Donald Trump’s lawyers filed his legal brief challenging Colorado’s decision to toss him from the ballot at the Supreme Court on Thursday and, if nothing else, the court’s decision will decide whether or not Trump engaged in an “insurrection” on January 6.
It’s not likely that the Court will leave any wiggle room for states to misinterpret the decision and attempt to disqualify Trump from the ballot elsewhere.
“No prosecutor has attempted to charge President Trump with insurrection” under 28 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’s true as far as it goes. But, as Reason’s Jacob Slullum points out, the lawyers left crucial context out of the brief.
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.”
Why “notwithstanding” his instructions? Those “instructions” are critical to prove that no matter what else Trump said, he wanted his followers to remain peaceful. Deliberately ignoring them is exactly what the Colorado case is about.
You can cherry-pick Trump’s statements for the months prior to the riot and paint a picture of a man determined to reverse history’s decision. But to do it violently? There’s no evidence for that.
I have no doubt that Trump was conflicted that day. Hence, the apocalyptic rhetoric along with admonishments to stay peaceful. But any effort to portray the clownish, boorish, drunken break-in of the Capitol building as anything but a spur-of-the-moment action by a few rowdies has always fallen short of reality.
I don’t think the Supreme Court will agree that Trump’s words and actions amounted to an insurrection.