The Facts Matter, Trials Matter, The Record Matters

[Note:  This is the ninth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first eight essays can be found here, here, here, here, here, here, here, and here.]

A question regularly raised about our interpretation and explication of Section Three is how its rules might bear on various different factual patterns, real or imagined. Does conduct of a particular description, in a specific set of circumstances, on its own unique facts, constitutes having "engaged in" "insurrection or rebellion" within the meaning of the Constitution?  What about this situation?  What about this one?

Accepting as given our account of Section Three's terms – "insurrection," "rebellion," "engaged in," "aid or comfort to" – folks frequently ask how these legal definitions and standards apply to a variety of real or hypothesized situations.  Our answer is that the facts matter.  Further, the determination of what the facts are is by and large committed to the legal process – the record amassed at trial and the ensuing judgment of the trier of fact.

As we put it in our forthcoming article, The Force and Sweep of Section Three, it "is not for us to say who all is disqualified by virtue of Section Three's constitutional rule."  (Ms. at 126).

That is the duty and responsibility of many officials, administrators, legislators, and judges throughout the country.  Where they are called on to decide eligibility to office, they are called on to enforce Section Three, applying the Constitution's legal standard to the facts before them in a given instance.

The point is worth repeating, sharpening, and emphasizing:  whether and precisely how the legal standards of Section Three apply in particular cases are matters to be determined in the usual manner that questions of how the law applies to a particular set of facts are determined.  They are decided by the usual legal processes of a civil trial in which a trier of fact – a judge or a jury, depending on the type of case and in some circumstances the choices of the parties – determines what the true facts are, when there is a genuine dispute over facts material to how the relevant legal standard applies.

In Trump v. Anderson, the Section Three case pending before the Supreme Court, it is important that there has been a full five-day trial of the facts in the Colorado courts. That trial process culminated in detailed findings of fact, made by a Colorado state court judge sitting as the trier of fact.  The Colorado Supreme Court held that the trial complied with the requirements of Colorado state law and provided due process of law.

The parties disagreed as to exactly what occurred; what the true facts were; whether Donald Trump engaged in specific intentional conduct; what his motives, signals, behavior, and intentions were; what he did or failed to do; whether Trump's statements to supporters genuinely sought to encourage "peaceful and patriotic protest and respect for law and order" (as his brief in the U.S. Supreme Court asserts (at p. 33)) or were designed to signal other messages and objectives; and many other factual matters of this type.  The trial court judge heard extensive factual testimony and argument over these matters of disputed fact, assessed the evidence, and made detailed findings of fact concerning what the evidence led her to conclude about these matters.

This, we think, provides great focus to the legal questions at issue before the Supreme Court. In light of the record before the trial court and the court's findings, it is hard to say that Trump did not engage in the conduct alleged; or that he lacked knowledge or purpose. The trial judge assessed the evidence and reached certain conclusions of fact.  Even if one might be able to imagine a different story about the facts, the evidence presented to the court, and the factfinder's conclusions about them, establish the relevant boundaries of what is fairly open to dispute as a matter of legal process.  The ultimate questions of constitutional law – whether Section Three's rule remains legally operative; whether Section Three has immediate self-executing force by virtue of its enactment as part of the Fourteenth Amendment; the meaning of the terms "insurrection or rebellion" and "engaged in" and other terms contained in Section Three; and whether the conduct that Trump engaged in (established as a matter of fact) falls within the legal meaning of "insurrection or rebellion" under Section Three – remain questions of law for the Court.  But the subsidiary, antecedent questions of fact – whether Trump did (and failed to do) what he is alleged to have done (and failed to do) – have already been determined.  They were decided by a trial.

In other words, questions of "law" are for judges to decide, and appellate courts review the legal rulings of lower courts for their legal correctness, typically without deference to the legal ruling of the lower court.  The law is the law.  But questions of "fact" are for the jury or the judge, sitting as the "trier of fact," to decide, and appellate courts are generally obliged to accept the determinations of the trier of fact on questions of fact.  This includes such matters as which side in a dispute is believed to be telling the truth; which side of a dispute the evidence better or more persuasively supports; which expert's testimony is to be credited as a more reliable assessment; what actually occurred as a matter of fact; even what the motives or purposes of a party were.  The task of the trier of fact in our legal system is to resolve factual disputes where there is uncertainty or disagreement as to what the true facts are.

