Trump could have defended Capitol on Jan 6, expert says in 2024 ballot case

Liberal groups are trying to end Donald Trump’s attempt to return to the White House by arguing he’s ineligible to be president after trying to overturn the 2020 election

Then-president Donald Trump could have mobilized the National Guard and other federal agencies to protect the US Capitol once violence broke out on 6 January 2021, a law professor testified on Tuesday as a case to bar the former president from the 2024 ballot moved into a new phase.

William Banks, a Syracuse University law professor and expert in national security law, said that once the attack on the Capitol began, Mr Trump had options he did not use.

“He should respond to his constitutional responsibilities to protect the security of the United States when there’s an assault on our democratic process,” Mr Banks said of Mr Trump.

Mr Banks was testifying as a witness for a group of Colorado voters who want to bar the former president from the ballot for allegedly violating his oath to uphold the Constitution in his attempt to overturn his 2020 election loss. They cite a rarely used clause in the 14th Amendment, adopted just after the Civil War, that prohibits those who “engaged in insurrection” against the Constitution from holding higher office.

The Colorado case and another before the Minnesota Supreme Court on Thursday are the two most advanced of dozens of challenges to Mr Trump around the country. On Tuesday, his campaign filed a lawsuit in Michigan to stop a related case there. One of the cases is likely to end up at the US Supreme Court, which has never ruled on the insurrection clause.

Mr Trump’s attorneys have said the lawsuits are anti-democratic efforts to deny voters the opportunity to choose who leads the country. They’ve also said they will show in court that Trump took the threat of violence seriously on January 6.

On Tuesday, Geoffrey Blue, one of Mr Trump’s Colorado attorneys, noted that a Department of Defense timeline shows that Mr Trump previously had asked Gen Mark Milley, then-head of the Joint Chiefs of Staff, if the military was prepared for protests that he himself had called against Congress’ January 6 certification of President Joe Biden’s win. Gen Milley said yes, according to the timeline.

Syracuse University law professor William Banks testifies during a hearing regarding a lawsuit to keep former President Donald Trump off the Colorado state ballot, 31 October 2023 (AP)

Mr Trump gave a fiery speech on the Ellipse before the assault, urging his supporters to march to the Capitol to protest the fictitious election fraud he claimed had stopped him from winning a second term. Attacks on the Capitol began earlier and intensified significantly after Mr Trump wrapped up his speech.

Mr Banks acknowledged he did not know what conversations were occurring in the White House that afternoon. Testimony to the House committee that investigated the attack shows that some aides were aghast that Mr Trump wasn’t taking action, but the former president’s lawyers called the committee’s report a partisan document that was distrusted by Republicans.

The committee’s final report details Mr Trump’s inaction as rioters stormed the Capitol, calling it “a dereliction of duty,” and suggested that Congress consider barring him from holding office in the future.

Earlier Tuesday, an expert in right-wing extremism testified about how violent groups interpreted Trump’s calls for a “wild” protest on January 6. And on Monday, the trial’s opening day, police officers who defended the Capitol that day testified about the assault.

The case is expected to get to the constitutional issues that make it significant on Wednesday when a law professor is scheduled to testify about whether Section Three of the 14th Amendment applies to the president, even though that office is not specifically mentioned in the text.

Mr Trump’s attorneys and some critics of the litigation contend the provision also needs congressional legislation to be used.