Former President Donald Trump’s attorneys argue that an attempt to bar him from the 2024 ballot under a rarely invoked “insurrection” clause of the Constitution violates his right to free speech.
The suit was filed on behalf of six electors by the liberal group Citizens for Responsibility and Ethics in Washington against the Colorado Secretary of State and former President Donald Trump, who is seeking to run for president again in 2024.
The lawyers made this argument in a filing posted by a Colorado court on Sept. 25, in response to the most significant of a series of challenges to President Trump’s candidacy under a clause dating back to the Civil War. Trump’s efforts to overturn his 2020 loss to President Joe Biden and his role in the events of Jan. 6, pose potential obstacles.
“At no time do Petitioners argue that President Trump did anything other than engage in either speaking or refusing to speak for their argument that he engaged in the purported insurrection,” wrote (pdf) attorney Geoffrey Blue, defending the former president.
President Trump’s attorney also argued that the clause doesn’t apply to him because “the Fourteenth Amendment applies to one who ‘engaged in insurrection or rebellion,’ not one who only ‘instigated’ any action.”
According to the former president’s attorneys, the challenge should be thrown out because he is not yet a candidate under Colorado election law, which is not intended to resolve constitutional disputes.
The motion under Colorado’s anti-SLAPP law, which protects individuals from lawsuits that harass them for First Amendment-protected speech, will be the first 14th Amendment challenge filed in multiple states to be heard in open court. It was lodged late on Friday, and the court posted it on Monday.
Sarah B. Wallace, district judge in Denver, has scheduled a hearing on the motion for October 13. The constitutional issues will be heard on October 30.
Section Three of the amendment disqualifies from office anyone who previously swore to uphold the Constitution and then “engaged” in “insurrection or rebellion” against it. Its original purpose was to prevent former Confederate officials from joining Congress and seizing control of the government.
President Trump’s claim that he is protected by the First Amendment parallels his defense in criminal cases charging him with involvement in the Jan. 6 attack. Similarly, he claims he was merely attempting to draw attention to what he believed to be an improper election despite the fact that dozens of petitions challenging the election results had already been dismissed.
In the initial suit, the group argued that, “Due to his disqualification under Section 3, Trump is constitutionally ineligible to assume the Office of the President.
They also argue that the secretary has not committed to doing so, and “based on historical practice” doesn’t seem likely to, and ask a judge to declare her actions to allow President Trump on the ballot “a breach or neglect of duty or other wrongful act.”
Judge Robin Rosenberg of Florida, who was appointed by Democratic President Barack Obama, recently dismissed a similar case on the grounds that she lacked jurisdiction.
“An individual citizen does not have standing to challenge whether another individual is qualified to hold public office,” she wrote.
The former president, who is being represented by the American Center for Law and Justice (ACLJ) in the Colorado case, is also fending off two similar lawsuits in Oklahoma (pdf), Texas, and West Virginia.
The ACLJ also represents the Oklahoma Republican Party as it fights for ballot access in Oklahoma, saying, “We are filing a motion to intervene (pdf) in federal court so the Oklahoma Republican Party can be heard in this case.”
The Associated Press contributed to this report.