Trump argues First Amendment protects him from ‘insurrection’ cases aimed at keeping him off ballot

“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 lawyer Geoffrey Blue.

03:33

Donald Trump, 18 others indicted in Georgia for alleged bid to overturn state election results

Donald Trump, 18 others indicted in Georgia for alleged bid to overturn state election results

Trump will also argue that the clause does not apply to him because “the Fourteenth Amendment applies to one who ‘engaged in insurrection or rebellion,’ not one who only ‘instigated’ any action,” Blue wrote.

The former president’s lawyers also said the challenge should be dismissed because he is not yet a candidate under the meaning of Colorado election law, which they contend isn’t intended to settle constitutional disputes.

The motion under Colorado’s anti-SLAPP law, which shields people from lawsuits that harass them for behaviour protected by the First Amendment, will be the first of the 14th Amendment challenges filed in multiple states to be considered in open court. It was filed late on Friday and posted by the court on Monday.

Denver District Judge Sarah B Wallace has scheduled a hearing on the motion for October 13. A hearing on the constitutional issues will come on October 30.

Trump leads Biden by 10 points in new poll of 2024 presidential race

Whatever Wallace rules, the issue is likely to reach the US Supreme Court, which has never heard a case on the provision of the 14th Amendment, which was ratified in 1868, three years after the Civil War ended. The clause has only been used a handful of times.

Section Three of the amendment bars from office anyone who once took an oath to uphold the Constitution but then “engaged” in “insurrection or rebellion” against it. Its initial intent was to prevent former Confederate officials from becoming members of Congress and taking over the government.

Trump’s contention that he is protected by freedom of speech mirrors his defence in criminal cases charging him for his role in the January 6 attack. There, too, he argues he was simply trying to bring attention to what he believed was an improper election – even though dozens of lawsuits challenging the results had already been rejected.

Trump urges government shutdown to ‘defund’ his criminal prosecutions

Prosecutors in those cases and some legal experts have noted that Trump’s offences go beyond speech, to acts such as trying to organise slates of fake electors that Congress could have recognised to make him president again.

The criminal cases have already bled into the 14th Amendment challenge in Colorado. On Friday, Wallace issued an order barring threats and intimidation in the case after the plaintiffs noted that Trump has targeted lawyers and witnesses in the criminal proceedings against him.