What It Would Take to Charge Donald Trump with Inciting Insurrection
I’ve been thinking a lot about Donald Trump’s second impeachment.
As we approach the election with Trump still facing a decent (though declining) chance of winning, a lot of justifiably worried people are again choosing to spend their time whinging about Merrick Garland rather than doing something constructive to help defeat Trump.
There remains a belief that it was Garland’s job — and that Garland had the power — to disqualify Trump from running this race.
A remarkable instance is Rachel Bitecofer, a PoliSci professor who has written on negative partisanship, the way in which people vote against something rather than necessarily for something.
That Bitecofer is spending days in advance of the election doing PR for John Roberts is especially inexcusable because her using partisan anger to get them to vote.
Days before the election, she falsely told voters to be mad about Merrick Garland rather than mad about John Roberts, the guy who is directly responsible for eight months of delay, or Mitch McConnell, the guy with primary responsibility for disqualifying Trump.
She’s breaking her own rule.
That’s one reason I’ve been thinking about the January 6 impeachment: because, in fact, it was McConnell’s job to disqualify Trump from running this race, and McConnell chickened out. Oh, I think there are things that might have altered the outcome of impeachment. Most notably, I think Nancy Pelosi made a mistake in not appointing Liz Cheney to the prosecution team. That would have given Cheney an earlier opportunity to play the formidable leadership role that she later played on the January 6 Committee. Cheney, as a member of GOP leadership, was witness to conversations involving Mike Johnson and Kevin McCarthy that might have tipped the decision to call witnesses. And as her support for Kamala Harris’ campaign has shown, she has the stature to persuade Republicans to put country over party.
But I’m also thinking about why that impeachment failed. Republicans offered two kinds of excuses, one procedural and one evidentiary. Procedurally, McConnell and others argued, they didn’t have the authority to impeach Trump after he left office.
It was a cop out, but — as we’ll see — one that played a role in the immunity decision.
Trump also made some evidentiary arguments against the claim that Trump incited the attack. Trump argued, for example, that rioters planned their attack in advance, and so couldn’t have been incited by Trump.
Despite going to great lengths to include irrelevant information regarding Mr. Trump’s comments dating back to August 2020 and various postings on social media, the House Managers are silent on one very chilling fact. The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse. According to investigative reports all released after January 6, 2021, “the Capitol Police, the NYPD and the FBI all had prior warning there was going to be an attack on the Capitol…” 14
14 Ian Schwartz, John Solomon: Capitol Riot Was A “planned Attack,” Can’t Blame Trump; What Did Pelosi and McConnell Know?, Real Clear Politics (Jan. 13, 2021), https://www.realclearpolitics.com/video/2021/01/13/john_solomon_capitol_riot_was_a_planned_attack_c ant_blame_trump_what_did_pelosi_mcconnell_know.html
Leaning almost entirely on the presence of provocateur John Sullivan at the riot, Trump argued that because rioters had motives other than to support Trump, Trump couldn’t have been responsible.
The real truth is that the people who criminally breached the Capitol did so of their own accord17 and for their own reasons, and they are being criminally prosecuted. 18
17 Some anti-Trump, some ani-government. See, e.g., Alicia Powe, Exclusive: “Boogaloo Boi” Leader Who Aligns with Black Lives Matter, Gateway Pundit, (Jan. 17, 2021), https://www.thegatewaypundit.com/2021/01/boogaloo-boi-leader-aligns-black-lives-matter-boastedorganizing-armed-insurrection-us-capitol/. “The goal of swarming the home of the U.S. House of Representatives and Senate is “to revel in the breach of security while mocking the defenses that protect tyrants…whether that be Trump or others.” See also Robert Mackey, John Sullivan, Who Filmed Shooting of Ashli Babbitt, The Intercept (Jan. 14, 2021), https://theintercept.com/2021/01/14/capitol-riot-john-sullivan-ashli-babbitt/ (“The rapper, who later retweeted a brief video clip of himself and Sullivan inside the Rotunda that was broadcast live on CNN, told me in an Instagram message … “I’m far from a Trump supporter…I really don’t even get into politics at all. It was an experience for me and that’s really the only reason I was there.”)
18 See, e.g., Tom Jackman, Marissa J. Lank, Jon Swaine, Man who shot video of fatal Capitol shooting is arrested, remains focus of political storm, Washington Post (Jan. 16, 2021), https://www.washingtonpost.com/nation/2021/01/16/sullivan-video-arrested/.
Trump repeatedly treated his use of the word “fight” as figurative.
Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever. The only reference to force was in taking pride in his administration’s creation of the Space Force. Mr. Trump never made any express or implied mention of weapons, the need for weapons, or anything of the sort. Instead, he simply called on those gathered to peacefully and patriotically use their voices. [emphasis original]
Most crucially, Trump noted that the attack on the Capitol started before he finished speaking.
A simple timeline of events demonstrates conclusively that the riots were not inspired by the President’s speech at the Ellipse. “The Capitol is 1.6 miles away from Ellipse Park which is near the White House. This is approximately a 30-33 minute walk. Trump began addressing the crowd at 11:58 AM and made his final remarks at 1:12 PM… Protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”20
Trump also complained that the House Democrats used news reports of the rioters’ actions, rather than legal documents.
Some of these excuses are flimsy. Most rely on a rupture between the law prohibiting incitement, which prohibits both inciting an insurrection but also “set[ting] on foot, assist[ing], or engag[ing]” in insurrection, and the holding in Brandenburg, which limited incitement to those stoking imminent illegal action. Those who claim that Trump committed a crime in plain sight would have to rebut these defenses.
In the January 6 Committee’s incitement referral, the argument shifted away from arguing that Trump incited insurrection with just his speech, focusing more on Trump’s failure to stop the riot. They argued:
- Trump summoned a mob and then further provoked the already rioting mob with his Tweet targeting Mike Pence.
- Two of the rioters described their actions in terms of Trump’s orders.
- After the riot was already started, Trump refused to take action to protect the Capitol.
- Trump told close aides that Mike Pence deserved the chants threatening to hang him.
- Trump has since — starting as early as September 2022, before either sedition trial — promised to pardon the rioters.
J6C did good work, but this insurrection referral was just as thin as their obstruction one. Their citation to January 6ers still relied on press reports rather than court records. And rather than relying on Oath Keeper Kelly Meggs’ hunt for Nancy Pelosi — Meggs had been convicted of sedition a few weeks earlier — the report relies on Cleveland Meredith, who never made the insurrection. They don’t incorporate the excellent work J6C did to reconstruct how Trump ordered language targeting Mike Pence back into his speech after Pence refused the President’s entreaties to steal the election.
To be sure, at that point in December 2022, prosecutors were still working on the case that Trump incited the mob. The Proud Boy leaders’ trial — which J6C’s decision to withhold their transcripts had delayed three months — wouldn’t start until early the next month and wouldn’t conclude until May 2023. And it would take another five months, until April 2023, for DOJ to present their best evidence that Trump incited someone at his speech — Danny Rodriguez — to go attack the Capitol and tase Michael Fanone; in the wake of Fischer, however, the sentences of Rodriguez’ co-conspirators have been sharply reduced. People complain that DOJ focused on the crime scene, but before you could even consider incitement, you’d have to account for the Proud Boys and people like Rodriguez.
Before SCOTUS started rewriting the laws applying to January 6, prosecutors were prepared to show specifics about Trump’s culpability for the attack. This is how Jack Smith’s team described Trump’s responsibility for his mob almost exactly a year ago.
Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.
At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.
The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]
A year ago, prosecutors promised to prove that Trump sent his mob to the Capitol, where many of the people Trump had told to “fight” assaulted cops. They have argued for over a year that the mob was the tool that Trump used to obstruct the vote certification.
Last month, subsequent to Fischer, Jack Smith’s argument changed a bit. He relied more on an aid and abet theory of Trump’s liability for his mob’s actions.
Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001).
One way or another, however, as charged Jack Smith is relying on the 18 USC 1512(c)(2) charges to tie Trump to his mob. DOJ needs to sustain at least some of the obstruction charges against crime scene defendants to make this stick. And an opinion from Beryl Howell, freeing two Proud Boys from prison based on her judgment that nothing they did at the Capitol impaired the availability or integrity of the electoral certificates, will make that harder to do.
But let’s go back to whether Merrick Garland — or DOJ prosecutors who spent 30 months showing that Trump incited people like Danny Rodriguez to go nearly murder Michael Fanone, or Jack Smith — could then prove that Trump incited an insurrection.
In August 2023, when Smith indicted Trump, it was not clear he could do that. At the least, he faced the likelihood that Trump would argue his acquittal immunized him from being charged criminally. Indeed, even though Smith didn’t charge Trump with inciting an insurrection, he nevertheless sustained that argument all the way to the Supreme Court, causing precisely the delay that people like Bitecofer blame on Garland.
But in the last year, SCOTUS did three things to clarify the issue. As noted, SCOTUS interpreted 18 USC 1512(c)(2) in a way that may imperil Smith’s ability to tie Trump to the actions the mob took via his obstruction charge.
