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Why the 14th Amendment Cannot Be Used to Dump Trump

By Roger E. Bissell

January 25, 2024

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An Open Letter to the Justices of the United States Supreme Court

 

Dear Chief Justice Roberts and Justices Thomas, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett:

It is with the utmost respect and sincerity that I ask you to consider my argument that the 14th Amendment to the U.S. Constitution cannot be used in those court cases attempting to bar former president Donald John Trump from the primary and general election ballots this year. I argue that Mr.  Trump did not engage in insurrection or even in giving “aid and comfort” to anyone who did.

The relevant section of Amendment 14—Section 3—reads:

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.

Colorado District Judge Sarah Wallace, in her ruling, stated that Mr.  Trump had “actively primed the anger of his extremist supporters,” and “acted with the specific intent to incite political violence and direct it at the Capitol.” But is this true? Did he engage in “incendiary rhetoric” that was “likely to incite imminent lawlessness and disorder”?

It all seems to hinge on his use of the phrase “fight like hell.”

It all seems to hinge on his use of the phrase “fight like hell,” which he indeed did urge people at his rally to go to the Capitol and do. But in the context of his speech, it is far from obvious that he intended for them to break the law and cause damage or injury or disruption of the Congress’s proceedings. Consider this: in the course of his lengthy speech, you will note the following:

  1. In praising Rudy Giuliani, Mr. Trump said: “you did a great job. He’s got guts. You know what? He’s got guts, unlike a lot of people in the Republican Party. He’s got guts. He fights. He fights, and I’ll tell you.”
  2. In speaking of the Congress, Mr. Trump said: “There’s so many weak We have great ones, Jim Jordan, and some of these guys. They’re out there fighting. The House guys are fighting, but it’s incredible.”
  3. In speaking of the “weak Republicans,” Mr. Trump said: “Did you see the other day where Joe Biden said, ‘I want to get rid of the America First policy’? What’s that all about, get rid of—how do you say, ‘I want to get rid of America First’? Even if you’re going to do it, don’t talk about it, right? Unbelievable, what we have to go through, what we have to go through, and you have to get your people to fight. And if they don’t fight, we have to primary the hell out of the ones that don’t fight. You primary them. We’re going to let you know who they are.”
  4. Speaking of the Republicans, Mr. Trump said: “Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer, and we want to be so nice. We want to be so respectful of everybody including bad people. And we’re going to have to fight much harder, and Mike Pence is going to have to come through for us. And if he doesn’t that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down—and I’ll be there with you—we’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going 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.”
  5. Speaking of Congress, Mr. Trump said: “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.”
  6. About the election, Mr. Trump said: “everybody had us down for a victory. It was going to be great. And now we’re out here fighting.”
  7. Speaking of the Georgia special Senate elections, President Trump said: “Kelly Loeffler, David Perdue. They fought a good race.”
  8. Speaking of the news media, Mr. Trump said: “The American people do not believe the corrupt fake news anymore. They have ruined their reputation. But it used to be that they’d argue with me, I’d fight. So I’d fight, they’d fight. I’d fight, they’d fight….You know, they had their point of view, I had my point of view, but you’d have an argument. Now what they do is they go silent. It’s called suppression. It’s what they do in a communist country. That’s what they do, they suppress. You don’t fight them with anymore. Unless it’s a bad story.”
  9. Speaking of the Supreme Court, Mr. Trump said: “I’m not happy with the Supreme Court. They love to rule against me. I picked three people. I fought like hell for them; one, in particular, I fought for. They all said, ‘Sir, cut him loose. He’s killing us.’ The senators, you know, very loyal senators. They’re very loyal people…”
  10. Speaking of his political opposition, Mr.  Trump said: “…our fight against the big donors, big media, big tech, and others is just getting started.”
  11. Speaking of what he wanted the people at the rally to do, Mr. Trump said: “And we fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore…So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capital…and we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.”

 

You will see more than a dozen instances of the word “fight” or “fought” and in a number of contexts, not just January 6. “Fight” is certainly a word that Mr.  Trump likes to use.

Now, when you look back through the underscored and bolded portions of those comments, you will see more than a dozen instances of the word “fight” or “fought” and in a number of contexts, not just January 6. “Fight” is certainly a word that Mr.  Trump likes to use. But what do you not see? Not one single instance of Mr. Trump urging the people at his rally to engage in trespassing and breaking and entering and violence. Not one. It’s all various forms of praising people for, talking of the need to, or encouraging people to, stand up for what they think is right and not be polite and “nice” about it. To be strong and insistent. To be bold and proud. Not to be violent or to break the law. To be peaceful and patriotic.

It’s clear therefore, given the precedents, Mr. Trump did not give “aid and comfort” to any of those in the crowd who might have had criminal intent, and he did not cause them to engage in the lawless behavior that any of them ended up doing. He just advocated what he has always advocated—and exemplified in his own words and behavior. He fights for what he believes is right, and he wants others to do so, too. But not to break the law—let alone to engage in insurrection against the United States.

I urge you to reject each and every election ballot challenge that is premised on the unfounded claim that Mr. Trump committed or aided/abetted insurrection. He engaged in free speech advocating public demonstration of one’s dissatisfaction of the outcome of an election he and they thought had been conducted improperly. Mr. Trump should not be blamed or punished for the excesses of those who either misinterpreted him or took lawless action of their own free will.

Thank you for considering my thoughts.

Sincerely,

 
 
 
Roger E. Bissell

Dickson, Tennessee

 

 

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