Seditionville
If January 6, 2021 wasn’t insurrection, what is ‘insurrection?’
January 2
Witnessing the pasta sticking-like verbal onslaught of the Trump defense attempt to request dismissal of criminal charges in the Chutkan January 6 trial, formerly scheduled to begin March 4, one grasps that terminology is key: according to Trump defense position papers, claiming that an ‘insurrection’ occurred January 6 is ‘judicial overreach’, ‘corruptly’ is ‘in the eyes of the beholder,’ and ‘obstruction,’ is destroying stuff, not beating a downed Capital Police officer with a fire extinguisher. (1)
No, Trump didn’t hire the buses to transport protestors January 6 to the Ellipse. No, Trump doesn’t do “mobs,” what he calls “rallies.” Metaphorically speaking, according to his defense team, that should be sufficient to let candidate Trump off the hook. Certainly until November 4, 2024, when, to be sure, he can self-pardon/dismiss/delay/interfere with an American election… again.
This time, rest assured, will be ‘different.’
January 3
Consider that “Round One” in this latest US Supreme Court saga centers on “insurrection” with no definitive outcome except further delay as the January 6 Criminal Case is paused pending the DC Appeals Court parsing of ‘absolute immunity.”
Consider that “Round Two” will center on Trump’s violation of the Oath of Office and abandonment of the Constitution: in other words, as one judge described the Trump’s January 6 defense, litigating a “coup in search of a legal theory.’ (2)
In this week’s appeal filing to dismiss the January 6 criminal charges, Trump’s lawyers are arguing “double jeopardy,” citing the second Senate impeachment hearing. But ‘double jeopardy’ applies to criminal charges, not to impeachment as they propose. A Senate vote to impeach is not a criminal trial to convict. (3)
However, we’re not done yet: other Constitutional issues besides “double jeopardy,” evoke challenges for Special Counsel Jack Smith and the prosecutors as they prepare instructions for the jury, (4)
Consider the handling of evidence of the January 6 sedition. Why, Trump’s defense argues, has the case of insurrection proceeded without any (Trump) convictions? Perhaps, the defense proposes,’ because ‘there is no there, there.’ Because, if there is no evidence of insurrections, nor convictions after three years, presumably there is none.
But how can there be, as Trump’s allies both in and out of Congress, have obstructed evidence? Which brings us to the immunity claim and the core of their argument that Trump even if he did participate in the January 6 ‘insurrection,’ is immune as acting President which excludes him from prosecution, a claim the defense has made repeatedly in obstructing the release of documents and exculpatory evidence.
Pass the Parmesan.
Another brush with the insurrection claim surfaced in December during civil proceedings to remove Trump’s name from the 2024 ballot in multiple states. Triggering interest in the state ballot decision was a law review article, a pre-publication draft of which was released this summer. The article made the case,
“…that Section 3 (the fourteenth Amendment) disqualifies Trump from the Presidency. Law reviews rarely make news, but this one did — not only because of its careful reasoning but because its two authors, William Baude and Michael Stokes Paulsen, are well-known conservative jurists. Both are members of the Federalist Society, which interprets the Constitution through an originalist lens; their jurisprudence derives from what they see as the intent of the Framers, based on both a semantic and historical analysis of the text.