Even before that, on March 4, a unanimous Supreme Court held that the only way Merrick Garland could disqualify Trump from taking office — and technically he still could — would be to convict him 18 USC 2383.
Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.
And thanks to Trump’s own argument about impeachment, SCOTUS has clarified that he can be charged with 18 USC 2383. Sonia Sotomayor cited Mitch McConnell’s cop out in her dissent in the impeachment case.
Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.
John Roberts didn’t address the cop out in his majority opinion, but he did say that if the political process of impeachment failed for whatever reason — including failing to “muster the political will to impeach” (which sure sounds like why McConnell failed) — the criminal process remained open.
The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.
Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government
Whatever else SCOTUS did, on July 1, 2024, almost a full year after Smith charged Trump, John Roberts clarified that Smith could charge Trump with insurrection.
If Jack Smith had charged Trump with inciting insurrection on August 2023, the case still would have gone to SCOTUS. Given what a hack John Roberts is, he might have fought harder to avoid creating the following set of rules covering Trump. But between the three opinions this year, Roberts has held that:
- Obstruction may be a reach for January 6, particular a conspiracy between Trump and his mob to obstruct the vote certification
- Insurrection remains good law and the law disqualifies someone from serving as President
- Trump’s acquittal on insurrection does not preclude him being charged with it
The legal questions about whether Merrick Garland could disqualify Trump from running were not resolved until August 7, and the evidentiary questions will not be decided for months yet.
More importantly, those claiming that DOJ could have charged Trump right away are missing a great many steps that had to happen first:
- DOJ had to prosecute all the crime scene defendants — people like Danny Rodriguez — it will use to prove that Trump incited rioters; with Rodriguez, that was held up by COVID, the evidentiary challenges, and his own legal challenges to using his own confession against him. In the case of Rodriguez’ co-conspirator, that took until April 2023.
- DOJ had to resolve the Proud Boy leaders’ case to explain Trump’s relationship to the riot that kicked off even as he was still speaking, which — even though Tarrio’s phone was seized before January 6 — took until May 2023.
- DOJ had to obtain Executive Privilege-waived testimony from (at a minimum) Greg Jacob (who predicted violence), Stephen Miller (to get his testimony regarding the speech), Dan Scavino (to confirm details about the Tweet targeting Pence), and Mike Pence himself. Those challenges started when DOJ subpoenaed Jacob on June 15, 2022, and necessarily proceeded by steps, until Smith obtained Pence’s testimony on April 27, 2023.
- DOJ had to exploit the phone used by Trump on January 6; it’s unclear when that happened.
- DOJ had to force Elon Musk’s Twitter to comply with a warrant for Trump’s Twitter account. He stalled for 23 days in January and February 2023.
- DOJ would probably need the contents of Mike Roman’s phone, which show him egging on a colleague to “Make them riot” at the TCF counting center in Detroit, and Boris Epshteyn’s phone, which implicates Steve Bannon in the conspiracy and through him makes Bannon’s prediction that “All Hell is going to break loose tomorrow” part of the conspiracy. Those phones were seized in September 2022, but I have argued that Roman and Bannon’s belated treatment as conspirators may suggest it took longer than 11 months to exploit those phones (which was known to happen with Enrique Tarrio and Scott Perry’s phones).
As I keep laying out, we know how long the investigation took. We know it took 14 months before the first crime scene defendants could be tried. We know it took over a year to exploit Tarrio’s phone. We know J6C caused at least three months of delay by withholding transcripts. We know it took ten months to get privilege-waived testimony from necessary witnesses.
And we know that John Roberts chose to delay the legal questions from December 2023 until August 2024, eight months.
Merrick Garland might yet charge Trump with insurrection. He might need to, to sustain the tie between Trump and his mob. But we have a pretty clear understanding of why that didn’t happen, couldn’t have happened, before tomorrow’s election.
Sorry to be nitpicking, but the current text makes it look like Nancy Pelosi was convicted of sedition :-)
I noticed the same thing: “And rather than relying on Oath Keeper Kelly Meggs’ hunt for Nancy Pelosi — who had been convicted of sedition a few weeks earlier…”
I think you want it to say: “And rather than relying on Oath Keeper Kelly Meggs’ — who had been convicted of sedition a few weeks earlier — hunt for Nancy Pelosi…”
Thanks to both of you. Fixed it.
Marcy has finally agreed with Trump on something.
It took a long time, but has happened, lol.
