How Trump Legal Team Makes the Case He Never Engaged in Insurrection

Donald Trump speaking to supporters at an immigration policy speech at the Phoenix Convention Center in Phoenix, Arizona. Photo Credit: Gage Skidmore

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Katrina Trinko | The Daily Signal

Former President Donald Trump’s legal team filed a brief with the Supreme Court Thursday, arguing that a Colorado Supreme Court ruling to keep him off the ballot would “disenfranchise tens of millions of Americans.”

The Colorado Supreme Court ruled last month that Trump was not eligible to be a presidential candidate because he had violated Section 3 of the 14th Amendment, which bans lawmakers from engaging in insurrections or rebellions against the Constitution. The Supreme Court has agreed to take up the case and will hear oral arguments Feb. 8.

In the brief, Trump’s legal team urges the Supreme Court to act quickly.

“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,” write Trump’s lawyers.


The brief also forcefully makes the case that Trump did not engage in an insurrection during the Capitol Riot on Jan. 6, 2021.

“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,” states the brief.

Additionally, Trump’s lawyers note that he instructed then-Defense Secretary Mark Esper, who had the ability to call on the National Guard, on Jan. 5 to do what was necessary to keep Americans safe.

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The Trump legal team also writes that “[r]aising 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” and “giving a passionate political speech and telling supporters to metaphorically ‘fight like hell’ for their beliefs is not insurrection either.”

The brief also takes on the argument that Trump spoke in “coded” language to urge his supporters to rebel.

Referring to the plaintiffs in the Colorado case, Trump’s lawyers write:

The Anderson litigants insist that President Trump’s speech at the Ellipse and his statements and tweets leading up to the events of January 6, 2021, should be regarded as acts of ‘insurrection’ because [Chapman University] Professor [Pete] Simi opined that President Trump was speaking in ‘coded’ language to his supporters. … Both the district court and the state supreme court relied heavily on Simi’s ‘coded language’ testimony in concluding that President Trump’s speeches and statements qualify as ‘insurrection.’ …. But this Court should not allow a candidate’s eligibility for the presidency to be determined or in any way affected by testimony from a sociology professor who claims an ability to decipher ‘coded’ messages. The fact remains President Trump did not commit or participate in the unlawful acts that occurred at the Capitol, and this Court cannot tolerate a regime that allows a candidate’s eligibility for office to hinge on a trial court’s assessment of dubious expert-witness testimony or claims that President Trump has powers of telepathy.


Earlier Thursday, a large group of lawmakers led by Sen. Ted Cruz, R-Texas, and House Majority Leader Steve Scalise urged the Supreme Court to overturn the Colorado ruling in a brief.

“President [Joe] Biden has based his reelection effort on the notion that he is safeguarding democracy, but he and his radical allies are attempting to undermine the central component of the democratic process—the people’s power to choose their leaders through elections,” said Scalise in a statement, adding:

Not only does the Colorado Supreme Court have no authority to remove President Trump from the ballot in the 2024 presidential election, but the broad and ill-defined justifications they use can easily be abused in the future to block political opponents from assuming office.

In addition to Cruz and Scalise, House Speaker Mike Johnson, 41 Senate Republicans, and 135 House Republicans signed onto the brief.

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