“There are two main conclusions that Baude and Paulsen reach. First, January 6th was an insurrection — shorter in duration than the Civil War, obviously, but with no less of an intent to subvert the constitutional order. Second, because Donald Trump took an oath to preserve and protect the Constitution when he was sworn into office in 2017, and because Section 3 explicitly disqualifies any insurrectionist who has taken such an oath, it applies to Trump. They write that, whatever one calls January 6th, “such conduct is covered by Section Three, and is disqualifying.” The fact that a law has not been dusted off in decades, they note, does not render it moot: “The First Amendment is old too, as is the entire original Constitution. But both remain in force.” (5)
In an expertly researched article in The New Yorker, Sue Halpern reviews the Republican Party argument in the Colorado ballot appeal:
“Perhaps the most powerful objection to using Section 3 to keep Trump off the ballot is that it is undemocratic to prevent the American people from voting for the candidate of their choice. This is the position of another prominent conservative jurist, Michael W. McConnell. “We are talking about empowering partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice,” McConnell has said. “If abused, this is profoundly anti-democratic.” McConnell cites a landmark 1964 civil-rights decision, in Reynolds v. Sims, which declared: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”
“Baude and Paulsen counter that this is a political argument, not a legal one — and the Constitution, in their view, is apolitical. There are already restrictions on the people Americans can vote for: a Presidential candidate must be a natural-born American over the age of thirty-five, and the Twenty-second Amendment prohibits a two-term President from running again, even if voters are willing to elect them.” (6)
Speculating on where the Supreme Court will decide on the Colorado and Maine ballot initiatives, two scenarios emerge. In one scenario, SCOTUS could “punt” to Congress, and render a strict interpretation of section 3 that it is for Congress to determine if the state ballot exclusions violate voters’ rights. Congress hasn’t made such a determination (and probably won’t). In fact, Senator minority leader, Mitch McConnell, in explaining his 2021 impeachment acquittal urged his colleagues to likewise acquit Trump of inciting the January 6 attack, ‘as there are more appropriate means for removing Trump,’ such as voting him out of office.
In another scenario, SCOTUS could kick the criminal intent can down the road. This would lead the nation to the improbable outcome that Trump could be disqualified from assuming the Office, but not from being elected to the Office of the Presidency. (7)
“If the Supreme Court does take on this challenge, they are most likely to take Michael W. McConnell’s advice and rule as narrowly as possible, to prevent Section 3 from being abused in the future. Richard Hasen, an elections-law expert who directs the Safeguarding Democracy Project at U.C.L.A., told me that he is less concerned with how the Court rules than that they do so very quickly. “Sometimes it’s more important for the law to be certain than to be right,” he said. “It will be a disaster if Trump wins the election, and Democrats control Congress, and they don’t let him assume the Presidency because they say he’s not qualified. And, for Republican voters, they shouldn’t be voting for a candidate who’s not qualified. So this needs resolution.” (8)
Another Smith challenge: on November 30, 2022, a federal jury rendered a split decision in the Oath Keepers January 6 case, to the charges of “seditious conspiracy.”
“The Oath Keeper’s leader, Stewart Rhodes and co-defendant Kelly Meggs, were convicted of seditious conspiracy “to keep former President Donald J. Trump in power… Mr. Rhodes, 57, was also found guilty of obstructing the certification of the election during a joint session of Congress on January 6 and of destroying evidence in the case…
“Mr. Rhodes was… acquitted of two different conspiracy charges: one that accused him of plotting to disrupt the election certification in advance of January 6 and the other of planning to stop members of Congress from discharging their duties that day.” (9)
Whereas juries in the Capitol insurrection cases found violations of trespass on government property, interruption of Congressional proceedings, destruction of federal property, assaulting a police officer, in order to keep President Trump in power, the jury, in this case, did not find evidence of insurrection planning: a sequestered cache of guns and riot gear in an Arlington, VA motel room, does not an insurrection make.
January 4
Listening to the argument by Trump’s lawyers that the Colorado Supreme Court decision to remove their client’s name from the ballot in Colorado, one can feel the conservative originalist sub-text in play: ‘never before in our nation’s history has a candidate, a former President, charged with protecting our democratic elections, been accused of doing the job. ‘
What is curious about this legal strategy, according to former Solicitor General, Neal Katyal, is that the originalist argument, so appealing to the conservatives on the Supreme Court, could be used to support the government’s insurrection claim. (10)
Has the Supreme Court ruled on Presidential obstruction? Is there a precedent?
