The Colorado Supreme Court’s decision to keep former President Donald Trump off the Colorado presidential ballot in 2024 is inconsistent with critical facts in the timeline of events that occurred on January 6, 2021, in Washington, D.C. The Court’s conclusion that Trump incited an insurrection is largely based on words that Trump spoke after the barricades at the Capitol were first breached.
In Anderson v. Griswold, the Court ruled that Trump engaged in insurrection, largely basing its decision on the phrase in Trump’s January 6 speech in which he said “fight, we fight like hell.” Although the Court gave other reasons, the Court made it clear that this phrase was a significant reason for its decision. The Court stated on page five, “President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.” On page 10, the Court said the following:
In his speech, which began around noon, President Trump persisted in rejecting the election results, telling his supporters that … if they did not “fight like hell, [they would] not … have a country anymore.” Before his speech ended, portions of the crowd began moving toward the Capitol.
In the section beginning on page 96 entitled “President Trump Engaged in Insurrection,” the Court stated on page 101: “And upon breaching the Capitol, the mob immediately pursued its intended target — the certification of the presidential election — and reached the House and Senate chambers within minutes of entering the building.” On page 102, the Court stated that “soon after breaching the Capitol, the mob reached the House and Senate chambers.” On page 106, the Court stated that Trump engaged in “insurrection by acting overtly and voluntarily with the intent of aiding or furthering the insurrectionists’ common unlawful purpose.” On page 111, the Court noted that Trump gave his speech at “the Ellipse.” On pages 111-112, the Court wrote:
President Trump then gave a speech in which he literally exhorted his supporters to fight at the Capitol. Among other things, he told the crowd … “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
The “fight” phrase was critical for the Court. On page 116, the Court stated that Trump “exhorted the insurrectionists” “to fight.”
On page 124, the Court relied upon testimony by a sociology professor who was “an expert in political extremism” who testified in the district (trial) court:
that (1) “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability” … and that (2) “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence’ to develop and deploy a shared coded language with his violent supporters.”
On pages 125-126, the Court approvingly cited the district court’s conclusion that Trump’s “fight” phrase was “incendiary”:
The district court then identified specific incendiary language in President Trump’s speech at the Ellipse on January 6 … President Trump announced, “we’re going to walk down, and I’ll be with you, we’re going to walk down … to the Capitol” … He “used the word ‘fight’ … (“And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”) … In short, the district court found that President Trump’s speech at the Ellipse “was understood by a portion of the crowd as, a call to arms.”
On pages 127-128, the Court stated:
The fact that, at one point during his speech, President Trump said that “everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard” does not persuade us that the district court erred … This isolated reference “cannot inoculate [President Trump] against the conclusion that his exhortation, made nearly an hour later, to ‘fight like hell’ immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression.
The Court continued to focus on Trump’s “fight” phrase on pages 128-130 & 132. Trump said the phrase “fight, we fight like hell,” only once and the Court never quoted the phrase in context. Here is the paragraph of the speech in which the phrase appears:
Our brightest days are before us. Our greatest achievements still wait. I think one of our great achievements will be election security, because nobody, until I came along, had any idea how corrupt our elections were. And again, most people would stand there at 9 o’clock in the evening and say, “I want to thank you very much,” and they go off to some other life. But I said something is wrong here, something is really wrong, can’t have happened, and we fight. We fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.
Based largely on Trump’s “fight” phrase, the Colorado district court judge concluded that Trump engaged in insurrection, as seen on pages 43 & 45-46 of her decision.
Trump begins his speech at 3:28:45 in this video, with the paragraph quoted above coming at 4:41 in the video. Trump’s speech ends two minutes later. A time-stamped video of his speech is here.
Trump’s speech began at noon local time and ended at 1:12 p.m. and was delivered from the Ellipse across the street from the south lawn of the White House. From the location of the speech to the Capitol is a little more than a mile and a half. The barricades at the Capitol were first breached at 1:00 p.m. Because the phrase “fight, we fight like hell” was spoken by Trump two minutes before the speech ended at 1:12 p.m., he spoke the phrase at 1:10 p.m. Given that the barricades were first breached at 1:00 p.m., and Trump’s delivery of the “fight” phrase took place at 1:10 p.m., Trump’s speech could not have caused the breach of the barricades.
Although the loudspeaker system was massive, it is highly doubtful that the people breaching the barricades could hear Trump from the loudspeaker system, and neither the district court nor the Colorado Supreme Court provide any evidence that anybody who breached the barricades were listening to Trump’s speech. The Colorado Supreme Court does not provide any evidence that the “fight” phrase was transmitted by text messages or otherwise to people at the Capitol building.
The Colorado Supreme Court does not tell us who was incited to breach the barricades at the Capitol by Trump’s phrase “fight, we fight like hell.” Where is the evidence that those who breached the barricades were incited to do it by that part of Trump’s speech? Where is the evidence that those who were inside the Capitol building were incited to stay there by that part of Trump’s speech? The Colorado Supreme Court largely based its opinion on Trump’s phrase “fight, we fight like hell” when that phrase could not have caused the breach of the barricades. Moreover, there is no evidence cited showing that the phrase was communicated to anybody who thereafter committed illegal activity on January 6, 2021.
Trump’s recent Petition for Certiorari to the United States Supreme Court does not discuss the timeline issue.
READ MORE on Jan. 6:
The Law of Conspiracy: Its Use and Abuse Against Trump
The Left Has Plenty More Reasons to Indict Trump
Jan. 6: Bad Advice Has Bad Consequences
Allan J. Favish is an attorney in Los Angeles.