To be sure, there are many cases in between these two concepts, where the characterization of a particular question as being one of "fact" versus "law" may be uncertain or arguable.  Often an issue involves a "mixed" question of law and fact.  Further, the Supreme Court has also described a special rule in some areas of constitutional law (such as First Amendment limitations on liability for defamation) where an appellate court should make an "independent examination of the whole record" to assure that the Constitution have been faithfully applied. Even in such situations, however, a reviewing court typically will not "second-guess the [trial judge] on the credibility of witnesses."  And importantly, any review remains bounded by the record amassed at trial.

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Thus while many people may have their own instincts about, or interpretations of, the events leading up to and on January 6, for legal purposes it is essential to start with the trial court's extensive and detailed findings of fact.

The trial court examined at length the language and context of President Trump's speech, and found, as facts, that Trump's language calling on his supporters to "fight" were, in context, "literal calls to violence" and would be understood by his audience that way, and that his statements purporting to negate such an intention "were insincere and existed to obfuscate and create plausible deniability."  (Trial court decision at ¶¶84, 85.)  The court found that Trump engaged in an extended pattern of deliberately false statements alleging widespread vote fraud, ¶¶87-99, and that Trump "knew his claims of voter fraud were false."  ¶100.  The court found that extremist groups and individuals supporting Trump understood Trump's statements as endorsements of political violence to overturn the result of the election.  ¶¶105, 109.  The court found specifically that "on December 19, 2020, when Trump tweeted 'Statistically impossible to have lost the 2020 Election.  Big Protest in D.C. on January 6.  Be there, will be wild!' he knew he had lost the election, and he knew there was no basis for Vice President Pence to reject the States' lawfully certified electors."  ¶115.  The court found that Trump sought to focus his supporters' anger over what Trump was saying was a stolen election on the January 6, 2021 session of Congress.  "The message he sent was that to save democracy, his supporters needed to stop the January 6, 2021 joint session."  ¶116. The court found as facts that Trump continued to stoke supporters' anger over false claims of widespread election fraud between December 19 and January 6, that federal law enforcement agencies expressed grave concern that the assembled crowd would be disposed to violence, and that Trump did not advise law enforcement agencies of his intention "to instruct the crowd to march to the Capitol" and that, as a result, law enforcement was not prepared for the crowd that descended on the Capitol.  ¶¶117-125.

The court also found as fact that "prior to the January 6, 2021 rally, Trump knew his supporters were angry and prepared to use violence to 'stop the steal' including physically preventing Vice President Pence from certifying the election.  In fact, Trump did everything in his power to fuel that anger with claims he knew were false about having won the election and with claims he knew were false that Vice President Pence could hand him the election."  ¶128.  The court found that many of the attendees at Trump's speech at the Ellipse on January 6 possessed knives, pepper spray, tasers, and body armor, that some of the attendees were armed, and that Trump was aware of the risk of violence and that the crowd was angry and armed.  ¶¶129-135.  The court collected a large number of statements in Trump's speech at the Ellipse on January 6, ¶135, and found that Trump called on the crowd to march to the Capitol, and that crowd reacted with shouted statements of "storm the Capitol!", "invade the Capitol building!", and "take the Capitol!".  ¶141.  (Among many other things, the trial court also credited the expert testimony of Professor Peter Simi on political violence and extremism, and agreed with Professor Simi's analysis that Trump's relationship and communications with supporters and with extremist groups had generated a shared understanding about the violent nature of some of his otherwise potentially ambiguous statements.  (¶¶61-83, 142))

The trial court's findings included both the effects of Trump's speech on the crowd and Trump's intentions with respect to the subsequent violent assault on the Capitol: "The court finds that Trump's Ellipse speech incited imminent lawless violence."  ¶144.  Further, in the overall context of Trump's false claims of election fraud and other statements concerning the need to save democracy and his encouragement of political violence by his supporters, "The Court finds that the call to 'fight' and 'fight like hell' was intended as, and was understood by a portion of the crowd as, a call to arms.  The Court further finds, based on the testimony and documentary evidence presented, that Trump's conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the Capitol."  ¶145.  The trial court made extensive findings of fact about the actions of the mob in attacking the Capitol, and the series of events that transpired. ¶¶146-160, 162-168. The court found as fact that "by sending otherwise non-violent protesters to the Capitol thereby increasing the mob's numbers through his actions and words, Trump materially aided the attack on the Capitol."  ¶161.

