“Fight Like Hell!”

Example 1: “An increase in the sales tax on retail goods from 6 to 6.25% is a burden that will hurt lower-income folks who already pay a disproportionate share of this regressive tax. We need to fight like hell to stop HR1227 from passing through the legislature and landing on the governor’s desk!”

Example 2: “We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”

Yesterday afternoon’s oral arguments before the Colorado Supreme Court were an entertaining interplay of verbal swordsmanship. Attorneys for both sides launched into grandstanding speeches only to be cut short by justices poking holes in their every argument. There were humorous moments too, but even the veneer of mirth hid an edge of steel.

Trump’s lawyer impressed me with his ability to think on his feet and spout absurdity with confidence. He played a masterful game with poor cards and earned every penny of his fee through convincing advocacy of opinions I’d never be able to say with a straight face.

The best example I can think of was when this attorney was asked, if were to concede that the January 6 riot was an insurrection under the Disqualification Clause, could Donald Trump’s exhortation of violent rhetoric at the Elipse beforehand be considered incitement or engagement with that insurrection?

The lawyer minimized the issue down to Trump’s exhortation to “fight like hell,” then confidently stated that context didn’t matter.

His claim was that, if it’s permissible to ask people to “fight like hell” in any political discourse, it should be all right in every political discourse. Whether you’re talking to a group of volunteers painting signs or to an armed mob you’ve assembled to march on the Capitol, it’s all just words.

After quoting 19th-Century dictionary definitions of “insurrection,” legislative debates on the drafting of the 14th Amendment, and contemporary newspaper articles about Confederate leaders running for office, after arguing exhaustively that an “office in the United States” was different from an “office under the United States,” after counting the number of times a given word or phrase was used in the U.S. Constitution, this lawyer was able to shift gears and say with a straight face that context didn’t matter in political discourse.

His mental gymnastics were amazing! And it’s a tough statement to counter-argue. If your side believes that context matters, you may need days of testimony to paint a sufficiently detailed picture. But if you’re arguing that context doesn’t matter, all you need to do is wave your hand!

So far, only the court in Anderson passed the threshold issues, examined the evidence, and concluded that January 6 was an insurrection and that Trump was an insurrectionist.

The Castro case in Arizona turned on the issue of standing, with a finding that Mr. Castro was not the right person to bring such a case.

The Growe case in Minnesota relied on ripeness, laying the issue aside until the General Election.

The LaBrant case in Michigan ruled on the justiciability of the issue, finding the court unqualified to opine either way.

On appeal, in the absence of blatant error or violation of discretion, deference is given to the fact-finder. So Trump’s argument on appeal is focused on whether the law was applied properly to the facts.

Trump isn’t looking to overturn the facts, but to recontextualize them into dicta, an opinion of the court with no precedential value. That’s the context that matters to their case, the metacontext by which the case applies to other cases, and the issue on which they are most willing to “fight like hell.”

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