How using the 14th Amendment against Trump went from a ‘pipe-dream fantasy’ to the Supreme Court

Washington CNN  — 

A lot of smart people predicted this day would never come.

This day being Thursday, when the Supreme Court will hear arguments on whether to disqualify former President Donald Trump from office because of the January 6, 2021, insurrection. The justices are reviewing a landmark decision from Colorado’s top court, which concluded the 14th Amendment’s “insurrectionist ban” applies to Trump.

The legal theory behind the lawsuit transformed over three years from a fringe idea to a successful case heading to the highest court in the land. The litigation faced tremendously long odds, no direct precedent and a well-funded opponent – and yet still won in Colorado.

Story highlights

Liberal-leaning groups planned out how to bring the 14th amendment challenges against Trump.

Test cases were run against Reps. Marjorie Taylor Greene and former Rep. Madison Cawthorn.

The Supreme Court will consider the case on Thursday.

Many experts still believe the Supreme Court, with its conservative supermajority, will resolve the matter in Trump’s favor, especially with the 2024 primaries underway.

Thursday’s high-stakes hearing is the culmination of a politically diverse array of legal scholars coalescing behind a surprisingly strong challenge against one of the most teflon politicians of our time.

They brought test cases during the 2022 midterms, to start breaking legal ground on the arcane constitutional provision that hadn’t been touched since 1919. They scoured the country for which states had laws on the books that could give them a path to a successful ballot challenge. And along the way, their controversial efforts gained some bipartisan backing, with a major boost from the House January 6 committee.

“People were saying it’s a pipe-dream fantasy, or it’s silly, or too hard. But where would America be if we didn’t do hard things?” said Donald Sherman, the top attorney at Citizens for Responsibility and Ethics in Washington, or CREW, which filed the Colorado lawsuit.

The journey to the Supreme Court unknowingly began even before the insurrection itself.

A soft-spoken Indiana University law professor, Gerard Magliocca, published an academic paper in December 2020 about the “insurrectionist ban” and how it was historically enforced against former Confederates after the Civil War.

“The timing was a sheer coincidence,” Magliocca recalled, adding that he decided during the pandemic-plagued summer of 2020 that his next research project would focus on the disqualification clause because “it just so happened that nobody had written about it.”

The provision at the center of the 14th Amendment litigation, known as Section 3, says in part: “No person shall … hold any office … under the United States … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

On January 6, 2021, eight days after Magliocca’s paper was published, thousands of Trump supporters violently stormed the US Capitol, forcing lawmakers to evacuate and disrupting Congress’ certification of the 2020 election results. They attacked the Capitol after Trump, who called them to Washington, DC, urged them to “fight” against a “rigged” 2020 election.

Police officers and National Guard troops eventually cleared the rioters from the complex, and the election certification resumed. Then-Senate Majority Leader Mitch McConnell, a Republican, condemned the “failed insurrection,” a phrase that caught Magliocca’s eye.

“This is just an academic point for now,” Magliocca wrote on a legal blog at 8:12 p.m. “If the President runs again in 2024, though, someone is bound to claim that he cannot serve.”

He’d later testify as an expert witness in multiple January 6 disqualification cases, including against Trump in Colorado and Maine, the only two states to remove him from the ballot.

CREW and another liberal-leaning advocacy group, Free Speech For People, started getting serious in mid-2021 about using the 14th Amendment to stop a Trump comeback.

Free Speech For People launched an effort to educate the public about the little-known provision, which hadn’t been touched since 1919, when Congress used it to ban a socialist lawmaker from office.

Ahead of the 2022 midterms, Free Speech For People filed suits to disqualify several House Republicans over their ties to Capitol riot. They targeted Rep. Marjorie Taylor Greene of Georgia, then-Rep. Madison Cawthorn of North Carolina and a trio of Arizonans. (In the Cawthorn case, the group partnered with a retired GOP state Supreme Court justice.)

“This was their plan all along,” said conservative lawyer James Bopp Jr., who represented Greene and Cawthorn. “I went through the test run of their theory, as they were getting ready for 2024. The litigation in 2022 helped sharpen a bunch of the issues. It revealed some problems with their theories, and also revealed that there were multiple defenses.”

These lawsuits didn’t succeed. But they put the 14th Amendment on the map and gained considerable media attention – Greene’s three-hour testimony was televised live and widely streamed online. And the challengers netted some favorable court rulings along the way. The Georgia judge who declined to disqualify Greene also concluded in his decision that incendiary rhetoric and “marching orders” could constitute engagement in an insurrection.

“That described what Trump did far better than it pertained to Marjorie Taylor Greene,” Free Speech For People’s legal director, Ron Fein, said. “It was an extremely useful precedent.”