The trial court found that, after Trump was aware of the attack on the Capitol, of Vice President Pence's public statement that he would not refuse to count certified votes of electors, and of members of the crowd chanting "hang Mike Pence," Trump tweeted at 2:24 P.M. that "'Mike Pence did not 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 previously to certify.  USA demands the truth!'" ¶170.  The trial court further held that "Trump's 2:24 p.m. tweet caused further violence at the Capitol."  ¶173. The trial court made numerous findings of fact concerning the violence that occurred in the course of the assault on the Capitol.  ¶¶174-179.

The court found that Trump sent tweets at 2:35 p.m. and 3:13 p.m. encouraging the mob to "remain peaceful" and "[s]tay peaceful" and not harm law enforcement officers, but that neither of these messages "condemned the ongoing violence or told the mob to retreat."  ¶178.  The court found that aside from these three tweets (at 2:24, 2:35, and 3:13), "Trump did nothing between being informed of the attack at 1:21 p.m. and 4:17 p.m." to intervene to stop the attack, despite pleas from others that he do so.  ¶180.  Instead, Trump called Senators and urged them to delay the vote certification, responded to concerns expressed that those involved in the attack were saying they wished to "hang Mike Pence" by saying that Pence perhaps deserved to be hanged, and responded to Republican House Leader McCarthy's pleas that Trump call on his supporters to withdraw from the Capitol by saying "'Well, Kevin, I guess these people are more upset about the election than you are.'" ¶180.

The trial court made extensive findings of fact concerning National Guard and Homeland Security resources and personnel available to President Trump that could have been deployed by Trump after learning of the attack and found that there was no evidence Trump took any steps to deploy such resources.  ¶¶ 181-184.  The court found that Trump "had the authority to call in reinforcements on January 6, 2021, but chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021."  ¶185.

The trial court found that at 4:17 p.m. Trump "called off the attack" in a video message.  The court quoted the message at length and found that, in the message, Trump "endorsed the actions of the mob in trying to stop the peaceful transfer of power."  ¶187.  The message "did not condemn the mob but instead sympathized with them and praised them" before instructing them to go home, "emphasizing to the mob that this was an order to be followed."  Id.  The trial court found that a later message from Trump at 6:01 p.m. "justified violence" by calling the attackers "'patriots'" and affirming "the falsehood that justified the attack in the first place," that Trump had won a landslide victory and that the election had been stolen from him.  ¶¶189-190.  The court found that this constituted "further proof of Trump's intent to disrupt the election certification on January 6, 2021."  ¶192.

With respect to Trump's motive and state of mind, the court found that the evidence further supported the conclusion that "Trump endorsed and intended the actions of the mob on January 6, 2021."  ¶193.  In the section of its opinion setting forth conclusions of law, the trial court, drawing on its factual findings, stated as follows:

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification.  Trump cultivated a culture that embraced political violence through his consistent endorsement of the same.  He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud.  He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification until roughly three hours had passed, at which point he called for dispersal, but not without praising the mob and again endorsing the use of political violence.  The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it, and, on January 6, 2021, incited it.  His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021.

¶¶293, 294

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In light of the trial record and these findings of fact, the assertions made in Trump's brief (p.33) that Trump "called for peaceful and patriotic protest and respect for law and order" and that "nothing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as 'insurrection'" cannot be taken at face value. They are contrary to the facts found at trial based on the record amassed at trial, and it would be extraordinary for the Supreme Court to unilaterally impose its own factual conclusions at this juncture.

In our forthcoming article, The Sweep and Force of Section Three, we were careful to qualify our conclusion that Trump's conduct falls within the description of Section Three, because there had not yet been any trial and Trump had not had an opportunity to present evidence rebutting the public record and have that evidence assessed by a trier of fact.  We say in that article that "[t]he case for disqualification is strong" that there "is abundant evidence" that Trump set out to overthrow the result of the 2020 election by force or fraud, in a variety of ways  and that, "[i]f the public record is accurate" that "the case is not even close" that Trump clearly "'engaged in' 'insurrection or rebellion' and gave 'aid or comfort' to others engaging in such conduct, within the original meaning of Section Three of the Fourteenth Amendment" (Ms. at 118-121).

In light of the record presented, and the facts found, at trial, there is little need for qualification on this score.  Based on the factual record established in the Trump v. Anderson litigation and the findings of the trier of fact, the conclusion that Trump engaged in the conduct for which Section Three imposes a constitutional disqualification from office should be taken as firmly established.