In a brief filed on Thursday, Donald Trump's lawyers urge the U.S. Supreme Court to reject the claim that he is disqualified from running for president under Section 3 of the 14th Amendment because he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. Their arguments echo the points they made in their petition asking the justices to review the Colorado Supreme Court's December 19 decision to that effect. Among other things, the new brief fleshes out Trump's rebuttal of the premise that his conduct on January 6 can accurately be described as engaging in an "insurrection" against "the Constitution of the United States."
That section of the brief is highly misleading in some respects, minimizing the recklessness of Trump's pre-riot speech and his inexcusable dereliction of duty after the assault on the Capitol began. Those actions and inactions rightly led to Trump's impeachment by the House and should have resulted in his conviction by the Senate, which would have barred him from running for president again. But it does not necessarily follow that they amounted to engaging in an insurrection, and Trump's lawyers offer several cogent reasons to reject that assessment.
"No prosecutor has attempted to charge President Trump with insurrection" under 18 USC 2383 "in the three years since January 6, 2021, despite the relentless and ongoing investigations of President Trump," the brief notes. "And for good reason: President Trump's words that day called for peaceful and patriotic protest and respect for law and order. In his speech at the Ellipse, President Trump told the crowd to 'peacefully and patriotically make your voices heard.' And he encouraged 'support [for] our Capitol Police and Law Enforcement.'…President Trump also sent tweets throughout the day instructing his supporters to 'remain peaceful' and '[s]tay peaceful,' and he released a video telling the crowd 'to go home now.'"
That description omits crucial context, including the two months that Trump had spent ginning up his supporters' outrage with phony claims of a stolen election, his messages encouraging them to attend a rally that he said would be "wild," and the apocalyptic rhetoric of his speech at the Ellipse, which warned that Congress was about to destroy democracy by anointing a pretender as president. "We're going to have somebody in there that should not be in there," he said, "and our country will be destroyed, and we're not going to stand for that." If his supporters did not "fight like hell," he warned, "you're not going to have a country anymore." In this context, it was completely foreseeable that at least some of Trump's followers would resort to violence when he directed them to march on the Capitol in protest against the imminent certification of Joe Biden's victory, notwithstanding his instruction that they should do so "peacefully and patriotically."
The brief also ignores the ways in which Trump continued to stir up his supporters even after the riot began, including his tweet condemning Vice President Mike Pence for lacking the "courage" to unilaterally obstruct the electoral vote tally. And it glides over the timing of Trump's supposedly pacifying messages. He asked his supporters to "stay peaceful" and to "support our Capitol Police and Law Enforcement" at 2:38 p.m., nearly two hours after rioters overran the police perimeter around the Capitol and half an hour after they invaded the building itself. He told them to "remain peaceful" about 15 minutes later, and in both cases his phrasing obscured the fact that his supporters' behavior at that point was decidedly not peaceful. Trump "released a video telling the crowd 'to go home now'" at 4:17 p.m., nearly three and a half hours after the riot started. Even then, Trump continued to insist that "we had an election that was stolen from us," so "I know how you feel."
In the hours before Trump reluctantly recorded that video, he was watching the violence unfold on TV and resisting entreaties that he intervene. "This is what happens when they try to steal an election," he reportedly told a White House lawyer. He publicly offered the same take on Twitter around 6 p.m.: "These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!"
Trump's brief, in short, offers an expurgated account of his actions that would leave an uninformed reader puzzled about why his behavior was egregious enough to provoke bipartisan condemnation and trigger his second impeachment. His lawyers nevertheless raise several cogent points that cast doubt on the Colorado Supreme Court's conclusion that he "engaged in insurrection."
Trump "never told his supporters to enter the Capitol, and he did not lead, direct, or encourage any of the unlawful acts that occurred at the Capitol—either in his speech at the Ellipse or in any of his statements or communications before or during the events of January 6, 2021," the brief notes. Nor did Trump "engage in" any of the unlawful actions, such as fighting with police and forcibly entering the Capitol, that the Colorado Supreme Court cited as evidence that the riot qualified as an insurrection.