A federal appeals court also resoundingly rejected the theory – which Bopp successfully used to shut down the Cawthorn case – that the Amnesty Act of 1872 essentially repealed the insurrectionist ban going forward because it granted relief to “all persons whomsoever.”

“That ruling helped eliminate it as an issue,” Fein said. “It hasn’t been a big issue this year.”

But there was one winning case that year, which proved for the first time that the 14th Amendment could be applied to January 6 and prohibit a modern-day insurrectionist from office.

The dynamic was unique because it involved someone already convicted of a January 6 offense: Couy Griffin, who was also a county commissioner in New Mexico. CREW sued under state law to disqualify him from office, based on his involvement in the Capitol riot.

“We tried to figure out, what are the best facts, and where is the best law,” Sherman, the CREW lawyer, said in an interview. “That’s what led us to Couy Griffin and New Mexico.”

After a trial, a state judge ruled that January 6 was an insurrection and that Griffin violated the oath he took as a commissioner by engaging in insurrection. Griffin was thus disqualified under Section 3 and was removed from office in September 2022. (He is still appealing.)

“This whole thing started on a small scale, with them coming after me, with the specific goal of bringing it up the to the big stage with Donald Trump,” Griffin said. “I was the test case.”

This was the first time in 103 years that the disqualification clause was enforced.

In December 2022, the House select committee that investigated January 6 released its final report. The bipartisan panel, composed of Democrats and anti-Trump Republicans, recommend Trump’s disqualification from future office under Section 3.

Further, the sweeping 845-page report contained dozens of factual findings that the Trump challengers later used against him at the Denver-based disqualification trial last year, over strenuous objections from Trump’s attorneys. The committee’s extensive fact-finding, with more than 1,000 interviews, offered the challengers reams of compelling new evidence.

Clamoring about the 14th Amendment increased in 2023, as the 2024 presidential cycle got in full swing. But the public conversation was largely led by anti-Trump partisans on the left.

That changed in August 2023, when two conservative members of the influential Federalist Society published a law review article endorsing Trump’s disqualification. The article, from law professors William Baude and Michael Stokes Paulsen, generated wide discussion and was backed by J. Michael Luttig, a retired federal appellate judge who has become one of the top conservative voices condemning Trump for waging a “war” against US democracy.

Magliocca, the constitutional scholar, said the law article was “a pivotal turning point.” It later influenced the Colorado Supreme Court, whose majority cited the paper several times, including to support its finding that courts, and not just Congress, can enforce the ban.

“There were a lot of initial reactions saying, ‘That’s crazy,’” Magliocca said of using the ban against Trump. “But that article gave a big shot in the arm to everyone, and made people sit up, pay attention, and realize that this wasn’t just an academic theory. It’s a real thing.”

Sherman and his colleagues at CREW knew they were going to challenge Trump’s candidacy before the 2024 election. But one big question was: Where should they do it?

His team conducted a nationwide research survey to gather information on the dizzying array of laws and procedures to contest presidential ballot access, which vary by state. Sherman visited Colorado in March 2023, to compare notes with local attorneys and activist groups.

That trip confirmed that Colorado was “far and away the most attractive option,” he said.

“Colorado has good law that allows voters to challenge a presidential candidate’s eligibility,” Sherman said. “Not every state allows that for the presidential race. And not every state allows challenges for the primaries. That’s why so many of the other cases have failed.”

Once CREW settled on Colorado for its first challenge, the group had to figure out how to prove that Trump “engaged” in the insurrection. This included legal strategy sessions and even social media outreach, including a direct message on Twitter to Winston Pingeon, a former US Capitol Police officer who was injured while fighting the pro-Trump mob on January 6.

From those Twitter messages, Sherman convinced Pingeon to testify at the Colorado trial. The trial judge, Sarah Wallace, wrote in her ruling that his gripping testimony helped her conclude that “there was an insurrection and that the mob was there on Trump’s behalf.”

CREW and a prominent Denver-based law firm filed the Colorado lawsuit in September. The case was brought against Colorado Secretary of State Jena Griswold, whose office oversees elections. The plaintiffs were a group of Republican and independent voters who were recruited by CREW and disgusted by what they witnessed on January 6.

“I was born four months before FDR was elected,” said Norma Anderson, 91, the lead plaintiff and a Republican whose two-decade career in the Colorado Legislature included stints as majority leader in both chambers. “I’ve lived through a lot of presidents. Some I liked, some I didn’t. But not one of them caused an insurrection, until Donald Trump.”

The case was assigned to Wallace, a rookie judge in her first year on the bench. Even as she rejected Trump’s numerous bids to throw out the case, and a trial became a reality, the lawsuit was still widely portrayed by legal experts and political pundits as a long-shot stunt.

