Sunday, February 04, 2024

A User’s Guide to Trump v. Anderson, Part Five: Trump’s Argument That He Did Not Engage in an Insurrection [UPDATE on 02/05 to respond to reply briefs]

Marty Lederman

Part II of Donald Trump’s brief argues that the factual predicate for the Colorado Supreme Court’s decision to remove Trump’s name from the primary ballot was absent because Trump did not “engage in” an insurrection against the United States on January 6, 2021.[1]  [Apologies in advance about all the footnotes, but I didn't want to clutter the text with too many peripheral matters.]

The Colorado Supreme Court held that Trump’s words on January 6 incited the violent insurrection at the Capitol even assuming that the heightened First Amendment standards of Brandenburg v. Ohio apply to the Section 3 question, and that such incitement was a form of “engaging in” the violent insurrection itself—conduct that disqualifies Trump from serving in any future covered federal or state office, including the presidency.  Trump argues that the evidence before the Colorado courts was insufficient to establish that he intended his speech on January 6 to incite a violent (as opposed to a peaceful) resistance to the counting of the electoral votes by Vice-President Pence and the Joint Session of Congress, and therefore failed to satisfy the Brandenburg incitement standard.  (As I’ll discuss below, the state court also importantly found that Trump “directly participated in” and “supported” the violence after it had begun—a holding that Trump completely ignores in his opening brief.)    


Before I address this argument, it’s important to note that Trump’s counsel Jonathan Mitchell appears to have abandoned two other insurrection-related arguments that Trump made in the Colorado courts:  (i) that the violence at the Capitol on January 6 did not constitute an “insurrection” at all; and (ii) that inciting or aiding an insurrection doesn’t constitute “engaging in” it.  [UPDATE as of 02/05:  In his reply brief, Mitchell once again makes both of these arguments, although he devotes only a sentence to the former (that the violence didn't amount to an insurrection).  I'll try to add more on these matters in the coming days, particularly if they appear to have salience at the oral argument.]


Some might question Mitchell’s judgment in dropping those arguments, particularly the one concerning whether the violence at the Capitol was an “insurrection.”  After all, the Department of Justice and the grand jury have charged hundreds of individuals in connection with the January 6 attack on the Capitol—some even with “seditious conspiracy” under 18 U.S.C. § 2384—yet they have not (as least thus far) charged anyone with involvement in an insurrection pursuant to 18 U.S.C. § 2383.  That dearth of insurrection prosecutions might be based upon an assessment that there would be legal uncertainty about whether the violence on that day rose to the level of an insurrection.[2]  Regardless of the possible strengths or weaknesses of the “no insurrection” argument, however, I think Mitchell was wise to abandon it, because it’s difficult to imagine the Court announcing that what happened at the Capitol on January 6 wasn’t an “insurrection,” regardless of the possible technical legal merits of such an argument.  After all, majorities of both Houses of Congress concluded that it was an insurrection and that Trump “engaged in” it; and it’s widely and commonly referred to as an “insurrection” in public discourse.  


I should add that, now that Trump has effectively waived the argument about the definition of “insurrection,” I think it would be a mistake for the Supreme Court to opine on it.  Even the Colorado Supreme Court could not find evidence of any consensus view on what the term meant in 1868.  The Court explained—rightly, in my view—that the definitions of the term “insurrection” in the mid-Nineteenth Century “var[ied] and some are arguably broader than others.”  Nor were there many, if any, pre-1868 judicial interpretations of the term “insurrection” (and not very many since then, either), because legal disputes rarely if ever turned on whether violence amounted to “insurrection.”[3]  


Ultimately, the Colorado Supreme Court decided that “for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word ‘insurrection.’”  Instead, the Court chose to rely upon a definition that it viewed as sufficient for purposes of this case:  “[I]t suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”  Although the Colorado Court didn’t cite any authority for a “prevent a peaceful transfer of power” gloss, that definition certainly sounds quite reasonable, and comports with most people’s intuition that violence undertaken for such a purpose must be (or at least ought to be) deemed an “insurrection.”