I’ve agreed forever that MSM is “fake news”
Frequently true, owing to lack of context, credulity, poor writing and analysis, bothsidesing, and outright bias. It’s still a tad reductionist, and enhances Trump’s propaganda.
Mitch McConnell may have chickened out. But he may not. He had seven Republican votes for conviction in the Senate (excluding his own), and needed 17. For all I know, he might have tried hard to get nine more, and found it impossible. If so, he would never admit to his failed efforts, and would have tried to ensure that they would never be known.
Oh please. There is really no reason at all to provide excuses for Mitch at this point.
Mitch is a coward, he deserves no reputation rehabilitation tour.
He stuffed the courts with Nationalist Christians, which is what his masters at the Federalist Society requested.
He wouldn’t allow evidence to be introduced in the SECOND impeachment. and he made sure that the GOOP didn’t convict based on the evidence that the Dems used in their speeches.
He could have chickened out. He could have even been rooting for Trump. The only thing I know for sure is that Mitch McConnell is never the man who would go down nobly for a lost cause. Hence, I cannot make any inferences from his patent behavior. And what he did privately is inaccessible to us.
Don’t excuse what he did. He WANTED Donnie to be free.
“There is no question, none, that President Trump is practically and morally responsible for provoking the events of the day.”
Glitch McConnell knew exactly what he was doing when he omitted the word “legally.” Like a fool I believed his statement meant he would hold Trump accountable.
From McKay Coppins book “Reckoning”.
Mitt Romney says Republican senators did not vote to impeach due to Trump mob threats of violence against senator’s families:
“One of the biggest revelations to me in my conversations with Romney was just how important the threat of political violence was to the psychology of elected Republicans today,” said Coppins, who recalled Romney telling him “story after story about Republican members of Congress, Republican senators, who at various points wanted to vote for impeachment —vote to convict Trump or vote to impeach Trump —and decided not to, not because they thought he was innocent, but because they were afraid for their family’s safety.
They were afraid of what Trump supporters might do to them or to their families.” That “raises a really uncomfortable question,” Coppins said, which is “how long can the American project last if elected officials from one of the major parties are making their political decisions based on fear of physical violence from their constituents?”
See: American Civil Rights movements.
Is it a really a harbinger of the end of the project because (mostly) white men are threatened? There are several activist groups over decades that have been threatened, attacked, murdered who would like a word about staying in the game.
How many constituent threats have been reported and investigated? It’s the rule of law that must hold. If Republican legislators don’t support the system (which they do not if they aren’t reporting to the FBI, local police, the press), they obviously don’t grasp public service. Many Democratic legislators are threatened regularly and they still report for work.
The thing about our society at present is, we don’t prepare for enough possibilities for chicanery before we choose people to run for political office.
What we need is a vetting system for the general public to weigh in on, checking health records, financial records, and a cognitive test and mental test for fitness of mind, as well as body. We have higher standards for a prize fight than we do for picking a candidate for public office, especially, the residency. We need to know more, before the fact, than after the fact.
yes, donald trump has continuously disrespected the office of the presidency!
would he (“say anything to get elected”) have passed any such vetting process?
if elected officials are not not held to their statements and actions, we have the current situation: say anything and get elected, and then trample upon the oath of office and the office itself.
Thank you for yet another incisive analysis.
In particular, laying out with specificity, the major causes of delay affecting the Trump trial.The necessity for successful prosecutions in other J6 proceedings, ought to be recognised ( at least conceptually) by intelligent observers, as part of the legal and evidential decision making matrix which was bound to affect the investigation and proceedings against Trump. By showing the granular details, such individuals have fewer excuses to resort to glib condemnation of Garland and/or DOJ and/or S Counsel
It must be infuriating to keep rebutting the ill informed and ill considered opinions of those who frankly ought to know better but sadly do not.
I for one am grateful for your patience and persistence in encouraging everyone to make reasonable and reasoned judgment about these matters: based on evidence, law and a proper understanding of the complexities involved in investigating and prosecuting the case against Trump and the co-participants widely understood.
Jan. 6th together with the coup plot were the legal equivalent of a mass casualty event, which strained not only the DOJ but also the judicial processes.
I wonder if there might be ways in the future to expedite the judicial processes – including the appeals process.
As noted above, COVID was as much a problem as anything else. It still would have taxed the system, but COVID probably caused 9 months of delay.
The Perfect Storm, indeed.
We had Covid bad here in New York.
Justice showed up.
P.S. Brooklyn Federal Court (Eastern District of New York) will apparently remain open Election Day. They just show up.
The coup plot was a harebrained Hail Mary that required multiple state and federal officials to bet their lives, fortune, and sacred honor on Trump keeping his word.
