Background: Violent rioters loyal to President Donald Trump storm the Capitol in Washington on Jan. 6, 2021. (AP Photo/John Minchillo, File) Inset: Former President Donald Trump sits in the courtroom before the continuation of his civil business fraud trial at New York Supreme Court, Tuesday, Oct. 3, 2023, in New York. AP Photo/Seth Wenig, Pool/
Former President Donald Trump has filed a brief with the Supreme Court saying that when it comes to Jan. 6, his role was one of peacemaker, not instigator.
In his bid to stay on the 2024 presidential ballot in Colorado, Trump filed the brief in his appeal from the Centennial State’s highest court, which ruled that the ex-president is disqualified due to his role in the Jan. 6 attack on the U.S. Capitol, when thousands of his supporters — urged by him to “fight like hell” to keep him in office despite losing the 2020 election — violently overwhelmed law enforcement and breached the building as Congress had begun to certify President Joe Biden’s win. As Law&Crime previously reported, the Colorado Supreme Court’s decision reversed a lower-court ruling that the former president could, indeed, remain an official contender for president despite having “engaged in insurrection.”
The brief insists that he actually did the opposite.
“President Trump did not ‘engage in insurrection,”” the brief says. “The Colorado Supreme Court tried to impute the conduct of others to President Trump. But the [plaintiffs] needed to show that President Trump’s own conduct qualified as ‘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. In fact, the opposite is true, as President Trump repeatedly called for peace, patriotism, and law and order.”
Trump’s position — that he is the “opposite” of the more than 1,200 people arrested in connection with the Jan. 6 siege of the Capitol — appears to contradict his previous pledges to pardon convicted rioters if reelected to office.
“[N]othing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as “insurrection.” No prosecutor has attempted to charge President Trump with insurrection under 28 U.S.C. § 2383 in the three years since January 6, 2021, despite the relentless and ongoing investigations of President Trump. And for good reason: President Trump’s words that day called for peaceful and patriotic protest and respect for law and order.”
The brief says that Trump’s claims of voter fraud — which, the brief doesn’t acknowledge, were false, baseless, and widely rejected in courts of law — don’t amount to an attempt to undermine valid election results.
“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,” the brief says. “And giving a passionate political speech and telling supporters to metaphorically ‘fight like hell’ for their beliefs is not insurrection either. Section 3 is not a vicarious-liability regime, and there is no legal basis for imputing the conduct of others to President Trump.”
The case, which both Trump and the Colorado Republican State Central Committee appealed to the Supreme Court, hinges on the justices’ interpretation of Section III of the 14th Amendment of the Constitution. That section, which was written in the aftermath of the Civil War, says:
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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
In his brief, lawyers for Trump call the clause “antidemocratic,” and argue that he is “not even subject to section 3, as the President is not an ‘officer of the United States’ under the Constitution.”
Trump’s lawyers argue that the Constitution’s “text and structure make clear that the president is not an ‘officer of the United States.’ This phrase ‘officer of the United States’ appears in three constitutional provisions apart from section 3, and each time the president is excluded.”
These provisions require the president to appoint certain positions, such as ambassadors, public ministers, Supreme Court justices, and “all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law,” the brief says, quoting the Constitution.
“The president does not (and cannot) appoint or commission himself, and he cannot qualify as an ‘officer of the United States’ when the Constitution draws a clear distinction between the ‘officers of the United States’ and the president who appoints and commissions them,” the lawyers argue.
The brief also says the Constitution’s rules for impeachment — which provide that the “President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” — also support this position.
“There is no need to separately list the president and vice president as permissible targets of impeachment if they fall within the phrase ‘all civil Officers of the United States,’” the brief says. “And if that phrase encompasses the president and vice president, then the Impeachment Clause would say that the ‘President, Vice President and all other civil Officers of the United States’ are subject to impeachment and removal.”
Trump also asks the Supreme Court to put an end to efforts — currently underway in more than 30 states — to keep Trump off the 2024 ballot, predicting chaos if he is not allowed to run.
“The Court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” the brief says.
Read Trump’s filing here.
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