Like the Colorado Supreme Court, I don’t think that “insurrection” was well-defined when the Fourteenth Amendment was enacted or that there’s any sure-fire way to define it now that would clearly distinguish it from rebellion, on the one hand, and politically motivated violence short of insurrection, including riots, on the other.  If the U.S. Supreme Court were to settle upon and announce a definition in this case—particularly one as broad and open-ended as that in Noah Webster’s 1857 American Dictionary of the English Language (which included “the open and active opposition of a number of persons to the execution of law”)—such a ruling could have unanticipated downstream ramifications for other cases that are materially different from this one, and implications for statutes that use the term, including one that gives the President authority to use military forces to suppress insurrections in certain circumstances.[4]  

Because the issue is uncontested as the Trump case comes to the Court, the Justices can and should simply assume for purposes of the appeal that the attack on the Capitol was an insurrection, consistent with the conclusions of majorities of both chambers of Congress in the impeachment proceedings in January and February 2021.


Now let’s turn to Trump’s argument about why he didn’t “engage in” the violent insurrection at the Capitol on January 6, 2021.


As noted above, the Colorado Supreme Court found that Trump had “engaged in” the violent attack of January 6 by inciting it, even if the demanding Brandenburg criteria are applied.  Under that standard, the First Amendment does not preclude punishment for incitement if it is established that the speech in question was “directed to inciting or producing imminent lawless action” and was “likely to incite or produce such action.” 395 U.S. at 447; see also Counterman v. Colorado, 600 U.S. 66, 76, 81 (2023).


As I’ll explain, I think that Trump’s argument about the proof of his intent might have some salience as applied to his speech on the Ellipse before the violence began, although even as to that the question is a close one.  Trump is, however, on much thinner ice when it comes to his conduct after 2:00 p.m., when the break-in at the Capitol was already underway.  The evidence is fairly strong that he not only incited further violence then, but also aided and abetted the rioters by failing to honor his duty to take steps as President to quell the violence, all with an evident intent to encourage what was happening in the Capitol.[5]


Before the Insurrection


Trump insists that there is no evidence that he intended his speech at the Ellipse to spur his followers to engage in violent (as opposed to peaceful) protest, or threats of violence, at the Capitol on January 6th.  (The Supreme Court recently confirmed that the “directed to” prong of Brandenburg requires proof of an intent to incite or produce imminent lawless action, at least for purposes of criminal or civil liability.  See Counterman, 600 U.S. at 76; Hess v. Indiana, 414 U.S. 105, 109 (per curiam).)  Here’s how Trump’s brief describes what he did that day (and the preceding evening):


In his speech at the Ellipse, President Trump told the crowd to “peacefully and patriotically make your voices heard.”  Pet. App. 292a.  And he encouraged “support [for] our Capitol Police and Law Enforcement.”  On the evening of January 5, 2021, President Trump instructed the Secretary of Defense, who had authority to deploy the National Guard, to “do what’s required to protect the American people.”  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 Ellipse or in any of his statements or communications before or during the events of January 6, 2021.  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.”


The plaintiffs are right to object that this is an extraordinarily truncated and sanitized account of what Trump did on January 6 (and the final sentence is deeply misleading[6]).


Even so, some Justices might think that when it comes to Trump’s speech on the Ellipse, the evidence is ambiguous about whether he specifically intended the assembled throng to use (or to threaten the use of) force at the Capitol.  

That hardly means that the speech was harmless—anything but.  It was reckless and deeply irresponsible.  Moreover, the risk of violence was considerable (and foreseeable--Trump knew that many in the crowd were armed) and the evidence is overwhelming that Trump welcomed the violence once it commenced.  And the evidence further supports the state court’s conclusion that the other prong of the Brandenburg test was met—namely, that Trump’s speech was likely to produce imminent unlawful conduct, in light of what Trump had been saying to these same crowds about the propriety of violence for years on end and the false narrative of fraudulent votes he was peddling.  

