U.S. Rep Eric Swalwell, D-Calif, remotely testifies as judge Sarah B Wallace presides over a hearing for a lawsuit to keep former President Donald Trump off the state ballot in court Monday, Oct. 30, 2023, in Denver. (AP Photo/Jack Dempsey)
A weeklong trial in a challenge to former President Donald Trump’s constitutional eligibility to seek office again began in a Denver courtroom on Monday with a focus on the events of Jan. 6, 2021, when a pro-Trump mob stormed the U.S. Capitol and interrupted the certification of election results.
Six Colorado voters have alleged in a lawsuit that Trump’s role in “summoning” and “inciting” that mob make him ineligible to hold office under Section 3 of the 14th Amendment. The Civil War-era clause prohibits anyone who took an oath to uphold the Constitution and then “engaged in insurrection” from holding office in the United States.
In an opening statement, attorneys for the plaintiffs, including representatives of the nonprofit Citizens for Responsibility and Ethics in Washington, said their four-point case was simple: Trump took an oath to support the Constitution; the Jan. 6 attack was an insurrection; Trump engaged in that insurrection; and Colorado election officials can and must bar ineligible candidates from the ballot.
Trump’s attorneys did little to dispute the first and fourth points of that argument on Monday, but they objected to the characterization of the Capitol attack as an “insurrection” and especially to the claim that Trump “engaged” in such an insurrection. Outside the courtroom, a spokesperson for Trump’s 2024 presidential campaign described the lawsuit as “election interference” by “far-left wacko groups.”
The six plaintiffs in the lawsuit include former Republican U.S. representative from Rhode Island Claudine Schneider, who now lives in Colorado; former GOP state legislator Norma Anderson, who is now unaffiliated; and Republican commentator Krista Kafer.
Plaintiffs’ attorneys called as witnesses a member of Congress and two police officers who were assaulted by the mob as it stormed the Capitol. They showed the court extended, graphic video footage of the assault, and of Trump’s remarks in a speech earlier that day near the White House, in a presentation that echoed the substance of the allegations made in a report published last year by a select U.S. House committee convened to investigate the attack.
“This was an insurrection that Trump led,” said Eric Olson, an attorney for the plaintiffs and a former Colorado solicitor general. “He ignited the mob, told them to go to the Capitol, and inflamed them with his tweets.”
But Trump attorney Scott Gessler, a former Colorado secretary of state, faulted the complaint’s extensive reliance on the findings of the congressional Jan. 6 committee, which he characterized as the product of a flawed process.
“They’re asking the court to endorse that one-sided, poisonous report,” Gessler said. “That report is a political document, first and foremost. This, however, is a court of law.”
The House’s nine-member Jan. 6 committee included two Republicans, former Reps. Adam Kinzinger of Illinois and Liz Cheney of Wyoming. GOP opposition in the U.S. Senate prevented the formation of a broader joint commission to investigate the attacks, and House Republicans boycotted the committee after Democrats refused to seat selected members who had voted against the certification of 2020 election results.
Gessler himself spread unfounded conspiracy theories alleging widespread fraud in the 2020 election. In an unsuccessful bid for Colorado Republican Party chair in 2021, he claimed that there was a “very high likelihood the election was stolen from Trump in Nevada” and that there were “huge problems nationally” with election integrity. Claims that the results of the 2020 election were fraudulent have been repeatedly debunked by elections officials, experts, media investigations, law enforcement and the courts.
Ahead of the trial, Trump’s legal team filed a motion on Saturday asking that the state court judge hearing the case, Judge Sarah B. Wallace, recuse herself from proceedings.
Wallace acknowledged at the start of Monday’s hearing that in October 2022, she made a $100 donation through the liberal-leaning online fundraising platform ActBlue, earmarked for the Colorado Turnout Project, a small PAC formed in 2021 to oppose Republican candidates who “refused to condemn the political extremists” involved in the Jan. 6 attack on the Capitol, with a particular focus on defeating GOP Rep. Lauren Boebert of Silt.
Jason Miller, a longtime Trump adviser, told reporters Monday that Wallace’s donation to a “lefty group” undermines her ability to conduct a fair trial.
“This is election interference,” Miller said shortly before the trial began. “The Democrats, Joe Biden and CREW, they know exactly what they’re doing.”
Wallace was appointed by Democratic Gov. Jared Polis to her seat on the 2nd Judicial District Court in August 2022, and took office in January of this year. She denied the motion to recuse, saying she didn’t recall the specific donation to the Colorado Turnout Project, and that it had “always been my practice” to make political contributions to individual candidates, rather than to PACs.