In 1974 the Supreme Court“ unanimously ordered President Richard Nixon to deliver tape recordings and other subpoenaed materials related to the Watergate scandal to a federal district court. Nixon 418 U.S. 683 (1974) (11) Nixon’s lawyers argued that such a request was in violation of national security. The majority opinion however, argued that what was not the dominant issue, but when… when Nixon decided not to release the tapes on the grounds of obtaining evidence that an obstruction had taken place was indeed evidence of obstruction.
Smith faces a similar challenge in his prosecution of January 6 in providing proof that a peaceful transfer of power couldn’t occur when Trump decided not to stop an insurrection that was unfolding.
Did Trump intend to obstruct and how is a jury to determine obstruction are for Andrew Weissmann questions of interest for Judge Chutkin’s instructions to the jury. (12) For example, consider the question not whether Trump intended to foment violence but that Trump refused to allow the peaceful transfer of power. Trump timed his directive to Vice President Pence, to “do the right thing,” in order to subvert the peaceful transfer of power, abandoning the Office of the President on January 6, thereby placing the nation at risk. That an ‘insurrection’ — yet, an insurrection — failed doesn’t remove the burden of exercising the duties of the Office of the President.
What quasi legal-political strategies remain for Trump to exercise?
Consider pardoning. No one individual has it in their power and office except the current President to pardon Trump as Ford pardoned Nixon in 1974. Biden has refused to pardon Trump. Hence, any pardon or dismissal if criminal charges would require Trump’s election as President. That Trump has stated, if elected, he would pardon January 6 insurrectionists, does not help his defense that he didn’t conspire with the Capitol rioters to intervene in the peaceful transfer of power.
Consider the First Amendment. Arguing that the “freedom of speech” clause of the First Amendment protects Trump from litigation is playing out in multiple gag order appeals. For “insurrection,” however, the Constitution is clear, and applicable as Trump seeks the legal bullying pulpit to pitch his victim narrative to a donor class. The inuendoes will increase, garnering gag appeals from Trump-appointed judges and further delaying accountability.
One thing is certain: voters won’t decide the playing field.
Recall Bush v. Gore when the Court majority concurred that the rights of the Republican candidate campaign were exceeded by the Florida State “automatic recount” formula. Shortly after the Supreme Court’s 5–4 decision, the approval rating of the Court started to slide.
It has not recovered since.
January 4
Asked why the Republican litigants in the Colorado case chose to challenge their party candidate’s qualifications under section 3 of the Fourteenth Amendment, one reply was “I didn’t want to vote for a candidate who is disqualified from being on the ballot.” (13)
January 2–8
Notes
1- Alan Feuer and Adam Liptak, “Judges to Decide Scope of Obstruction Charge Central to Trump’s Jan. 6 Case,” New York Times, December 13, 2023
2- Quote from Judge David Carter decision to order John Eastman to “turn over a cache of documents to the House select committee investigating the January 6 insurrection,” quoted in “Judge says Trump and ally Eastman launched Jan. 6 ‘coup in search of a legal theory,’” Axios, March 28, 2022.
3- Comment: Recall that in 1974, after Nixon resigned, then President Gerald Ford, issued a presidential pardon of Richard Nixon, waiving all criminal charges against him.
4- Burden of proof reference, January 4 screenshot.
5- Sue Halpern, “A High-Risk Legal Effort to Keep Trump Off the Ballot,” The New Yorker, November 9, 2023
6- Halpern, ibid.
7- Jeannie Suk Gersen, “Could a Trump Win Put His Running Mate in Office?,” The New Yorker, January 3, 2024
8- Halpern, op sit.
9- Alan Feuer and Zach Montague, “Oath Keepers Leader Convicted of Sedition in a Key Jan. 6 Case,” New York Times, November 30, 2022, cited by author, “Jury is Out,” Medium, December 6, 2022, https://medium.com/@rodneyclough/jury-is-out-e6b99b18827. Quote cited is from
10- MSNBC interview and comment, “Chris Jansing Reports,” January 4
11- “SCOTUS Decision in Nixon Tapes Case,” Wikipedia
12- Jansing, ibid.
13- Jansing, ibid.
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