DENVER — At a historic hearing Monday, attorneys for a group of voters argued that former president Donald Trump should not appear on Colorado ballots next year because, they contend, he fomented an insurrection and is barred by the U.S. Constitution from running again. Trump’s attorneys disputed those claims and said voters — not judges — should decide whether he deserves another term.
The first day of the hearing, which is expected to last a week, featured an exhaustive retelling of what happened at the U.S. Capitol on Jan. 6, 2021, by a Democratic lawmaker who had to evacuate and two police officers who tried to stop the rioters. Both officers said they feared for their lives, and one described the assault on the Capitol as a “terrorist attack.”
The case is part of an interlocking set of legal challenges across the country seeking to remove Trump from the ballot under a section of the Constitution’s 14th Amendment that was meant to ensure supporters of the Confederacy did not gain office after the Civil War. The efforts have divided legal scholars on whether the provision can be invoked against Trump, but most acknowledge that these challenges are unlikely to succeed.
“This was an insurrection that Trump led,” attorney Eric Olson said in his opening statement. “As we’ve seen, he summoned and organized the mob. He gave the mob a common purpose — to disrupt [Vice President] Mike Pence’s certification of the election.”
Olson, a former state solicitor general, noted Trump used the word “fight” 20 times in a speech to supporters ahead of the riot. When his backers got to the Capitol grounds, Trump deployed his Twitter account to further rile them up, Olson said. Trump assisted them by holding off on sending help to put down the riot, he argued.
Trump attorney Scott Gessler in his opening statement rejected the idea that Trump engaged in an insurrection, noting that in the same speech, Trump told his supporters to behave peacefully.
“Frankly, President Trump didn’t engage,” Gessler said. “He didn’t carry a pitchfork to the Capitol grounds. He didn’t lead a charge. He didn’t get into a fistfight with legislators. He didn’t goad President Biden into going out back and having a fight. He gave a speech in which he asked people to peacefully and patriotically go to the Capitol to protest.”
Kicking Trump off the ballot would be anti-democratic, he said. Gessler, a former Colorado secretary of state, told the judge to employ “the rule of democracy” by letting Trump’s name appear on the ballot and having voters decide whether he should get to serve as president again.
First on the stand was Daniel Hodges, a D.C. police officer. An attorney played footage of chaotic scenes from Hodges’s body camera that included people attempting to yank his riot baton away from him and crowd members accusing him of betraying his duties by trying to keep them out of the Capitol. After each clip, Hodges detailed what had happened to him, saying that in one scuffle, a man grabbed his face and used his thumb to try to gouge his eye out.
In other footage, Hodges and other officers tried to hold back a throng of people that was forcing its way through a Capitol tunnel. With the help of shields they had taken from officers, rioters pinned Hodges against a door frame, and someone ripped his gas mask off. The crowd heaved forward, crushing Hodges against the door as he howled in pain.
“I can’t remember all the different ways in which I was assaulted,” Hodges said on the stand.
“I was afraid,” he said. “I was afraid for my life and for that of my colleagues. I was afraid for the people in the United States Capitol building. I was afraid for Congress, the vice president, and what these people would do to them and how it would affect our democracy.”
Also on the stand was Winston Pingeon, who testified that he spent hours in the Capitol in “hand-to-hand combat” with rioters as a Capitol Police officer. At one point, the crowd knocked him to the ground and took his baton, and he feared someone might gain access to his firearm. Pingeon said he has post-traumatic stress disorder and left the police agency nine months after the riot.
Rep. Eric Swalwell (D-Calif.) testified about the fear he and his colleagues felt when they were evacuated from the House floor as the mob advanced toward them. He and his fellow members of Congress watched Trump’s Twitter feed with alarm when he castigated Pence, inflaming his supporters advancing toward the Capitol.
“We interpreted it as a target had been painted on the Capitol,” Swalwell said.
Two former Trump officials who were slated to testify for those bringing the lawsuit backed out at the last minute, attorneys told the judge Monday. Olivia Troye, a former homeland security adviser to Pence, said in an interview that she determined her testimony was not needed given who else was testifying.
Ratified in 1868, the 14th Amendment granted citizenship to people born or naturalized in the United States and guaranteed civil rights and the protection of the law to all Americans, including those who were formerly enslaved. In addition, its lesser-known Section 3 barred people from holding office if they had sworn an oath to the Constitution and then gone on to engage in an insurrection or aided or comforted the nation’s enemies.
Trump has dismissed the cases as a form of “election interference,” and one of his top spokespeople, Jason Miller, was at the courthouse Monday to make the same point.
“This is about trying to make the Trump campaign and President Trump spend money to try to distract away from beating Joe Biden in all of the swing states and now even the blue states,” Miller told reporters.
The voters brought their lawsuit against Colorado Secretary of State Jena Griswold (D), who as the state’s top elections official is responsible for determining whose names appear on the ballots. Griswold has said that she believes Trump engaged in an insurrection but wants the judge to decide whether Trump’s name should be on the ballot. Trump and the state Republican Party have intervened in the case.
The plaintiffs brought their lawsuit with the assistance of the Citizens for Responsibility and Ethics in Washington, a watchdog group that succeeded in getting a New Mexico county commissioner removed from office last year because of his activities on Jan. 6.
Similar lawsuits are being filed around the country, and courts will have to determine in the coming months whether Trump’s name can appear on ballots as Republicans hold their primaries. The Minnesota Supreme Court is slated to hear arguments on Thursday over whether Trump can appear on the ballot in that state.
The focus Monday was on Jan. 6, but later in the week, Judge Sarah B. Wallace will hear from experts on several issues, including how often the secretary of state keeps candidates off the ballot, what happens if the country elects someone who is not qualified to be president and whether Trump’s actions on Jan. 6 qualified as engaging in an insurrection.
Over the weekend, Trump asked Wallace to step down from the case because she gave $100 last year to a group that was formed after the Jan. 6 attack to vote Republicans out of office and “prevent violent insurrections.” Trump’s attorney argued that Wallace has shown bias toward the idea that Jan. 6 was an insurrection by giving money to the group, the Colorado Turnout Project.
The judge began Monday’s hearing by saying she would not step aside. Wallace said that she does not recall making the donation and that she was unfamiliar with the group and its mission until she received the motion.
“I have formed no opinion whether the events of Jan. 6 constituted an insurrection,” she said, “or whether intervenor Trump engaged in an insurrection.”
Yvonne Wingett Sanchez contributed to this report.