Could This Trump Argument Persuade SCOTUS?
Ex-president’s lawyers say that since he wasn’t violent on January 6th himself, he shouldn’t be kept off the ballot in Colorado.
LAST THURSDAY, A HANDFUL of Donald Trump’s (remaining) lawyers filed a brief in the U.S. Supreme Court urging reversal of last month’s Colorado Supreme Court ruling that he is ineligible for the presidential ballot because he engaged in insurrection within the meaning of Section 3 of the Fourteenth Amendment. The brief offers a shred of an argument that conservatives on the Supreme Court might cling to if they wish to deactivate that constitutional provision for purposes of the upcoming presidential election.
Before getting to some of the legal and factual assertions made by the professionals, let’s take a moment to consider the words of Trump himself, who has been claiming he cannot be prosecuted for any actions—including any crimes—taken while president. Here is what he wrote at 2 a.m. on Thursday morning:
Pause for a moment here. Donald Trump, who is facing 91 criminal counts in four separate jurisdictions, actually refers to making a “mistake,” and alludes to events that “cross the line.” He goes on:
Never mind a “rogue cop” or a “bad apple” president, says Trump. The Constitution doesn’t care!
As MSNBC legal analyst and longtime federal prosecutor Glenn Kirschner told Newsweek, “That’s what I’d refer to as a tacit admission or an implied admission, but you really don’t have to read between the lines.”
DESPITE THIS QUASI-ADMISSION of wrongdoing, Trump’s lawyers once again put their necks—and their reputations—on the line by pretending that his conduct on and around January 6th, which gave rise to the four federal charges against him in Washington, D.C., was anything but improper. In urging reversal of the Colorado ruling, they claim that Special Counsel Jack Smith didn’t specifically charge Trump with insurrection under 28 U.S.C. § 2383 “for good reason”—that is, “President Trump’s words that day called for peaceful and patriotic protest and respect for law and order.”
But while Trump has not been convicted beyond a reasonable doubt, nor even been formally charged with criminal insurrection, Colorado courts did carefully weigh the question of whether his actions amounted to insurrection in order to merit ballot disqualification under Section 3. Yes, it’s true that the stakes are different—prosecution for criminal insurrection might have landed him in jail, while the question in Colorado related only to his ballot eligibility—he did get due process in a trial before the district judge in Colorado regarding the scope of Section 3. That judge found the evidence Trump committed insurrection to be clear and convincing, and the Colorado Supreme Court agreed.
Trump’s lawyers go on to argue that he “never told his supporters to enter the Capitol” and “did not lead, direct, or encourage any of the unlawful acts that occurred at the Capitol.” Even though the Colorado Supreme Court “faulted” Trump for “failing to respond with alacrity when he learned that the Capitol had been breached,” they assert, “a mere failure to act” is not “‘engagement’ in insurrection.” Instead, Trump called “for peace, patriotism, respect for law and order,” and in fact directed “the Secretary of Defense to do what needs to be done to protect the American people.”
To the extent Trump did anything, according to his lawyers, he merely raised “concerns about the integrity of the recent federal election” and pointed “to reports of fraud and irregularity,” and gave a “passionate political speech . . . telling supporters to metaphorically ‘fight like hell’ for their beliefs.” Trump “did not commit or participate in the unlawful acts,” they insist, and can hardly be imputed with the “telepathy” to know what his supporters would do.
There are two issues to unpack here. The first is the exhausting distortion of Trump’s actions, as if he didn’t in fact do what we all saw with our own eyes: lie nonstop about the results of and integrity of the 2020 election; engineer a scheme to create fake slates of electors in several states; push state election officials to falsely “find” votes for him; stoke the “Stop the Steal” movement that even Trump’s fellow Republicans warned would end in violence; attempt to replace the leadership of the Justice Department so the department would back up his election lies; summon his followers to come to Washington on the day Congress was to formally count the electoral votes; and exhort the crowd on January 6th—resulting in the bloody assault on the U.S. Capitol, with legislators and staffers running for their lives, gallows built outside, threats to the lives of Vice President Mike Pence and various lawmakers, and law enforcement officers slipping in blood, with multiple deaths and injuries, some severe. Trump’s lawyers cynically try to minimize all this.
The second point, however, is that Trump’s lawyers do make an argument that could have some traction with some of the justices on the Supreme Court: Unless Trump personally joined the mob (which, according to White House staffer Cassidy Hutchinson, he aimed to do until thwarted by the Secret Service) and engaged in some form of violence, it is constitutionally impossible for “insurrection” to apply. Of the more than 1,200 arrests relating to January 6th so far, presumably no one has been charged with a crime for just watching the chaos and verbally joining the calls for an illegal government takeover (which of course is a far cry from Trump’s actual level of involvement). The Department of Justice website lists charges relating to assaults, trespass, and destruction of property. Over 300 people have—like Trump—been charged with obstruction of an official proceeding, and more than 50 have been charged with some form of conspiracy.
But these individuals were not also federal government officials with meaningful authority at the time. Other than Trump, no other high-level officials have been indicted at the federal level for helping mastermind the plan (although Fulton County, Georgia District Attorney Fani Willis did go that far, charging two former federal officials—Trump’s chief of staff, Mark Meadows, and an assistant attorney general, Jeffrey Clark—alongside Trump and the other indictees). Jack Smith’s reticence in this regard could wind up helping Trump in the Section 3 case.
But let’s be clear: This strategic happenstance doesn’t mean there are good reasons to second-guess Smith’s charging decisions now. There are so many moving parts in the hide-and-seekish game of constitutional accountability that Trump and his Republican enablers are playing that there’s no way anyone, however clever, could have anticipated how all the parts would play out. We still don’t know. However, the justices should—and do—know better. If five decide to sign on to the notion that only presidents who engage in hand-to-hand violent combat can be tagged with insurrection, but otherwise are free to pull the levers of power to unlawfully remain in power, they will be taking another step towards crowning an American king.
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