Attorneys for Donald Trump say he did not engage in ‘anything that qualifies’ as an insurrection in a new Supreme Court filing that seeks to overturn a Colorado Supreme Court decision that knocked him off the ballot there.
The lawyers refer to individuals who stormed the Capitol armed with weapons and clashed with Capitol police – but say Trump can’t be held responsible for the ‘conduct of others’ and cite his afternoon tweets urging people to remain ‘peaceful.’
The filing comes after the Colorado decision set off a political uproar after a group of state voters sued to kick Trump off the ballot, citing Section 3 of the post-Civil War 14th Amendment.
Trump’s team calls that interpretation ‘dubious.’
‘Even if President Trump were subject to section 3, he did not “engage in” anything that qualifies as “insurrection,” wrote his team of six lawyers.
As in state court, Trump’s team argued that the president does not count as an ‘officer’ of the court under the 14th Amendment, which doesn’t specifically mention the presidency but goes through a laundry list of lower officers while singling out those who engaged in ‘insurrection’ or who gave ‘aid and comfort’ to the enemy.
TOPSHOT – Former US President Donald Trump (L) stands with his wife Melania Trump (R) as they depart a funeral for Amalija Knavs, the former first lady’s mother, outside the Church of Bethesda-by-the-Sea, in Palm Beach, Florida, on January 18, 2024. Trump’s lawyers in a new Supreme Court filing denied he ‘engaged in’ an ‘insurrection’
According to the amendment: ‘No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State …’
Lawyers for the plaintiffs ridiculed that argument, saying an amendment that applies to a low level military officer would also apply to the president.
The district court found that Trump ‘engaged in insurrection’ and cited his January 6 speech, where he told supporters to ‘fight like hell’ after repeatedly claiming the election was stolen before a mob stormed the Capitol.
Special Counsel Jack Smith has brought criminal charges against Trump for conspiring to interfere in an official proceeding and denying people’s civil rights, but he has not been convicted and a court proceeding of insurrection or charged with that specific crime.
Supporters of former President Donald Trump broke into the Capitol Building on January 6, interrupting the joint session of Congress that cemented President Joe Biden’s 2020 election win
Former President Donald Trump attends a rally on the Ellipse on January 6, 2021, ahead of the Capitol attack. His role in the ‘insurrection’ and attempt to overturn the 2020 election make him ineligible to serve, the Colorado Supreme Court ruled on Tuesday
‘The Colorado Supreme Court tried to impute the conduct of others to President Trump,’ according to Trump’s lawyers. But they say the litigants need to show that Trump’s own conduct was an insurrection, ‘and they cannot make that showing when President Trump never participated in or directed any of the illegal conduct that occurred at the Capitol on January 6, 2021.’
‘President 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 Ellipse46 or in any of his statements or communications before or during the events of January 6, 2021,’ his lawyers write.
They also cite his tweets encouraging people to ‘remain peaceful,’ although the House January 6 Committee obtained testimony from key Trump advisors lobbying Trump to persuade him to publicly urge people to ‘stay peaceful’ while the riot was unfolding.
‘The Colorado Supreme Court faulted President Trump for (in its view) failing to respond with alacrity when he learned that the Capitol had been breached,49 but even if that were true (and it isn’t), a mere failure to act would not constitute “engagement” in insurrection, as even the Colorado Supreme Court recognized,’ they write.
They also argued that Trump wasn’t armed, didn’t storm the Capitol, and didn’t threaten violence – while pointing out that members of the mob did.
‘The Colorado Supreme Court held that the events of January 6, 2021, constituted an “insurrection” because: (1) “a large group of people forcibly entered the Capitol”; (2) “the mob was armed with a wide array of weapons”; (3) “the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons”; (4) “the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol”; and (5) “[the mob . . . marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” But President Trump did not “engage in” any of those activities. And none of President Trump’s actions that the Colorado Supreme Court described come anywhere close to “insurrection,” they write.