(Photo courtesy of NBCNews). “Donald Trump in a court room.”
Last Monday on October 30, proceedings began for a trial that may decide the 2024 election before a single ballot is cast. In Colorado, an activist group is attempting to disqualify Trump from the 2024 presidential ballot under subsection 3 of the 14th Amendment. Commonly referred to as the “Insurrection Clause,” this Civil War era Amendment was designed to bar those who “engaged in insurrection or rebellion” against the United States from running for office.
The charge comes from Citizens for Responsibility and Ethics in Washington, or CREW, a liberal government watchdog organization based in D.C. In the about section of their website, it prominently displays their multiple attempts to sue Trump in the past, including on his very first day in office. CREW also boasts that their ethics complaints have resulted in the reprimand of over a dozen Trump admin officials.
This insurrection argument being made against the former president is unprecedented in American history, however, similar arguments are concurrently being made in Minnesota and Michigan by different activist groups. UMass Lowell professor of Political Science Benjamin Williams, Esq., believes that these proceedings will have massive implications in future administrations and elections, saying “The possibility of a presidential candidate being prohibited from running, based on a 14th Amendment analysis, would be a watershed moment in American politics … both for the precedent that it sets [and] what future parties would try to do with that precedent.”
Trump and his legal team have already made several arguments to try and get the case dismissed. They included free speech rights, whether the clause can apply to a former president, and the power of the judiciary to make this decision over eligibility rather than the state legislature. There was also a question presented about whether Colorado election officials have the power to enforce such a decision. Finally, and most central to the case, is the question of whether former President Trump committed or incited insurrection on January 6. Both the facts and characterizations of the events surrounding January 6, 2021, like so many other political touchstones in modern America, remain in deep dispute.
Both parties in this trial have made appeals to the principles of democracy to swing the case in either side’s favor. For critics of Trump, the core message behind this trial, along with the several other criminal and civil proceedings Trump is facing, is that no one is above the law, not even a former president. Those opposed to Trump believe that both he and his supporters’ actions at the Capitol on January 6 were an offense to democracy, robbing American voters of the peaceful transfer of power.
Trump’s advocates maintain the inverse: that barring the former president from being listed on the ballot destroys the democratic principle of people freely choosing their elected leaders. The Trump legal team maintains that this trial is a partisan attempt to disqualify the presumptive Republican nominee from overtaking the Democratic bid for president. One of Trump’s lawyers, former Colorado Secretary of State Scott Gessler, warned that the judge’s ruling would unjustly interfere in the 2024 presidential race.
This past week of proceedings has brought forth several present and former government officials and political scholars to testify, including California Representative Eric Swalwell and Professor Gerard Magliocca. The latter, a professor of law from the University of Indiana, testified this past Wednesday that the 14th Amendment was always meant to have a broad application concerning its insurrection clause. He testified that he believed this clause was not limited to those taking up arms, but any voluntary act which could further insurrection, including words of incitement. After the prosecution wrapped up their arguments, Trump’s legal team began their defense that same day. So far, they have called several former Trump staff to disprove the theory that the former president was attempting to incite his supporters to violence.
According to Colorado District Judge Sarah Wallace, who is presiding over the case, she intends to make her decision before Thanksgiving. She says this will allow time, in the event of an appeal, for the case to be further argued before the Colorado ballots are printed in January for the Colorado Republican primary, which is set for late March of 2024.
Given the high legal standards for incitement and calls to violence, it is difficult to predict the outcome of this case. At least one of these several disqualification trials will likely go to the Supreme Court, which would for the first time force a decision on the relationship between freedom of speech as per the 1st Amendment and the 14th Amendment’s insurrection clause. Trump’s barring from the Colorado ballot could also result in a legal chain reaction, potentially barring him from key swing states as other jurisdictions seek to employ the new precedent.