A Colorado judge on Wednesday denied a request from lawyers representing former President Donald J. Trump to dismiss a case challenging his eligibility for future office. The judge, Sarah B. Wallace, stated that she was not ready to make a decision on the significant legal issues presented, many of which have never been addressed by any court. This means that the trial will proceed until Friday, when a final ruling will be made.
The judge’s decision came after Mr. Trump’s lawyer requested a “directed verdict,” which would conclude that the plaintiffs do not have sufficient legal grounds to win the case before the defense presents any witnesses. The Trump team argued that the First Amendment protected his words and actions leading up to the January 6, 2021, attack on the Capitol. Judge Wallace, presiding over the case in a Denver state district court, rejected this request.
The case, one among several similar ones across the country, was filed by six Colorado voters who claim that Mr. Trump is disqualified under Section 3 of the 14th Amendment. This section prohibits anyone from holding office if they have “engaged in insurrection or rebellion” against the Constitution after taking an oath to support it.
Over the course of two and a half days starting on Monday, the plaintiffs’ lawyers presented a series of witnesses aimed at proving that Mr. Trump incited far-right extremists to attack the Capitol, constituting “engaging in insurrection” as defined in the 14th Amendment ratified in 1868.
Professor Peter Simi, an expert on political extremism, testified that Mr. Trump had used coded language that was understood by insiders as a call for violence. He argued that Mr. Trump had built a rapport with groups like the Proud Boys and Oath Keepers, who saw him as an ally speaking to them in that manner.
According to Professor Simi, when Mr. Trump told the Proud Boys to “stand back and stand by” during a 2020 debate, they interpreted it as an order to prepare for future action. His tweet before January 6 stating, “Be there, will be wild,” was understood by them as the assigned task. His repeated calls to “fight” during the January 6 speech were seen as a call to violence. The call for a peaceful and patriotic march was perceived as mere theatrics.
On Wednesday, Professor Gerard Magliocca, a law professor, testified that “insurrection” in the 14th Amendment referred to any use or threat of force to hinder the execution of the law, while “engaged” meant any voluntary act in furthering an insurrection, including incitement.
Professor Magliocca cited various sources, such as congressional debates, court rulings, and legal analyses, to support this interpretation. He also referenced two instances after the Civil War, just before the ratification of the 14th Amendment, in which Congress refused to seat members due to their support for violence against the Union.
After the plaintiffs’ lawyers finished presenting their witnesses on Wednesday (except for one scheduled for Friday), Mr. Trump’s lawyers requested a directed verdict, asserting that even if the plaintiffs’ arguments were accepted as true, they would not justify disqualifying Mr. Trump.
The defense invoked the Supreme Court’s 1969 Brandenburg v. Ohio ruling, which states that for speech to be considered incitement not protected by the First Amendment, it must be directed at inciting immediate lawless action likely to occur.
Mr. Trump’s legal team argued that his statements prior to January 6 were not imminent enough to meet the standard, and that nothing he said on that day called for violence. They also claimed that his mention of a peaceful and patriotic march negated any violent intent.
The plaintiffs countered that incitement was not the sole measure of “engaging in insurrection” under the 14th Amendment, and that Mr. Trump’s actions did satisfy the Brandenburg test. They argued that implicit calls for violence in his January 6 speech fulfilled the first prong of the test, and the subsequent events were foreseeable enough to meet the second prong.
Judge Wallace clarified that her rejection of the request did not indicate a ruling on which side was correct, but rather a recognition of the complexity of the legal questions involved, including the balance between the First and 14th Amendments. She acknowledged that both sides had presented legal precedents supporting their respective claims.
Mr. Trump’s defense then began calling their own witnesses, and their testimony is expected to continue until Friday.