Former President Donald J. Trump’s team had argued that his words and actions leading up to the attack on the Capitol were protected by the First Amendment, and asked that the Colorado case be thrown out.
A Colorado judge on Wednesday refused a request from lawyers for former President Donald J. Trump to throw out a case challenging his eligibility to hold office again, saying she was not yet prepared to decide on what she called “significant legal issues, many of which have never been decided by any court.”
The decision by the judge, Sarah B. Wallace, means the trial will continue through Friday before a final ruling.
It came after a lawyer for Mr. Trump asked for a “directed verdict” — essentially a conclusion, even before the defense had called any witnesses, that no legally sufficient basis existed for the plaintiffs to prevail. The Trump team argued that his words and actions leading up to the Jan. 6, 2021, attack on the Capitol were protected by the First Amendment. Judge Wallace, who is presiding over the case in a state district court in Denver, declined to grant the request.
The case — one of several similar ones around the country — was filed by six Colorado voters who argue that Mr. Trump is disqualified under Section 3 of the 14th Amendment, which bars from office anyone who “engaged in insurrection or rebellion” against the Constitution after having taken an oath to support it.
Over two and a half days starting Monday, lawyers for those voters called a series of witnesses. They included two experts intended to build the case that Mr. Trump incited far-right extremists to attack the Capitol and that this constituted “engaging in insurrection,” as those words were understood when the 14th Amendment was ratified in 1868.
Peter Simi, a professor of sociology at Chapman University and an expert on political extremism, testified Tuesday that the far right used “doublespeak” — language that insiders understood to be calling for violence, but that maintained plausible deniability. For years, he said, Mr. Trump built credibility with members of groups like the Proud Boys and Oath Keepers, such that they saw him as an ally speaking to them in that way.
According to Professor Simi, when Mr. Trump told the Proud Boys to “stand back and stand by” at a debate in 2020, they took it as an order to prepare for a task to be assigned later. When he said “Be there, will be wild” on Twitter before Jan. 6, they understood that to be the task. When he repeatedly told them to “fight” in a speech on Jan. 6, they understood that to mean violence — and saw a brief call to march “peacefully and patriotically” as just for show.
Gerard Magliocca, a law professor at Indiana University, testified Wednesday that when the 14th Amendment was ratified, the word “insurrection” was understood to refer to “any public use of force or threat of force by a group of people to hinder or prevent the execution of the law.” The word “engaged,” in that context, meant “any voluntary act in furtherance of an insurrection, including words of incitement.”
Among other sources, Professor Magliocca cited congressional debate records; court rulings; legal analyses written by the attorney general at the time; and two instances after the Civil War, but shortly before the 14th Amendment was ratified, in which Congress refused to seat members. One had written a letter to the editor calling for violence against Union troops. The other had given $100 to a son who was going to fight for the Confederacy.
After the plaintiffs’ lawyers called their last witness on Wednesday — save for one person expected to testify on Friday because of scheduling issues — Mr. Trump’s lawyers sought the directed verdict, arguing that even if the plaintiffs’ arguments were accepted as fact, that would not legally justify disqualifying Mr. Trump.
They pointed to the Supreme Court’s 1969 Brandenburg v. Ohio ruling, which says that for speech to be an incitement unprotected by the First Amendment, it must be “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.”
Mr. Trump’s team argued that his statements before Jan. 6 were too far removed to meet the “imminent” standard; that nothing he said on Jan. 6 called for violence; and that, even if it had, his mention of marching “peacefully and patriotically” would negate violent intent.
The plaintiffs’ team argued that incitement was not the only level of behavior that counted as “engaging in insurrection” under the 14th Amendment, and that Mr. Trump’s actions did meet the Brandenburg test. Implicit calls for violence in his Jan. 6 speech fulfilled the first prong of the test, they argued, and what ensued was foreseeable enough to fulfill the second.
Judge Wallace emphasized that her decision to reject the request was not a ruling on which side was right but, rather, a recognition that the questions — including the relative weights of the First and 14th Amendments — were tricky. She noted that the two sides had presented legal precedents for opposing claims.
“The court is not prepared today to reconcile those two bodies of law,” she said.
The defense then began calling witnesses on Mr. Trump’s behalf. That testimony is expected to run through Friday.