All of that, however, doesn’t necessarily demonstrate that Trump intended the Ellipse speech to incite a violent response at the Capitol.


The plaintiffs’ efforts to show otherwise, unfortunately, are exaggerated in places.  On the very first page of their brief, for example, they allege that Trump “intentionally organized” a violent mob “to attack the United States Capitol” and that he “spearhead[ed]” the attack.  As bad as Trump’s conduct was, those characterizations are a stretch beyond what the evidence shows.  Plaintiffs also write, quoting the district court (p.22), that “Trump incited violence ‘by telling the crowd repeatedly to “fight” and to “fight like hell,” to “walk down to the Capitol,” and that they needed to “take back our country’ through ‘strength.”’”  This mash-up of several different phrases in Trump’s speech is a bit misleading.  Trump did, indeed, implore his listeners to “fight like hell” but, standing alone, it’s not clear that he intended to be urging them to “fight” in a literal, violent sense.  He also didn’t say that they “needed to ‘take back our country’ through strength,” a formulation that could have insinuated taking it back through force.  Here’s the full passage from which those words are gleaned:


We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.  Because you’ll never take back our country with weakness.  You have to show strength and you have to be strong.  We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.  I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.


In its full context, those words could easily be construed—or, more to the point, intended—to be urging a showing of “strength” in terms of the numbers of persons who would be gathering at the Capitol to “cheer,” to “demand,” and to “peacefully and patriotically make [their] voices heard.”  No doubt some in the audience, primed to violence, did understand it to be a call to arms.  But Trump shrewdly framed it in terms of showing strength by way of a traditional mass protest at the seat of power, like many famous protests on the Mall and at the Capitol down through the years.  


As Trump argues, it’s not hard to imagine many other contexts in which the Court would be deeply reluctant to find the requisite intent to incite violence under Brandenburg if some other firebrand speaker used analogous language in an impassioned speech on the Mall. 

The plaintiffs also write (quoting the state district court) that Trump “encourage[ed] the crowd that they could play by ‘very different rules’ because of the supposed fraudulent election.”  In context, however, it's fairly clear that in that part of his speech Trump was saying that Mike Pence and Republicans in Congress could play by "very different rules" when it came to counting (or returning to the states) the electoral votes.[7]  

I don't mean to suggest that a fact-finder couldn't reasonably conclude that Trump specifically intended to incite violence in his Ellipse speech.  Moreover, even if Brandenburg applied in this context, it's not settled that such a subjective purpose to incite violence is necessary--knowledge that violence is likely to imminently occur might be enough.[8]  And, of course, it's not at all clear that Section 3 requires the heightened showings that Brandenburg requires before the state can put someone in prison for inciting unlawful violence--perhaps something such as recklessness (which would be easily demonstrated here) would be enough for Section 3 purposes.

In any event, I don't think the Court will have any need to decide these subsidiary questions, let alone whether Trump's speech at the Ellipse itself amounted to "engaging in" the imminent violence it inspired.  What Trump did once the rioters invaded the Capitol is more than enough to settle the question.  Turning to that ... 

During the Violence


Trump’s argument that he didn't "engage in" the Capitol insurrection is far, far weaker when it comes to what he did after 1:21, when he was first informed of the attack; after 1:49, when the D.C. police declared a riot at the Capitol after the mob had overwhelmed police officers, breached barricades, climbed scaffolding, and ascended closer to the Capitol from multiple angles; and, especially, after 2:13, when Vice President Pence was evacuated to his ceremonial Senate office, congressional leadership were evacuated to secure locations, and attackers smashed windows and flooded into the Capitol building.  


