Rep. Swalwell testifies in CO Trump ballot trial while suing ex-president for J6 personal injury

A weeklong hearing to ban former President Trump from being on the ballot in Colorado began Monday, with six voters suing the Colorado secretary of state and Trump as the Colorado GOP has also intervened in the case.

Published: October 30, 2023 1:10pm

Updated: October 30, 2023 5:34pm

Rep. Eric Swalwell, D-Calif., testified on Monday in a Colorado trial against former President Donald Trump while he is in a personal injury lawsuit against the 45th president over the Jan. 6 Capitol riot.

The trial in Colorado in which Trump faces being removed from the state's 2024 presidential ballot on the argument he instigated the Jan. 6 "insurrection" began Monday with petitioner lawyers saying Trump told the crowd 20 times to "fight" before they went to the Capitol Hill to riot. 

Swalwell, who was an impeachment manager for the second impeachment against Trump, took the witness stand on Monday to discuss the process that Congress goes through for certifying the presidential election and his experience at the Capitol on Jan. 6, 2021.

Swalwell testified that Congress' role on Jan. 6 to certify states' Electoral College votes is “largely ceremonial.” He also mentioned how then-Vice President Mike Pence wrote a "dear colleague" letter to the members of Congress, saying that he wouldn't go outside his ceremonial duty of tallying votes and declaring the winner. 

The congressman added that it was "unsettling" when the members of Congress returned to the Capitol from an evacuation room to find out that there were still going to be challenges to the Electoral College votes from some of the states.

Swalwell also said that he "was anxious" about Republicans continuing to challenge the outcome of the election because he thought that the "mob could return" and that members of Congress would become contentious with each other.

Under cross-examination by one of Trump's lawyers, Swalwell acknowledged that he is suing Trump for personal injury as a result of Jan. 6 and is seeking damages, but was not physically injured during the riot.

The attorney asked Swalwell, who is a lawyer, if his case would be helped if this one is decided against Trump. Swalwell said that he would leave it to a legal expert to make the determination of the impact of this case on his own.

The petitioners' argument in the trial is that Trump is ineligible to seek reelection because of the 14th Amendment's "insurrection" clause.

The trial is expected to last a week, with the Citizens for Responsibility and Ethics in Washington, on behalf of six voters, suing the Colorado secretary of state and Trump.

The Colorado GOP has also intervened in the case.

On Monday, the petitioners' lawyers also argued that Trump mentioned only once at the rally outside of the White House on Jan. 6, 2021, being "peaceful" because was just him trying to prevent culpability for using "fight."

In addition, they said Trump led the insurrection and watched the "mob" on TV for three hours without doing anything, such as sending resources to get rid of the mob.

The attorney claimed that Trump says the 14th Amendment doesn't apply to him as president, but that one of the legal experts who will testify as a witness believes that Trump is wrong.

The lawyer closed his argument by saying that Colorado law ensures voters can vote and that it counts, adding that Trump isn't above the law. He asked the court to find Trump ineligible to be placed on the 2024 primary election ballot as a candidate.

An attorney for Trump, Scott Gessler, argued that the lawsuit was "anti-democratic."

“When it comes to deciding who should lead our nation, it’s the people of the United States of America who make that decision, not six voters in Colorado who’ve picked and chosen who they should file a lawsuit against,” Gessler said.

He added that the lawsuit is attempting to "extinguish the opportunity" for Coloradans "to vote for the presidential candidate they want." Gessler also said that the lawsuit is an effort to prevent Trump from winning office and is a "case of lawfare," designed to "interfere with the election."

Gessler argued that the petitioners' case relies largely on the House's Jan. 6 Select Committee report, which is a "political document."

He also claimed that the state court should not be hearing the case, as the lawsuit is based on the 14th Amendment, meaning it should be heard in federal court.

Gessler additionally argued that an informal principle in election law called “the rule of democracy” means to "err on the side of letting people vote” when there is ambiguity.

The Colorado GOP's attorney argued that keeping Trump off the primary ballot violated the party's right to place their candidate on the ballot.

Metropolitan Police Department Officer Daniel Hodges was called as the petitioners’ first witness. He testified to what he experienced during the Jan. 6 Capitol riot, as he was beaten by the "mob" and was afraid for his life.

When asked by the petitioners' lawyer what the reason he was that he fought on Jan. 6, Hodges said that he was "fighting for democracy" and the safety and well-being of everyone inside the Capitol, as well as himself, his colleagues, and "everyone who participates in our democracy."

A lawyer for Trump asked Hodges during cross-examination if he knew of other demonstrations that occurred in Washington, D.C., on Jan. 6. Hodges said that he wasn't aware of the other demonstrations and believed that people part of the other demonstrations not at the Capitol "assault" were not part of "the mob."

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