Weeklong Trump trial on eligibility for ballot under insurrection clause winds down in Colorado

November 3, 2023, 8:09 am
Robert Delahunty testifies on the final day during a hearing for a lawsuit to keep former President Donald Trump off the state ballot in court Friday, Nov. 3, 2023, in Denver. (AP Photo/Jack Dempsey, Pool)

The final day of a weeklong trial in a challenge to former President Donald Trump’s constitutional eligibility to seek office again began with a protracted dispute over how much expertise an expert witness called by Trump’s legal team really had.

Robert Delahunty, a retired law professor and legal commentator who acknowledged he’d never before given expert testimony on any subject in court, took the stand Friday morning in a case brought by six Colorado voters who allege that Trump must be barred from the 2024 presidential ballot by Section 3 of the 14th Amendment. The Civil War-era clause prohibits anyone who took an oath to uphold the Constitution and then “engaged in insurrection” from holding office in the United States. Plaintiffs argue Trump “engaged” in insurrection as part of the Jan. 6 attack.

Trump’s attorneys called on Delahunty, they told Denver District Court Judge Sarah B. Wallace, as a witness with expertise in “interpreting legal historical documents,” and to rebut testimony earlier in the week from Indiana University law professor Gerard Magliocca, an expert on 19th-century constitutional history who has written multiple law review articles on Section 3’s application.

Friday’s trial proceedings began with several hours of direct testimony from Delahunty, whose loquacious answers had to be interrupted repeatedly by Wallace and Trump attorney Scott Gessler. Wallace overruled strong objections from plaintiffs’ attorneys to the admission of Delahunty as an expert witness on the subject of the 14th Amendment’s insurrection clause, which Trump’s team justified on the basis of Delahunty’s 16 years of teaching constitutional law at the University of St. Thomas School of Law.

“Teaching a first-year law school course does not mean that he’s made scholarly contributions” to research on the history and interpretation of Section 3, said Jason Murray, an attorney for the plaintiffs.

“Professor Delahunty has expertise in reviewing historical documents and applying them to constitutional provisions,” Wallace said in denying a motion to exclude the testimony. “His lack of scholarly contribution to Section 3 in particular, I don’t think excludes him from testifying on the opinions that he’s testifying to today.”

In his testimony on Wednesday, Magliocca cited multiple definitions of “engaging in insurrection” that were detailed in legal opinions from the 1860s, including any “overt and voluntary act, done with the intent of aiding or furthering” an insurrection, as well as an act “by speech or by writing (that) incited others to engage in rebellion.”

But Delahunty, while conceding that some of those opinions were “certainly good evidence” for the plaintiffs’ interpretation, said his interpretation of the historical record differed from Magliocca’s.

“I think ‘engage in insurrection’ has a more restricted meaning than he supposes,” Delahunty said.

An ‘officer of the United States’?

Under cross-examination by plaintiffs’ attorneys, Delahunty acknowledged that the 14th Amendment had never been the primary focus of his scholarship, and that in preparing his report on the subject for the court, he had not done any original research to consult primary sources from the time period in which the amendment was ratified.

While serving as a lawyer for United States Homeland Security Council in 2002, Delahunty was a co-author with attorney John Yoo of the so-called “torture memos,” legal opinions advising that detainees in the War on Terror were not entitled to protections under the Geneva Conventions. He is currently a fellow at the Claremont Institute, which has been described as an “anti-democracy think tank” and a “nerve center for the American right” under Trump.

Among the many prominent Trump allies affiliated with the Claremont Institute is attorney John Eastman, a key architect of the former president’s scheme to block congressional certification of the results of the 2020 election on Jan. 6, 2021. Eastman has been indicted alongside Trump for an alleged conspiracy to overturn the election by prosecutors in Fulton County, Georgia.

In addition to disputing the definition of “engaging in insurrection,” Delahunty also appeared to an endorse an argument made by Trump supporters that Section 3’s reference to “officers of the United States” does not include the president.

“What’s your opinion on Professor Magliocca’s conclusion that the phrase ‘officer of the United States,’ as used in Section 3, includes the president and vice president of the United States?” Gessler asked.

“I disagree with that conclusion,” Delahunty answered. “I looked into that question more, and I was persuaded that he was really wrong. I think that term is, in essence, a term of art and had a specialized meaning.”

But under questioning from Murray, Delahunty maintained that he “took no position” on the question, which he called “disputed among scholars.”

Murray pointed to a commentary written by Delahunty for The Federalist, a conservative website, in August. In that article, Delahunty wrote of Section 3: “Although it does not explicitly refer to presidents or presidential candidates, comparison with other constitutional texts referring to ‘officer(s)’ supports the interpretation that it applies to the presidency too.”

“You wrote that article in August of this year, before you were hired by Donald Trump as a paid expert in this case, right?” asked Murray. “Since the time you wrote that article in The Federalist, you’ve been paid about $60,000 by Donald Trump for your work in this case?”

“Yes,” Delahunty replied.

Concluding testimony

Delahunty also questioned whether the clause’s ban on office-holding is, as supporters of the plaintiffs’ case maintain, “self-executing,” meaning that congressional action is not required to bar a candidate from office.

The lack of specific federal legislation implementing Section 3’s provisions, Delahunty said, “should, if only for reasons of prudence … lead a court to abstain from deciding what that phrase means, and toss the ball over to Congress.”

Delahunty’s testimony drew a pointed question from Wallace.

“Do you have examples of situations in which a court has basically said, ‘The Constitution is too hard for me to interpret, therefore I’m going to let Congress tell me what it means?’” she asked. “In general, I think that’s exactly the job of the court, to interpret the Constitution.”

“No, I don’t have case law to cite,” Delahunty said. “It approaches the question of whether Section 3 is self-executing. It goes more to that.”

Other concluding testimony on Friday included the questioning of Tim Heaphy, the former chief investigating counsel for the nine-member House of Representatives select committee that investigated the Jan. 6 attack. The admission of many of that committee’s findings as evidence in the 14th Amendment case has been disputed at length by Trump’s legal team, who allege that the panel was politically motivated and didn’t allow for an “adversarial” process through which evidence could be presented and challenged.

Under questioning, Heaphy defended the committee’s work as “fair and impartial,” repeatedly dismissing Gessler’s implications that it was compromised by the fact that its members, who included seven Democrats and two Republicans, had been highly critical of Trump’s role in the events of Jan. 6 and voted to impeach him over “incitement” of the attack a week later.

“It was the hypothesis that began the investigation, in the form of the impeachment proceedings,” Heaphy said. “We tested it, as you always do in an investigation, against other facts as they emerged, and it never changed.”

Following the conclusion of witness testimony, the trial ended shortly before 5 p.m. on Friday. The court will reconvene to hear closing arguments on Nov. 15, with Wallace expected to issue her ruling by Nov. 17.

Editor’s note: This story first appeared on Colorado Newsline, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.

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