Colorado Supreme Court oral arguments on Trump 14th Amendment case

By Dan Berman

Updated 0227 GMT (1027 HKT) December 7, 2023
18 Posts
Sort byDropdown arrow
7:16 p.m. ET, December 6, 2023

Here's a recap of today's Colorado Supreme Court hearing on whether the "insurrectionist ban" applies to Trump

From CNN's Marshall Cohen

The Colorado Supreme Court heard arguments Wednesday in a closely watched case about whether the US Constitution’s ban on insurrectionists holding public office applies to former President Donald Trump because of the January 6, 2021, US Capitol riot.

The seven-member court appeared divided at times, pushing back on arguments from both Trump and the challengers who want to remove him from Colorado’s presidential ballot in 2024. The justices didn’t say when they will issue their decision, which is expected to be appealed to the US Supreme Court, no matter which way they rule.

With support from bipartisan legal scholars, liberal groups filed lawsuits across the country to enforce the 14th Amendment’s insurrectionist ban. A new suit was filed Wednesday in Oregon during the Colorado hearing. But so far, these cases have fallen flat, keeping Trump on the ballot in Minnesota, Arizona, Michigan and elsewhere.

The Colorado justices grappled with a key question: Does the ban apply to presidents?

They are reviewing a ruling from Colorado District Judge Sarah Wallace, who presided over a bench trial last month, and concluded that Trump “engaged in an insurrection” on January 6, 2021. However, she also ruled that the 14th Amendment’s disqualification clause doesn’t apply to Trump because the provision doesn’t mention the presidency.

“If it was so important that the president be included, I come back to the question, why not spell it out?” Justice Carlos Samour asked a lawyer for the challengers. “Why not include president and vice president? … They spelled out senator or representative.”

Two other justices pointed out that other provisions of the Constitution don’t appear to include the president when they refer to federal officers, pushing back on a key pillar of the challengers’ case. The challengers claimed the disqualification clause covers the presidency because it bans insurrectionists from “any office … under the United States.”

But later, when questioning Trump lawyer Scott Gessler, some justices said it wouldn’t make sense for there to be a loophole allowing insurrectionists to become president.

“I saw no rational reason for that type of an exclusion,” Justice Monica Marquez said.

Several of the justices also hammered Gessler over his contention that January 6 was only a riot and wasn’t an insurrection. The 14th Amendment doesn’t define insurrection, and the justices are now reviewing the trial judge’s decision that January 6 fit the bill.

Read more about today's ruling here.

7:03 p.m. ET, December 6, 2023

January 6 was "more like a riot" — not an insurrection, Trump lawyer says

From CNN's Marshall Cohen

Attorney Scott Gessler speaks during a hearing in Denver District Court on November 2.
Attorney Scott Gessler speaks during a hearing in Denver District Court on November 2. David Zalubowski/Pool/AP

Trump lawyer Scott Gessler said “the violence on the Capitol was not acceptable,” but argued that January 6, 2021, didn’t rise to the level of an insurrection as contemplated by the 14th Amendment.

“The events of January were more like a riot, and far less than a rebellion, and insurrection is far closer to rebellion than riot,” Gessler said.

A violent event that only lasts for several hours and is restricted to just one building – a reference to the attack on the US Capitol on January 6 — is not an insurrection, Gessler argued.

“The use of force did not involve arms, certainly not the level of arms necessary to overcome” the police, Gessler said.

That comment drew a rebuke from Justice William Hood, who said, “there were a lot of makeshift weapons that did a lot of damage,” and pointed out that approximately 170 police officers were injured.

Debating the definition of an “insurrection” is important because the 14th Amendment says officeholders who “engaged in insurrection” are disqualified from public service – but the provision doesn’t define insurrection.

