Trumpworld also challenged the disqualification by arguing that the former president has not been convicted of rebellion, insurrection, or any ancillary offenses. In their brief for the court, Trump’s lawyers go even further to argue he did nothing wrong on January 6. “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,” they told the justices. “And for good reason: President Trump’s words that day called for peaceful and patriotic protest and respect for law and order.”
This may be the most palatable grounds for the Supreme Court to reject disqualification, even though it is a highly flawed one. The clause’s text does not require conviction and nearly every ex-Confederate was disqualified without legal proceedings. Neither Jefferson Davis nor Robert E. Lee, the two most prominent leaders of the rebellion, ever faced trial for leading a violent uprising that killed hundreds of thousands of Americans. One of the most direct rebuttals to Trumpworld’s claims comes from a group of Capitol Police officers, who filed a brief to urge the court to not accept that argument or a similar First Amendment one. They emphasized the reality of what Trump and his allies stoked three years ago.
“Mr. Trump’s January 6 speech bears all the hallmarks of incitement,” they argued. “Starting with the lead-up to January 6, Mr. Trump had already stoked feelings of distrust and anger among his supporters with respect to the legitimacy of the 2020 presidential election. Before and after the 2020 election, Mr. Trump told his supporters that the only way he could lose ‘is if the election is rigged.’ He claimed that Democrats had stolen the election from him, and that the results were ‘a fraud on the American public.’ It is against this backdrop that Mr. Trump invited his followers to Washington, D.C., on January 6, exhorting them to ‘be there’ because it ‘will be wild.’”