By that point, many of Trump’s close staffers were pleading with him to intervene—to coordinate a federal response and to instruct the mob to disperse.  Yet he took no such steps while the violence raged.  To the contrary, his first action was to fan the flames, and encourage the rioters to continue, by tweeting out (at 2:24):  “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify.  USA demands the truth!”  


The most natural reading of that expression by Trump was that the “USA” was “demand[ing] the truth” by means of the violence everyone was witnessing, and that Trump was encouraging the rioters to continue “demanding.”  The tweet had just that intended and foreseeable effect:  Immediately after Trump published it, between 2:25 p.m. and 2:28 p.m., rioters breached the East Rotunda doors and other rioters breached the police line in the Capitol Crypt.  No matter what the Court thinks of Trump’s intent during his remarks on the Ellipse, the Justices will be, and ought to be, hard-pressed to deny that the 2:24 tweet was a deliberate effort to incite a continuation of the violence that was already occurring.  [UPDATE 02/05:  In his reply brief, Trump states (p.16) that the tweet didn't call "for any action whatsoever" and couldn't incite events that "were long underway."  This is a frivolous response.  The tweet was understood by its intended audience as an encouragement to further violence and threats at the Capitol, regardless of whether Trump expressly wrote "keep up the insurrection."]  


Three other things about this same period on the afternoon of January 6th warrant attention, as well.


First, the Colorado Supreme Court found that during this period Trump “did not merely incite the insurrection” but also “direct[ly] participat[ed] in” it, not only by virtue of the Pence tweet, but also by “calling Senators to persuade them to stop the counting of electoral votes.”  Pet App. 100a (¶ 223).  The plaintiffs rely on this fact at pages 23-24 of their brief.  I’m skeptical about whether the evidence supports this particular aspect of the court’s assessment.  The one Senator whom Trump called then was the newly elected Tommy Tuberville of Alabama, at 2:26 p.m.  (Trump misdialed, calling Senator Mike Lee, who passed the phone to Tuberville.)  The House Committee report on the events of January 6—which is the source for the Colorado courts’ finding on this point—states that “President Trump wanted to talk objections to the electoral count.”  Perhaps he did—indeed, it’s likely he did.  But as far as I know the only evidence about the content of the call is Tuberville’s statement that Trump “said a few things”; that Tuberville cut him off by saying “Mr. President, they’ve taken the vice president out; they want me to get off the phone; I gotta go”; and that Tuberville then hung up on Trump.  Whatever Trump might have intended to accomplish in that phone call, I don’t think there’s evidence that the call itself resulted in any “direct participation” in the ongoing insurrection.


Second, in order to show that Trump intended to incite the violence, the Anderson plaintiffs write (Brief at p. 24) that “[w]hen told that the mob was chanting ‘Hang Mike Pence,’ Trump responded that ‘perhaps the Vice President deserved to be hanged.”’  I wouldn’t be surprised in the slightest if Trump did say something such as that—it would have been entirely in character and consistent with everything we know about him—but as far as I’m aware the only evidence of it is hearsay in Cassidy Hutchinson’s testimony to the House January 6 Committee.  (The Colorado Supreme Court cited only the district court, Pet. App. 98a (¶ 218), which in turn cited only the January 6 Committee report, id. 237a (¶ 180), which in turn cited Hutchinson’s deposition.)  Hutchinson testified as follows:


I remember Pat [Cipollone] saying something [to Mark Meadows] to the effect of, “Mark, we need to do something more.  They’re literally calling for the Vice President to be f’ing hung.”  And Mark had responded something to the effect of, “You heard him, Pat.  He thinks Mike deserves it.  He doesn’t think they're doing anything wrong.”


Assuming that’s the sum total of the evidence on this point, it would mean that the basis for this particular indicium of proof of Trump’s intent is Hutchinson’s recollection of a Mark Meadows comment to the “effect” that “[Trump] thinks Mike deserves it.”  That probably wouldn't be admitted in a criminal trial for incitement, but it might at least be relevant to Trump's state of mind on January 6 for the very different purpose of assessing whether he's eligible to hold state or federal office, particularly because (I assume) Trump could have testified before the Colorado district court that he never said any such thing--or called witnesses who might have offered a different account.