Plus, other stories consumed the headlines. The unprecedented speakership battle in the House of Representatives created daily drama coming out of Washington, DC. And Hamas’ surprise attacks against Israel on October 7 triggered a new full-scale Middle East war.

The unprecedented trial began in the Denver District Court on October 30.

More than a dozen witnesses from both sides testified at trial. Magliocca explained the history of the provision; Pingeon and another police officer relived the violence; two House lawmakers described the Electoral College proceedings and subsequent committee probe; an expert on right-wing extremism linked Trump to militant groups; two January 6 rally organizers defended their event; and a member of the Capitol mob shared his perspective.

Wallace issued a stunning 102-page ruling shortly before Thanksgiving, labeling Trump as an insurrectionist and finding that he “actively primed the anger of his extremist supporters” and “acted with the specific intent to incite political violence and direct it at the Capitol.”

She got tantalizingly close to disqualifying Trump, ruling against him on every key legal question – except one. She said the ban doesn’t apply to the presidency, because of a hiccup in the text that seemingly created a carve-out for the commander in chief. Therefore, even though Trump engaged in insurrection, he must stay on the ballot, Wallace concluded.

The close-but-no-cigar outcome in Colorado came on the heels of other 14th Amendment defeats in Michigan and Minnesota, where Free Speech For People filed major lawsuits.

CREW appealed to the Colorado Supreme Court, whose members were all appointed by Democratic governors, though they originate from a pool of candidates recommended by a bipartisan panel. The high court held oral arguments in December and appeared divided.

The Colorado justices shocked the world on December 19. In a 4-3 decision, the court ruled that Trump was ineligible for office, by affirming Wallace’s findings that Trump engaged in insurrection, and by further ruling that the disqualification clause covers the presidency.

Sherman, the top CREW lawyer, was at home in Washington, DC, when the historic decision dropped, cooking a dinner of spaghetti with meat sauce for his wife and children.

“I hugged my wife, I cried a little, and finished making dinner,” Sherman recalled.

The litigation was filed under a special provision of Colorado’s election code, so it moved with extraordinary breakneck speed: The suit was brought in September, the trial began in October, Wallace issued her ruling in November, and the appeal was decided in December.

But lurking underneath the landmark victory were three dissenting opinions and a guaranteed Trump appeal to the US Supreme Court, with its conservative supermajority. Dissenting Colorado Supreme Court Justice Carlos Samour condemned the expedited trial for severely lacking due process, writing, “what took place here doesn’t resemble anything I’ve seen in a courtroom.”

“They hit gold on the Colorado Supreme Court,” said Bopp, the conservative lawyer, who has won major cases at the US Supreme Court and filed a brief supporting Trump. “But democracy means you let the voters decide. Not judges with expansive views on the law. And there isn’t anything more anti-democratic than removing your opponent from the ballot.”

The Colorado stunner immediately scrambled the 2024 presidential race and set off a frenzy across the country, where Trump critics tried to strip him from more state ballots.

Maine’s secretary of state barred Trump from appearing on the state’s ballot on December 28, vindicating fears from Trump’s legal team that the Colorado decision would trigger a domino effect. But new challenges faltered elsewhere, including in Oregon and Illinois.

Trump appealed the Colorado ruling to the US Supreme Court in early January and oral arguments are set for Thursday.

With the issue front and center, Democrats are split between backing the lawsuit and letting the voters choose Trump’s fate, while Republicans have been more unified in opposition.

GOP Rep. Ken Buck of Colorado, who has denounced Trump’s 2020 election denialism, testified for his defense at the Colorado trial. (One day earlier, Trump celebrated Buck’s retirement by calling him a “Super RINO,” meaning “Republican in name only.”) Buck blasted the decision from his home state.

“It’s embarrassing, and it shows the imbalance on our state Supreme Court,” Buck told CNN. “I disagree with President Trump, factually, on massive voter fraud in 2020 … and I think it would be a terrible mistake to ban someone from the ballot in this country. Let the people decide. They know what Trump did. If they want to elect that person again, let them.”

For proponents of the insurrectionist ban, the case is about enforcing the Constitution, heeding the lessons of the Civil War and protecting democracy. Sherman said CREW has a shortlist of states where he’ll file new challenges if the justices uphold the Colorado ruling.

This journey – from a forgotten clause in the Constitution, to a bloody attack on the US Capitol, to the steps of the Supreme Court – has gone further than almost anyone imagined.

“This has been surreal,” said Magliocca, who never thought his research on the post-Civil War efforts to safeguard democracy and repair a shattered country would come into play today. “After this year, hopefully, nobody will ever be interested in this provision ever again.”

CNN’s Scott Bronstein contributed to this report.