In a court hearing today, attorneys representing former President Donald Trump argued against the removal of his name from the state ballot, asserting that such an action would disenfranchise millions of Americans. Trump's defense lawyer, David Schoen, outlined various arguments, including the interpretation of the 14th Amendment and due process concerns.
Schoen contended that the 14th Amendment, which incorporates Fifth and Sixth Amendment principles, necessitates the overturning of the provision in question. He emphasized that if Trump were to be charged with insurrection under federal statute 18 U.S.C. 2383, he would be entitled to the procedural protections ensured by the Fifth and Sixth Amendments, such as the right to a jury trial and the burden of proof beyond a reasonable doubt. However, since no such charges were brought against Trump or presented to a grand jury, Schoen argued that subjecting Trump to a process lacking these safeguards was inappropriate.
The attorney further questioned the decision-making process for determining whether someone has engaged in insurrection. He questioned whether it should be left to a non-lawyer secretary of state in Maine or a judge in Colorado, emphasizing the importance of due process in terms of providing notice of charges and the mens rea, or mental state, behind those charges.
Regarding the finding by the Colorado Supreme Court that Trump committed an insurrection, Schoen expressed concern about the reliance on the January 6th committee report, which he described as a partisan committee with ethical issues. He suggested that the Supreme Court may not need to delve into the factual determination of whether Trump engaged in insurrection, as the focus should be on the due process concerns surrounding the case.
In response to a query about the argument made by Trump's team that the language of the provision prohibits holding office but not running for office, Schoen expressed surprise and doubted that Trump himself approved of that argument. He cautioned against making every possible argument available if it may have potential negative implications, suggesting it might be more appropriate for an amicus brief.
Schoen concluded by emphasizing the importance of the process issue and due process concerns for all sides to consider. He believed that it was imperative to protect voters' First and Fourteenth Amendment rights and to prevent a candidate from being barred from running based on a decision by a state. Schoen referenced a landmark 1983 ballot access case, Anderson v. Celebrezzi, asserting that states have a lesser interest in national elections due to their impact on the entire country. He expressed his view that the case should be overturned unanimously by the Supreme Court.
The court hearing concluded without a final decision being reached.
