Colorado judge weighs if Trump incited an insurrection, can run again

The case, one of many challenging Trump’s ability to serve under an 1868 provision of the Constitution, stands out because the judge overseeing it is holding an unusual week-long trial to help her make up her mind. She has heard from constitutional scholars, police officers who were assaulted on Jan. 6, an election official and Trump advisers who met with the outgoing president days before the riot.

Judge Sarah B. Wallace is expected to rule this month, as cases in other states move along briskly. On Monday, Trump filed a lawsuit in Michigan after a judge there declined to let him intervene in a case seeking to prevent him from appearing on the ballot there. On Wednesday, a federal judge threw out a challenge in New Hampshire. And on Thursday, the Minnesota Supreme Court is expected to hear arguments over his ability to run there.

All of the cases center on Section 3 of the U.S. Constitution’s 14th Amendment, which bans people from holding office if they engaged in an insurrection after swearing an oath to the Constitution. It was ratified three years after the Civil War ended to prevent Confederates from holding office.

The lawsuits argue Trump incited armed supporters to attack the Capitol to prevent Congress from certifying Joe Biden’s victory. Trump’s attorneys contended he did not inspire or participate in an insurrection, and they summoned his former advisers to the stand to testify Trump wanted 10,000 or more National Guard members in Washington on Jan. 6 to guarantee the protest was peaceful.

Kash Patel, who served as chief of staff to acting Defense Secretary Christopher C. Miller, testified Wednesday that Trump days before the Jan. 6 attack authorized 10,000 to 20,000 National Guard members to assist law enforcement. About 340 were deployed that day to assist with traffic control and other minor tasks, but more weren’t sent because local authorities did not ask for further assistance, Patel testified.

“Absent those requests, we were under the advisement of our legal office’s counsels that we could not activate the National Guard,” Patel said.

Fact Checker: No, Trump did not order 10,000 troops to secure the Capitol on Jan. 6

His comments were at odds with testimony a day earlier from Syracuse University law professor William Banks, an expert on national security and counterterrorism. Banks testified that Trump as president had broad powers to send the Washington, D.C., National Guard, FBI, Secret Service, Department of Homeland Security and other law enforcement agencies to the Capitol to help quell the violence without authorization from anyone else.

“He would need no request or permission from anyone else,” Banks said of Trump’s ability to send the Washington, D.C., National Guard.

Banks said there was nothing in the public record showing Trump had authorized thousands of National Guard troops. He noted the president commands the Washington, D.C., National Guard and said he should have deployed troops by early afternoon, as soon as he learned of the violence at the Capitol. Trump did not act for hours.

Former Trump spokeswoman Katrina Pierson said she was brought in to help with the Jan. 6 rally a few days beforehand because of infighting among the organizers. She said Trump told her at a Jan. 4 meeting that he wanted 10,000 National Guard members present to prevent problems.

“He goes, ‘Let’s just have 10,000 National Guard and then that way we won’t have any problems,’” she testified.

On cross-examination, lawyer Eric Olson displayed a copy of text messages between Pierson and Max L. Miller, who at the time was a Trump aide and last year was elected to Congress. In one message after the Trump meeting, Miller told Pierson he was “just glad we killed the National Guard and a procession.” Pierson reacted to the comment with a heart emoji.

In another message, Pierson made light of the attack on the Capitol less than 24 hours after it happened by sending Miller a photo of a rioter hauling the lectern for then-House Speaker Nancy Pelosi (D-Calif.) through a hallway. “You have to admit that seeing Nancy Pelosi’s lectern being carried away by [a] Trump supporter is pretty damn funny,” she wrote.

Asked on the stand about the message Wednesday, Pierson said, “Yes, it was hysterical.”

Those bringing the lawsuit have dedicated part of the week to arguing Jan. 6 qualified as an insurrection. Gerard Magliocca, an Indiana University law professor who has studied the 14th Amendment, cited an 1828 dictionary to show that insurrection was defined at the time as “rising against civil or political authority” and “the open and active opposition of a number of persons to the execution of law in a city or state.”

Members of Congress in the 1860s did not believe one had to take up arms to participate in an insurrection, and that speech alone could qualify one as an insurrectionist, he said. Magliocca noted Congress declined to seat one member because he had written a letter to the editor in support of the Confederacy and another because he had given $100 to his son before he joined the Confederacy.

In the first days of the hearing, those bringing the lawsuit have played well-known clips of Trump, including ones where he told the far-right Proud Boys to “stand back and stand by,” urged supporters on Jan. 6 to “fight like hell” and claimed there were “very fine people on both sides” at a 2017 rally that featured White supremacists and counter protesters.

Peter Simi, an associate professor of sociology at Chapman University who has studied political extremism, testified that Trump’s far-right supporters viewed Trump’s Jan. 6 speech as a call to violence because he repeatedly said they needed to “fight” and were at risk of losing their country.

During that speech, Trump also said they should “peacefully and patriotically” protest. Simi said extremists put little stock in that comment, in part because Trump put far more attention on fighting than acting peacefully.

“In far-right extremist culture, ‘fighting’ is to be taken literally,” he said.

Trump attorney Scott Gessler downplayed Trump’s use of the word “fight,” noting the phrase is commonly used by politicians. He played a montage of Pelosi, Vice President Harris and other high-profile Democrats telling their supporters to fight. He asked the judge to dismiss the case on First Amendment grounds, saying Trump didn’t incite the crowd. The judge declined the request and is scheduled to hear testimony and arguments through Friday.

On Thursday, the Minnesota Supreme Court is expected to hear arguments in a similar case. That case will begin in the state’s high court but could be sent to a lower-court judge to develop a fuller record before the justices reach a final decision.

In another case, a federal judge on Wednesday threw out a challenge to Trump’s candidacy in New Hampshire brought by John Anthony Castro, a self-described long-shot Republican candidate for president who is bringing a slew of lawsuits trying to bounce Trump from the ballot state by state.

Judge Joseph N. Laplante dismissed the New Hampshire case, writing that Castro didn’t have the authority to bring the lawsuit because he wasn’t actively campaigning for president and “has not provided any evidence suggesting that he has voters or contributors in New Hampshire or anywhere else.” What’s more, the judge ruled Congress and presidential electors — not courts — are the ones to determine whether candidates are eligible to serve as president.

The cases across the country are moving relatively quickly because states will begin holding caucuses and primaries in January. If any state knocks Trump off the ballot, the U.S. Supreme Court is expected to weigh in and resolve the issue for all states.