The trial in Colorado that seeks to bar former President Donald Trump from the 2024 presidential ballot under the 14th Amendment insurrection clause began last week and could go on for a while.
The lawsuit, filed in September by six Colorado voters with the help of a watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), argues that former President Donald J. Trump is ineligible to hold office again under Section 3 of the 14th Amendment. This section disqualifies anyone who "engaged in insurrection or rebellion" against the Constitution after having taken an oath to support it.
If CREW rings a bell, it might be because their 2019 Freedom of Information Act request revealed that Donald Trump Jr.'s sheep hunt and travel to Ulaanbaatar for a private meeting with Mongolian President Khaltmaagin Battulga cost US taxpayers $76,859.36 for United States Secret Service protection.
This is a perfect moment to take a quick pause and wonder how we collectively got here and why we have become desensitized to phrases such as "engaged in insurrection and rebellion," when applied to the context of a former president of the United States. For now, this question and the entire family of questions that follow seem to be rhetorical—we just are where we are. We have been pelted for years now by legally and politically unpredicted events that attempting to constitutionally block a former American president from again running for office is becoming page two news.
Back to Colorado, where the trial is being presided over by Judge Sarah B. Wallace, who has laid out nine topics to be addressed at the trial, including whether Section 3 of the 14th Amendment applies to presidents, what "engaged" and "insurrection" mean under that section, whether Mr. Trump's actions fit those definitions, and whether the amendment is "self-executing." These questions have been debated since the Jan. 6, 2021, attack, especially since Trump Sr. announced that he was running for president again, but there is little precedent to help answer them.
The insurrection clause's Civil War-era history is being scrutinized in the trial to determine if Trump can be barred from offices. The meaning of the insurrection clause is being debated, with some legal scholars saying that it applies to Trump after his role in trying to overturn the 2020 presidential election and encouraging his backers to storm the U.S. Capitol.
The Colorado lawsuit is one of several efforts around the country to remove Mr. Trump from ballots under the 14th Amendment. As reported in The New York Times, oral arguments in a case in Minnesota begin on Thursday.
The former president's legal team argued that the "anti-democratic" lawsuit is tantamount to "election interference" in the 2024 presidential race, where Trump is the undisputed frontrunner in the GOP primary. As The Hill reported, "(This lawsuit) looks to extinguish the opportunity...for millions of Coloradans—Colorado Republicans and unaffiliated voters—to be able to choose and vote for the presidential candidate they want," Trump attorney Scott Gessler said.
As Michael T. van der Veen, the lawyer who represented Trump during his second impeachment trial, told me on Thursday in a phone interview, "If any of these 14th Amendment challenges work, a significant portion of the American electorate will see this as blocking a Trump candidacy on a technicality—a wildly un-democratic move in their eyes."
It is critically important to understand the outcome of this primary determination is certainly going to be relitigated. The proponents of the disqualification argument won't stop if Trump is allowed to be on the ballot for the presidential primaries, nor will the legal arguments cease if he isn't allowed on the primary ballot.
While it is unprecedented to bring this type of case against a former president, as CREW points out, Jan. 6 was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build as fundamental protections to the Constitution and democracy.
Finally, those hypothesizing that these challenges are ultimately headed for the Supreme Court are almost certainly right. The idea this this incarnation of the court is going to make a decision that will be widely perceived as taking political and power away from Trump's base simply isn't realistic.
This is a 6-3 conservative court that is, at least from where I sit, absolutely not going to tell Americans that they can't vote for Donald J. Trump if they want to because of a super-vague constitutional clause. That's difficult to swallow if you believe that Jan. 6 was indeed an insurrection and Trump was its lead architect. But many Americans don't.
A year ago was the last time Americans were polled on this and the results were eye-opening.
As highlighted in a Brookings report, A Quinnipiac University poll conducted in June 2022 found that 13 percent of Republicans called Jan. 6 an insurrection, while 45 percent called it a riot, and 61 percent called it a legitimate protest. Another poll conducted by PBS NewsHour, NPR, and Marist in January 2022 found that about 80 percent of Republicans either think the events of Jan. 6 were a legitimate act of dissent or should be put aside as something that occurred in the past. Finally, a Monmouth University poll conducted in June 2021 found that nearly half of Republican respondents said that it is appropriate to describe what happened on Jan. 6 as a legitimate protest compared to only 13% of Democrats
These aren't just interesting statistics; they speak to the heart of the issue in the Colorado and Minnesota challenges. If we can't agree upon the political nature of Jan. 6, maybe the court won't be able to agree upon the legal nature.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst forEsquire Digital and Today's Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Today's Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal,Law.com,The Boston Globe, and many other leading publications across the globe.
The views expressed in this article are the writer's own.
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