“I have formed no opinion whether the events of Jan. 6 constituted an insurrection or whether intervenor Trump engaged in an insurrection,” Wallace said. “If I did, I would recuse myself. But because I don’t, I deny the motion.”
The direct testimony phase of the trial began Monday with several eyewitnesses to the events of Jan. 6, including Metropolitan Police Department of the District of Columbia officer Daniel Hodges and Rep. Eric Swalwell, a California Democrat.
Hodges is the officer seen in a widely shared video shouting in pain as he was crushed in a door frame by the advancing pro-Trump mob. He testified that while stationed on Constitution Avenue near the Capitol in the hours before the attack, he saw large numbers of people advancing on the building from the direction of the White House Ellipse, where the president had repeatedly urged his supporters to “fight” to stop the certification of Joe Biden’s Electoral College victory.
In cross-examination by Trump’s attorneys, Hodges acknowledged that he could not say with certainty whether any individual member of the crowd who assaulted the Capitol had been present for Trump’s speech.
Swalwell choked up at times as he recounted his experiences on the House floor during the attack. He described being alerted to the gas masks stored under lawmakers’ desks, listening to a chaplain’s prayer and texting his wife as he began to fear for his safety before he and his colleagues were evacuated from the chamber.
“We could hear the pounding on those doors and the shouting of the rioters outside,” Swalwell said. “It was haunting.”
Later on Monday, plaintiffs’ attorneys submitted a series of exhibits relating to the attack, including videos, still photographs and findings by the Jan. 6 committee. Wallace accepted the exhibits into evidence over repeated objections from Gessler, who said the videos released by the Jan. 6 commission were “highly produced.”
“It’s a good movie production,” he said. “But it shouldn’t be admitted as evidence.”
In support of the plaintiffs’ claim that Trump engaged in insurrection, attorney Sean Grimsley also presented excerpts of speeches and dozens of social media posts by the former president in the weeks leading up to Jan. 6. The evidence included more than 10 minutes of footage from Trump’s speech at the Ellipse.
But Wallace sustained an objection by Trump’s attorneys to the admission of video excerpts showing close Trump allies Rudy Giuliani and John Eastman speaking to a pro-Trump crowd at the Ellipse shortly before the Capitol attack. In their speeches, Giuliani, a former New York City mayor and GOP presidential hopeful, urged “trial by combat,” while Eastman, a law professor and former visiting faculty member at the University of Colorado Boulder, reiterated a debunked legal theory holding that then-Vice President Mike Pence had unilateral power to block the election certification process taking place that day at the Capitol.
“’It’s incredibly important context to understand what President Trump was saying,” Grimsley said.
“There’s been plenty of evidence that President Trump was telling people that Vice President Pence had the ability to do something,” said Wallace in rejecting the evidence.
An ‘extraordinary’ case
Trump announced his 2024 campaign shortly after the 2022 midterm elections, and has maintained a strong polling lead over a crowded field of Republican primary contenders.
His campaign submitted an application to appear on the Colorado primary ballot to Democratic Secretary of State Jena Griswold’s office on Oct. 11. Griswold is an outspoken critic of Trump who has said the former president did “incite an insurrection and attack our democracy,” but has not yet taken a clear position on the 14th Amendment challenge.
“In light of the claims brought in this proceeding, the Secretary intends to hold Mr. Trump’s application pending further direction from the Court,” Attorney General Phil Weiser, a Democrat, wrote in a notice to Wallace the same day.
Grant Sullivan, an attorney representing Griswold, said in a brief opening statement Monday that the secretary of state does not plan to present evidence in the trial, though a deputy director of the state elections division will be called as a witness by the plaintiffs.
Sullivan said that while the specifics of the complaint against Trump’s candidacy are “extraordinary,” the case is “in many ways a very typical proceeding under the Colorado Election Code.” He pointed to three similar challenges to candidate eligibility filed in Denver District Court in recent years, in which the secretary of state was named as a defendant but did not present evidence in support of either party.
“The Secretary believes that Donald Trump bears significant responsibility for the attack on the Capitol on Jan. 6,” Sullivan said. “But she welcomes the court’s direction on whether his actions rise to such a level as to disqualify him from the presidential primary ballot in Colorado.”
Editor’s note: This story was updated at 4:49 p.m., Oct. 30, 2023, to include new details from proceedings in Monday’s trial.
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