Finally, and most importantly, President Trump deliberately chose not to do anything to stop the violence for almost three hours.  Despite the desperate pleas of his advisors, he didn’t contact a single top national security official during the day; didn’t order any of his staff to facilitate a law enforcement response of any sort; and didn’t call for deployment of the National Guard.  


Plaintiffs cite this “abdication” as “potent evidence of Trump’s intent to incite the insurrection—because if he had incited it accidentally, he surely would have tried to stop it” (Br. at 24).  I’m not sure that’s quite right—the fact that Trump was obviously pleased about what he had wrought, and was unwilling to do anything to intervene, doesn’t necessarily mean that he intended to incite violence earlier that day.  Even so, if he had immediately acted to stop the violence, as any other President would have done, that would have helped to dispel any possibility that he had earlier intended to incite it, and the absence of such a response therefore is relevant evidence, potent or not, that at a minimum is consistent with an intent to incite violence.  


What's more, such inaction might itself have been a form of aiding and abetting the violent insurrection.  It’s true, of course, that inaction in the face of criminal conduct does not ordinarily amount to aiding that conduct.  But failing to perform a legal duty to try to interdict the crime because one supports the conduct can amount to complicit assistance—think, for example, of the bank guard who turns the other cheek in order to permit the robbery to succeed.  And here, Trump arguably violated his constitutional duty to “take Care that the Laws be faithfully executed,” art. II, § 3, when he declined to take any steps within his power to stem the riot.  (Baude and Paulsen argue to similar effect at pages 120-121 of their draft article.). [UPDATE 02/05:  In footnote 31 of his reply brief, Trump argues that his inaction is a "judicially unreviewable exercise[] of the President's law-enforcement discretion.  That's a non sequitur.  No on'e asking the Court to reverse or enjoin presidential inaction from three years ago.  The relevance of the inaction is merely to shed light on Trump's intent and (potentially) to establish that he abetted the violence by failing to perform a duty.]


In light of the 2:24 tweet and Trump’s deliberate refusal to exercise his powers to stop the violence, I think it would be very difficult for the Court to credibly overturn the state courts’ determination that Trump “engaged in” the Capitol violence—by inciting it and/or abetting it—after 2:00 p.m., even if the Court concludes that there is insufficient proof of Trump’s intent to incite violence (as opposed to peaceful protest) in his speech at the Ellipse.  

* * * *

Complete series of my posts on Trump v. Anderson:


[1] This case does not involve any allegation that Trump did one of the other two things that trigger ineligibility under Section 3 of the Fourteenth Amendment—engage in a “rebellion” against the U.S. or give “aid or comfort” to enemies of the United States.  The plaintiffs probably decided, with good reason, that the evidence wouldn't support such claims.  As to the application of the “aid or comfort” clause, see, e.g.The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (“[T]he last part applies to foreign war.  The words giving aid and comfort to the enemies of the United States, are the same used in the constitutional definition of treason, and the enemies there meant must be taken to be foreign enemies.”); accord United States v. Greathouse, 26 F. Cas. 18, 22 (C.C.N.D. Cal. 1863).  See generally Section I-D-2 of Myles Lynch's article.


[2] To be clear:  I don’t have any inside information on this; I'm merely speculating. 

[3] My fellow blogger Mark Graber has filed an amicus brief in which he argues that there was a “consensus” in the Nineteenth Century about the meaning of the term “insurrection.”  I’m considerably less certain than Mark about whether there was any such consensus, particularly because most of Mark’s examples involved decisions about whether particular conduct amounted to “treason” ("levying war" on the U.S., in particular) rather than “insurrection,” and even on that question there remained disputes among jurists and commentators about the circumstances under which a violent resistance to the execution of a law amounted to “levying war” on the nation (including doubts raised by Justice Grier in the Hanway jury charge that Mark cites).  See Willard Hurst, Treason in the United States, 56 Harv. L. Rev. 806 (1945).  (In this case, notably, no one has suggested that the perpetrators of the violence on January 6, 2021, let alone Donald Trump, were guilty of a treasonous levying of war on the United States, though that would appear to be one possible implication of Mark’s account of the Nineteenth Century law.)  