"Raising concerns about the integrity of the recent federal election and pointing to reports of fraud and irregularity is not an act of violence or a threat of force," Trump's lawyers say. "Giving a passionate political speech and telling supporters to metaphorically 'fight like hell' for their beliefs is not insurrection either." The voters who challenged Trump's inclusion in Colorado's presidential primary ballot "must show that President Trump's own conduct—and not the conduct of anyone at the Capitol on January 6th—qualifies as 'insurrection,'" the brief argues. "And this they cannot do."
Trump's lawyers note that the Colorado Supreme Court relied heavily on the testimony of Chapman University sociologist Peter Simi, who averred that Trump had a pattern of using "coded language" that hotheaded supporters would understand as a call to violence. "This Court should not allow a candidate's eligibility for the presidency to be determined or in any way affected by testimony from a sociology professor who claims an ability to decipher 'coded' messages," the brief says. "The fact remains President Trump did not commit or participate in the unlawful acts that occurred at the Capitol, and this Court cannot tolerate a regime that allows a candidate's eligibility for office to hinge on a trial court's assessment of dubious expert-witness testimony or claims that President Trump has powers of telepathy."
As the brief notes, the Colorado Supreme Court also "faulted President Trump for (in its view) failing to respond with alacrity when he learned that the Capitol had been breached." But "even if that were true (and it isn't)," Trump's lawyers say, "a mere failure to act would not constitute 'engagement' in insurrection, as even the Colorado Supreme Court recognized." That parenthetical "and it isn't" is blatantly at odds with the evidence, which shows beyond a reasonable doubt that Trump failed to "respond with alacrity" (a polite way of putting it). But his lawyers otherwise are on firm ground in arguing that such a failure is not enough to establish that Trump "engaged in" an insurrection.
The brief also plausibly argues that Trump's behavior did not meet the definition of proscribable incitement laid out in the 1969 Supreme Court case Brandenburg v. Ohio. In that decision, the Court said even advocacy of illegal conduct is protected by the First Amendment unless it is both "directed" at inciting "imminent lawless action" and "likely" to do so.
"The Brandenburg standard does not turn on whether violence actually occurs in response to a person's speech," the brief notes. "It only matters whether the speech itself was 'intended' and 'likely' to incite imminent violence, and the constitutional status of President Trump's statements would be no different if he had given the same speech and his supporters remained entirely peaceful as he urged. This Court would never tolerate criminal prosecution of a speaker who tells his audience to 'fight like hell' and 'take back our country,' as language and rhetoric of this sort is common in political discourse."
In a widely read 2023 law review article, University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen make an originalist case for a broad reading of Section 3 that they say clearly covers Trump's conduct. Even if that view ran afoul of First Amendment precedents, they argue, Section 3 would trump freedom of speech as the Supreme Court has defined it. Trump's lawyers, by contrast, argue that his speech at the Ellipse fails the Brandenburg test and therefore cannot qualify as insurrection under Section 3: "Because President Trump did not 'incite violence' under Brandenburg, it follows per se that he did not 'engage in insurrection' either."
If the Capitol riot qualified as an insurrection and if Trump's actions amounted to engaging in that insurrection, the implications could extend far beyond one especially odious demagogue. In 2020, his lawyers noted in their Supreme Court petition, "violent protesters" in Portland, Oregon, "targeted the federal courthouse…for over 50 days, repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purported political agenda opposed to the authority of the United States." Those are all crimes, of course, but do they also amount to insurrection under 18 USC 2383? Could a politician who delivered fiery remarks at such a protest be barred from office under Section 3?
The claim that Trump's January 6 speech passes the Brandenburg test likewise opens a can of worms. The 2020 protests against police brutality inspired by George Floyd's death frequently turned violent. Does that mean protest leaders can be held civilly or criminally liable for that violence, even when they neither advocated nor participated in it? The question is not theoretical.
The Supreme Court need not engage these questions to reject the conclusion that Section 3 applies to Trump, since there are several other plausible grounds for deciding that it does not. But the attempt to characterize what Trump did as engaging in an insurrection or as incitement under the Brandenburg test, while understandable given the Senate's failure to hold him accountable for his reckless behavior on January 6, opens the door to applications of those concepts that his opponents may not like.
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