution are banned from future office if they “engage in insurrection.”
But the Constitution does not specify how to enforce the ban, and it has only been enforced twice since 1919, which is why many experts consider these challenges long-term.
What happens next?
Denver District Court Judge Sarah Wallace, who was appointed to the bench by Colorado’s sitting Democratic governor, will hear closing arguments on Nov. 15 and issue a ruling shortly thereafter.
Wallace faces a long list of complex legal questions. Was January 6 an insurrection? Did Trump “engage” in this insurrection? Does the insurrection ban apply to presidents? Can she enforce this provision, or should Congress take action?
Throughout the week, Wallace did not raise her hand to indicate how she was leaning. She rejected dozens of objections from Trump’s lawyers during witness questioning. And on Friday, she rebuffed a legal scholar Trump had put on the stand, after he suggested that Trump’s eligibility for office should be decided by Congress, not the courts.
“Do you have any examples of situations where a court has essentially said, ‘The Constitution is too difficult for me to interpret, therefore I’m going to let Congress tell me what it means.’ In general, I think that’s exactly the court’s job: to interpret the Constitution. So I’d like to hear from you, why do you think in this case, that what I need to do is say, ‘this is too hard,'” Wallace said.
The expert, Robert Delahunty, a former Bush administration official who teaches at the University of St. Thomas Law School, could cite no cases to support his argument.
No matter who wins, an appeal is expected. The case is proceeding under a special state law that allows for expedited proceedings, so any appeal will go directly to the Colorado Supreme Court. The court’s seven judges are appointed by Democrats. Their decision can be appealed to the U.S. Supreme Court, which has a conservative supermajority, including three justices appointed to the high court by Trump.
Derek Muller, an election law expert at Notre Dame Law School who has filed neutral legal briefs in related cases, said Wallace “had a lot to weigh in a short period of time.”
“It’s hard to say how it’s going to happen,” Muller said. “The court was rather passive and let in a lot of evidence. The fact that the court consistently rejected Trump’s efforts to dismiss the case is good news for the plaintiffs trying to keep him off the ballot.”
Election deniers and the January 6 revision
In some ways, the Denver trial served as a preview of the much higher-profile federal election subversion trial against Trump, scheduled for March.
In this criminal case, Trump was not charged with inciting a riot or insurrection. But special counsel Jack Smith’s indictment cites Trump’s Jan. 6 speech and describes how he fueled the violence. (Trump has pleaded not guilty.)
It was a significant part of the Colorado case, and federal prosecutors may also seek to present testimony from police officers and lawmakers who can describe how Trump’s actions hindered the certification of the 2020 election results .
Trump’s defense in Colorado relied heavily on Jan. 6 revisionism and featured testimony from an unrepentant U.S. Capitol rioter and others who still maintain the 2020 election was stolen.
In terms of legal strategy, these witnesses could contradict the challengers’ argument that January 6 was an insurrection. The 14th Amendment does not actually define the term.
One of the organizers of the Jan. 6 rally, Amy Kremer, said Thursday that the crowd at the Ellipse was full of “patriotic, freedom-loving citizens” who were “joyful, singing and dancing,” including after Trump finished his remarks. (After his testimony, Kremer put online a photo of the Capitol invaded and says: “the 2020 election was stolen!” “)
Trump’s lawyers say it shows his comments did not incite violence, a key part of his defense. Many protesters ignored Trump’s call to march to the Capitol. Many of those who marched there remained peaceful. But thousands of people participated in a violent riot, as two of the 140 police officers injured in the melee highlighted earlier in the trial.
One rioter, Tom Bjorklund, testified Thursday in Trump’s defense and admitted on the stand that he entered the Capitol grounds, although he said he never entered the building. Bjorklund, now treasurer of the Colorado GOP, has not been charged with any crime.
“It’s kind of an insult to insurgents around the world,” Bjorklund said. “Because Republicans are simply angry about an election that hardly rises to the level of an insurrection.”
Trump-era Pentagon official Kash Patel blamed Washington, D.C. Mayor Muriel Bowser, a Democrat, for the National Guard’s slow response, which took hours to quell the riot.
And Rep. Ken Buck — who is not a 2020 election denier — questioned the credibility of the Jan. 6 committee because it was made up entirely of Democrats and anti-Trump Republicans. The challengers’ arguments rely largely on the panel’s final report, which recommended disqualifying Trump from future office under the 14th Amendment.