Hearing over Donald Trump's ballot eligibility nears end in Colorado

Former President Donald Trump attends his civil fraud trial at New York State Supreme Courthouse in New York on Wednesday Oct. 25. The final testimonies are being heard in a Colorado courtroom Friday as the hearing over removing Trump from the ballot in 2024 reaches its last day. Pool photo by Dave Sanders/UPI

Nov. 3 (UPI) -- The final testimonies are being heard in a Colorado courtroom Friday as the hearing over removing Donald Trump from the ballot in 2024 reaches its last day.

Attorneys representing the former president dedicated the first part of the day to the testimony of Robert Delahunty, legal scholar and professor at the University of St. Thomas in Minneapolis. Delahunty gave the opinion that Section 3 of the 14th Amendment, which petitioners say bars Trump from running for president, does not apply to presidents.

Delahunty, who is also a commentator for Fox News and The Federalist, also said Section 3, and the Constitution at large, is not self-executing. This means it can not be enforced without legislation.

"Do you have an example where a court says the Constitution is too hard for me -- so have Congress tell me what the Constitution means?" asked District Judge Sarah B. Wallace. "Why in this instance do I need to say, 'This is too hard, Congress, tell me what it means?'"

Delahunty said he does not have any case law references to answer that question, but he cited the opinion of former Supreme Court Chief Justice Salmon Chase, who ruled in the 1868 Griffin vs. Maryland case that the provision is not self-executing. This was around the same time that the 14th Amendment was ratified.

Attorneys defending Trump's place on the ballot in Colorado and before the Minnesota Supreme Court have parsed Section 3 in the context of when it was enacted in hopes of demonstrating its intended use.

The Reconstruction Era provision was enacted to bar members of the Confederacy, otherwise insurrectionists and rebels, from holding office. It has rarely been invoked in the modern day, let alone to disqualify a presidential candidate.

However, attorneys representing six Colorado voters say Section 3 was enacted to block candidates like Trump.

Delahunty disagrees on several fronts. He stated Friday that he is trying to "underscore the difficulties a court would have, or really anybody would have," in defining what an insurrection or rebellion against the Constitution is, what it means to engage in one and that Trump did so.

"This should lead a court to abstain," he said. "Toss the ball over to Congress to act."

Delahunty also brought forward another central argument against using Section 3. The argument centers on defining what an officer of the United States is and whether that includes the president. According to Delahunty, the president is excluded from this intentionally.

If the president is not an officer of the United States, Section 3 does not apply to them, he said.

Attorney Timothy Heaphy, who was the chief investigative counsel for the House select committee investigating Jan. 6, 2021, pushed back on claims that Trump called for up to 20,000 National Guard troops to be at the ready on the day of the Capitol attack.

Former Trump aide Kash Patel had testified Wednesday that Trump had prepared to have a larger security presence at the Capitol, but D.C. Mayor Muriel Bowser delayed the call.

Heaphy, who the petitioners called to the stand, said the Department of Defense was cooperative in handing over relevant material in the Jan. 6 investigation, but no records of Trump's alleged request were shared.

Colorado Secretary of State Jena Griswold, who is also a party to the case, said it is "positive" to have the court weigh in. The petitioners are urging Griswold to remove Trump from the 2024 primary ballot.

In an interview with MSNBC on Friday, Griswold expressed some level of surprise that Trump has not testified or given deposition in the hearing.

"You would think in such a big case that the potential candidate would want to come and give their side of the story," Griswold said. "His silence, compared to what his testimony would be under oath, is deafening."