Trump’s Supreme Court Filing Counters Allegations of Insurrection Involvement

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. The new brief fleshes out Trump’s rebuttal, suggesting that his conduct should not be accurately characterized as engaging in an insurrection against the Constitution of the United States. This brief is misleading, downplaying the recklessness of Trump’s pre-riot speech, as well as his inaction after the assault on the Capitol began. Trump’s impeachment by the House led to his conviction by the Senate, barring him from running for president again. Despite this, Trump’s lawyers offer several logical reasons to reject the assessment that he “engaged in insurrection.” The brief claims that “no prosecutor has attempted to charge President Trump with insurrection” and argues that Trump’s words called for peaceful and patriotic protest and respect for law and order. The description omits crucial context, including the two months that Trump had spent ginning up his supporters’ outrage with phony claims of a stolen election. In addition, the brief also ignores the ways in which Trump continued to stir up his supporters even after the riot began, suggesting that Trump’s brief 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.

Despite Trump’s lawyers raising several cogent points that doubt the Colorado Supreme Court’s conclusion that he “engaged in insurrection,” their arguments have been widely disputed. They argue that 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.” Trump’s lawyers also note that the Colorado Supreme Court relied heavily on the testimony of a 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. However, the brief argues that the Colorado Supreme Court should not have allowed a candidate’s eligibility for the presidency to be determined by “dubious expert-witness testimony” or claims that President Trump has telepathic powers. The brief also plausibly argues that Trump’s behavior did not meet the definition of proscribable incitement laid out in a 1969 Supreme Court case.