Fortunately, this is a topic we can hash out some other day.  There’s no need for Mark and I, let alone for the Court, to work through these complex historical questions now, because Trump is no longer contesting whether the violence on January 6 amounted to an “insurrection.”


[4] See, e.g., 10 U.S.C. § 251 (“Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.”).


[5] In the Colorado Supreme Court, Trump argued in addition that even if he did incite an insurrection, incitement does not constitute engaging in the insurrection.  In support of this argument, Trump noted that just four years before it drafted Section 3, Congress enacted a criminal statute concerning insurrection—Section 2 of the Second Confiscation Act, the current version of which is found as 18 U.S.C. § 2383—that specifically distinguished “engaging in” insurrection from inciting it, setting it “on foot,” and aiding it.  “Congress knew at the time it passed Section Three,” Trump argued in Colorado, “that to ‘incite’ an insurrection was a different activity than to ‘engage’ in an insurrection, and courts ‘presume that Congress is knowledgeable about exiting law pertinent to the legislation it enacts.’”  An expanded version of this argument appears in Part I-A of the amicus brieffiled by the James Madison Center for Free Speech.  As I read Trump’s brief, however, he is no longer relying upon this argument, perhaps because Attorney General Stanberry publicly opined in 1867, while the states were considering whether to ratify the Fourteenth Amendment, that “when a person has, by speech or by writing, incited others to engage in rebellion, [h]e must come under the disqualification.”  The Reconstruction Acts, 12 Op. Att’y Gen. 182, 205 (1867).  (Stanberry’s statement was about inciting rebellion, but there’s no reason to think the construction of “engaged in rebellion” should differ from the construction of “engaged in insurrection” in this respect.) 


[6]  Trump didn’t send tweets “throughout the day” instructing his supporters to “remain peaceful” and “[s]tay peaceful.”  He sent two tweets with those references at 2:38 and 3:13 p.m., hours after the violence began.  And the video telling the crowd “to go home now” wasn’t released until 4:17 p.m., after the damage already was done.  Before those tardy actions, Trump ignored the increasingly desperate pleas of his aides to take action to stop the violence.


[7] Here’s the pertinent passage of the speech (emphasis added):


The Republicans have to get tougher.  You’re not going to have a Republican Party if you don’t get tougher.  They want to play so straight.  They want to play so, sir, yes, the United States. “The Constitution doesn’t allow me to send them back to the States.”  Well, I say, yes it does, because the Constitution says you have to protect our country and you have to protect our Constitution, and you can’t vote on fraud.  And fraud breaks up everything, doesn’t it?  When you catch somebody in a fraud, you’re allowed to go by very different rules.  So I hope Mike has the courage to do what he has to do.  And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.

 [8] The Court’s decision last Term in Counterman v. Colorado has raised a question about the nature of the scienter showing that must be made to satisfy Brandenburg’s intent prong.  At one point in her opinion for the Court, Justice Kagan wrote that the First Amendment “precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”  600 U.S. at 76 (quoting Hess, 414 U.S. at 109).  Shortly thereafter, however, she wrote that “[w]hen incitement is at issue, we have spoken in terms of specific intent, presumably equivalent to purpose or knowledge.  Id. at 81 (citing the same page of Hess) (emphasis added).  The Court will probably be disinclined to address this Brandenburg mens rea question in this case, let alone to decide what the precise state of mind must be shown for purposes of Section 3 of the Fourteenth Amendment (as opposed to punishment).

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