Witness testimony is wrapping up Friday in former President Donald Trump’s 14th Amendment disqualification trial in Colorado, setting the stage for an historic ruling later this month.
The weeklong trial featured testimony from legal scholars who explained the history of the amendment’s “insurrectionist ban,” US Capitol Police officers who were wounded while fighting the pro-Trump mob on January 6, organizers of the Trump rally that preceded the violence, two House lawmakers and an expert on right-wing extremism.
Closing arguments are slated for November 15, and a ruling is expected soon after that.
The 14th Amendment, ratified after the Civil War, says US officials who take an oath to uphold the Constitution are banned from future 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 long shot.
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 November 15 and issue a ruling shortly after that.
Wallace has a long list of complex legal questions to answer. Was January 6 an insurrection? Did Trump “engage” in that insurrection? Does the insurrectionist ban apply to presidents? Can she enforce that provision, or does Congress need to take action?
Throughout the week, Wallace hasn’t tipped her hand to indicate how she is leaning. She has overruled dozens of objections from Trump’s lawyers while witnesses were being questioned. And on Friday, she pushed back at a legal scholar that Trump put on the stand, after he suggested Trump’s eligibility for office should be decided by Congress and not the courts.
“Do you have examples of situations in which a court has basically said, ‘the Constitution’s too hard for me to interpret, therefore, I’m gonna let Congress told me what it means.’ In general, I think that’s exactly the job of the court – to interpret the Constitution. So, I’d love to hear from you, as to why you think in this instance, that what I need to do is say, ‘it’s too hard,’” Wallace said.
The expert, Robert Delahunty, a former Bush administration official who teaches at University of St. Thomas School of Law, couldn’t cite any cases to back up his point.
No matter who wins, an appeal is expected. The case is happening under a special state law that allows for expedited proceedings, so any appeals will go directly to the Colorado Supreme Court. All seven justices on the court are Democratic appointees. Their decision can be appealed to the US Supreme Court, which has a conservative supermajority, including three justices who were put on 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 “has a lot of things to weigh in a short period of time.”
“It’s hard to say how this will come out,” Muller said. “The court has been pretty passive and let a lot of evidence come in. The fact that the court has 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 January 6 revision
In some ways, the trial in Denver served as a preview of the much higher profile federal election subversion trial against Trump that is slated for March.
In that criminal case, Trump wasn’t charged with inciting the riot, or with insurrection. But the indictment from special counsel Jack Smith quotes from Trump’s January 6 speech and described how he fueled the violence. (Trump has pleaded not guilty.)
This was a major big part of the Colorado case, and federal prosecutors might similarly seek to feature testimony from police offices and lawmakers who can describe how Trump’s actions obstructed the certification of the 2020 election results.
Trump’s defense in Colorado relied heavily on January 6 revisionism and featured testimony from an unrepentant US Capitol rioter and others who still maintain the 2020 election was stolen.
In terms of trial strategy, these witnesses could undercut the challengers’ argument that January 6 was an insurrection. The 14th Amendment doesn’t actually define the term.
One of the January 6 rally organizers, Amy Kremer, testified Thursday that the crowd at the Ellipse was full of “patriotic, freedom-loving citizens” who were “joyful, singing and dancing,” including after Trump wrapped his remarks. (After her testimony, Kremer posted online a photo of the overrun Capitol and said, “the 2020 Election was stolen!”)
Trump’s lawyers say this showed that his words didn’t incite violence, a core element of his defense. Plenty of rallygoers ignored Trump’s call to go to the Capitol. Many who did march there stayed peaceful. But thousands participated in a violent riot, as highlighted earlier in the trial by two of the 140 police officers who were wounded in the melee.
One rioter, Tom Bjorklund, testified for Trump’s defense Thursday and admitted on the stand that he breached Capitol grounds, though he said he never entered the building. Bjorklund, now the Colorado GOP treasurer, hasn’t been charged with any crimes.
“It’s kind of an insult to insurrectionists around the world,” Bjorklund said. “Because Republicans just mad about an election hardly rises to the level of an insurrection.”
Trump-era Pentagon official Kash Patel blamed Washington, DC, Mayor Muriel Bowser, a Democrat, for the slow National Guard response, which took hours to quell the riot.
And Rep. Ken Buck – who isn’t a 2020 election denier – questioned the credibility of the January 6 committee because it was comprised only of Democrats and anti-Trump Republicans. The challengers’ case relies largely on the panel’s final report, which recommended disqualifying Trump from future office under the 14th Amendment.
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