4:52 p.m. ET, December 6, 2023

Smart to settle Trump eligibility question before, not after, 2024 election, justice says

From CNN's Marshall Cohen

In this 2014 photo, Colorado Supreme Court Justice William W. Hood zips up his new judicial robe in Denver.
In this 2014 photo, Colorado Supreme Court Justice William W. Hood zips up his new judicial robe in Denver. Brennan Linsley/AP

One of the Colorado justices suggested that it might be smart to settle the question of former President Donald Trump’s eligibility under the 14th Amendment sooner rather than later.

The 14th Amendment’s insurrectionist ban has only been applied twice outside of the context of the Civil War, and has never been implicated in a presidential race. There is not a legal consensus on whether the right time to challenge Trump’s eligibility is before the GOP primaries that begin in January 2024, before the general election in November 2024, or before his potential inauguration in 2025.

“One of the counter-arguments is that by failing to resolve this issue on the merits now, we create the potential for chaos in January of 2025,” Justice William Hood told Trump lawyer Scott Gessler.

Hood also said he didn’t agree with Gessler’s argument that kicking Trump off one state’s ballot would lead to “chaos” across the country. Hood pointed out that if the Colorado Supreme Court reverses the lower-court ruling, and removes Trump from the state’s primary ballot, the US Supreme Court will likely take up the case and make a decision that settles the issue for the entire country.

4:51 p.m. ET, December 6, 2023

Justice asks whether state law could be used to challenge a hypothetical third White House bid by Obama

From CNN's Devan Cole

This 2010 photo shows Colorado Supreme Court Justice Monica Marquez in Denver.
This 2010 photo shows Colorado Supreme Court Justice Monica Marquez in Denver. Jack Dempsey/AP

Justice Monica Marquez at one point asked an attorney representing former President Donald Trump whether someone could, in theory, challenge a hypothetical third presidential run by Barack Obama, despite the Constitution's prohibition against winning more than two terms.

"So let's say President Obama wants to be on the Democratic Party primary ticket. (He) checks all the boxes … tenders the statement of intent. Can an elector challenge his qualification under (state law)? And if not, why not?” Marquez asked.

“I would say no,” Trump attorney Scott Gessler replied. “First of all, from a broader constitutional preemption, just disability question, Article II doesn't quite face the same self-execution issues."

He continued: “The courts are split, but the weight of authority … with respect to President Obama, Sen. (Ted) Cruz and Sen. (John) McCain, all of whom were challenged on natural-born citizenship, the weight of authority is that states do not have the authority to be able to consider that.”

4:40 p.m. ET, December 6, 2023

Justice Samour says he's concerned about a broad definition of "insurrection"

From CNN's Marshall Cohen

In this May 2018 photo, Justice Carlos A. Samour, Jr., waits to speak after his appointment to fill a soon-to-be vacant seat on Colorado's Supreme Court in Denver.
In this May 2018 photo, Justice Carlos A. Samour, Jr., waits to speak after his appointment to fill a soon-to-be vacant seat on Colorado's Supreme Court in Denver. David Zalubowski/AP/File

In another potentially promising sign for former President Donald Trump, one of the Colorado justices signaled that he thinks the trial court defined “insurrection” too broadly.

Trump argued that the trial judge got it wrong and improperly labeled January 6, 2021, as an "insurrection" – and asked the state supreme court to overturn that finding.

Here is what District Judge Sarah Wallace concluded about the definition of insurrection: “An insurrection as used in Section Three of the Fourteenth Amendment is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.”

Justice Carlos Samour said Wednesday, “I’m expressing a concern about the definition of insurrection that the district court adopted. It strikes me as somewhat or potentially overbroad.”

An attorney for the challengers, Eric Olson, argued that Wallace had the right definition. In response to Samour’s questions, Olson emphasized that private threats from individuals wouldn’t rise to the level of an insurrection – but that January 6 was a very public incident with hopes of undermining the national democracy.

4:05 p.m. ET, December 6, 2023

Some justices focus on vagueness of 14th Amendment in what would be good news for Trump

From CNN's Marshall Cohen

Several of the Colorado justices posed tough questions to the anti-Trump challengers and zeroed in on the vagueness in the 14th Amendment, which doesn’t explicitly prohibit insurrectionists from serving as president, even though it specifies that insurrectionists can’t be senators or state officials. 

“If it was so important that the president be included, I come back to the question, why not spell it out?” Justice Carlos Samour asked. “Why not include president and vice president the way you spell out? They spelled out senator or representative.” 

Justice Melissa Hart said, “nowhere in any of the references to officer, does the Constitution list the president.” 

Justice Monica Marquez pointed to other provisions of the Constitution that refer to “officers” without including the presidency. 

These comments suggest that a fair number of the justices may be inclined to uphold the lower court’s ruling, that the insurrectionist ban doesn’t apply to the presidency and therefore can’t be used to disqualify former President Donald Trump from the 2024 race. 

The lower court ruled on narrow grounds that Trump should remain on Colorado’s ballot because the ban apparently doesn’t apply to presidents. The provision says, “no person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State,” if they took an oath to “support” the Constitution and then engaged in insurrection. But it doesn’t say anything specific about the presidency. 

3:51 p.m. ET, December 6, 2023

"A rebel who took up arms against the government couldn't be a county sheriff, but could be the president"

From CNN's Devan Cole

Jason Murray, an attorney representing the anti-Trump challengers in Colorado, argued that the drafters of the Fourteenth Amendment’s “insurrectionist ban” wouldn’t have intended for the prohibition to apply to a position as low as county sheriff while also excluding the US presidency.

“I think that if there were some intents to exclude the presidency from Section 3, given how important that would be, I mean, think about that: You'd be saying that a rebel who took up arms against the government couldn't be a county sheriff, but could be the president," Murray said.

“That would be a really big thing," he added. "And you’d think we would see some indication in the history of somebody coming back and saying, ‘No, we're carving this out because it's somehow different,’ and there's just no indication of that at all."

 

3:55 p.m. ET, December 6, 2023

Another 14th Amendment challenge pops up in Oregon

From CNN's Marshall Cohen

A group not involved in the Colorado case said Wednesday that it filed a 14th Amendment lawsuit to block Donald Trump from the ballot in Oregon.

That group – Free Speech For People – previously filed lawsuits in Minnesota and Michigan. Neither of those prevailed in disqualifying Trump, though an appeal is underway in Michigan.

“The United States Constitution makes Donald Trump ineligible to run for or serve in any public office in the country, let alone President,” said attorney Jason Kafoury, who represents a group of Oregon voters who filed the lawsuit. “All Oregon voters, including the plaintiffs, have a well-established right to have only eligible candidates on the ballot."

4:12 p.m. ET, December 6, 2023

Anti-Trump challengers: Insurrectionist ban is "self-defense mechanism" against threats to democracy

From CNN's Marshall Cohen

In this November 1 photo, attorney Jason Murray examines a witness during a hearing for a lawsuit to keep former President Donald Trump off the state ballot in Denver.
In this November 1 photo, attorney Jason Murray examines a witness during a hearing for a lawsuit to keep former President Donald Trump off the state ballot in Denver. Jack Dempsey/Pool/AP

Jason Murray, an attorney for the anti-Trump challengers in Colorado, argued at the state Supreme Court that the 14th Amendment’s insurrectionist ban was intended to protect the US from threats to democracy like the one posed by Donald Trump. 

“Section 3 of the 14th Amendment is our Constitution's self-defense mechanism,” Murray said. “It stands for the idea that those who took an oath to support the Constitution and then betrayed that sacred duty by engaging in insurrection against it cannot again be entrusted with public office."

The lower-court ruling, which said Trump engaged in the January 6 insurrection but the ban doesn’t apply to presidents, “was contrary to Section 3’s core purpose,” Murray said.

“Who could more easily subvert our democracy from within than a commander in chief, who has already tried to do so before?” he told the justices.