Jan 6 was ultimately a demonstration of Trump’s control of his voter base. I would argue it was as much a warning to Republican politicians as it was a threat to Democratic ones.
Without a doubt. Most of the people IDed as targets in the immunity brief are Republicans.
Once again, people, even anti-Trumpers, ignored that the attempted coup was not just J6. It was the fake elector scheme, it was pressuring state officials to ignore the vote count and declare Trump the winner, and it was bullying Pence to throw out EC votes. Put all that together along with J6 and you have a solid case for attempted coup / insurrection.
Also there is evidence that the Trump White House was in communication with the riot leaders prior to J6. The attack was pre-planned.
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Merrick Garland was afraid to prosecute TrDump. He passed the ball to Smith. We knew McConnell was not going to impeach their president. The entire investigation was a ruse. Three years and no trails, and the traitor is running for president again.
[Moderator’s note: see reply below. /~Rayne]
First, the comment above was published by a first-time commenter. Regular readers and commenters here know and understand the lead-up to charges against the January 6 perps and Donald Trump.
Second, the comment is concern trolling intended to derail discussion here by encouraging a pile-on, distracting from discussion about the topic — what it would take to charge Donald Trump with inciting insurrection.
Do NOT take the bait. I will bin all comments replying to “Jeff Collins” or my follow-on. Stay focused on the topic of this post.
This will not be the first attempt you’ll see to try and redirect attention. If it walks, talks, smells like bait, don’t take it.
The Legend of the Feckless Coward Merrick Garland, Who Didn’t. Even. Try. is carved in granite at this point, so I want to thank you for making this effort. Regarding keeping Cheney off the prosecution team, was she as publicly opposed to Trump at that time? After all this is a woman who not so long ago called Democrats “evil baby killers”. Not an obvious ally. Also, I don’t understand the distinction between between “news reports” and “legal documents” and the superiority of the latter. Thanks again.
Oh Cheney had proved her mettle long before the J6 committee had been set up IMHO
https://www.washingtonpost.com/politics/cheney-trump-house-impeach/2021/01/12/648c677a-54d2-11eb-a08b-f1381ef3d207_story.html
Before riot, Trump said ‘we got to get rid’ of Rep. Liz Cheney. Now she supports impeaching him
Jan 12 2021
Rep. Liz Cheney’s historic decision Tuesday to vote to impeach President Trump had its roots in a dramatic phone call from her father, former vice president Richard B. Cheney, who was watching events unfold on television last week and warned that she was being verbally attacked by the president.
… Six days earlier, Cheney was in the House chamber, urging that Republicans reject efforts pushed by Trump and many others in her party to challenge the electoral college results that determined Trump had lost his reelection bid. She did not know she was being attacked by Trump, who was delivering the speech that would incite a mob to storm the Capitol, until her father reached her by phone in the House cloakroom.
…. she heard a mob banging on the chamber’s doors and a shot fired, and realized that an attempted insurrection was underway. She hustled to a secure location and later called Fox News
“There is no question that the president formed the mob, the president incited the mob, the president addressed the mob,” Cheney told the network where she once worked and whose pundits had long supported Trump. “He lit the flame.”
Please take a little more time to contemplate that last bit you wrote about “news reports” and “legal documents” because you could suss that out by yourself.
What are “news reports”? Who writes them, who edits them, where are they published? Have you not realized how widely all these inputs can vary along with the outputs? This is what Trump relies on in his complaint, that the House relied on this content which has been cherry-picked and edited.
What are “legal documents”? This isn’t clear but let’s assume he means unedited evidentiary materials.
As Marcy said, some of Trump’s excuses are flimsy. We know the House collected ample evidence and did not use published news reports alone. IMO, what Trump and his legal team are engaged in is FUD — fear, uncertainty, and doubt — in order to undermine the government’s and Congress’s case against him. Not all of this FUD is of a caliber intended for consumption in court or the Senate but rather for manipulation of public opinion.
“The Legend” you refer to is a result of manipulated public opinion, the media having failed to do a successful job communicating what DOJ was doing and the challenges it faced unwinding January 6, its largest investigation ever.
J6 committee is not a court of law, thus it is not bound by strict rules of evidence, and in particular the rule against hearsay
Hearsay reports from the press are admissible , and one would hope what weight any such report was given depended on an assessment of its quality including that the facts asserted were not sworn evidence.
Trials in courts of law are governed by rules of evidence which dictate the admissibility of the purported evidence. Criminal trials have much more stringent standards than civil proceedings.
If, in a criminal trial one wanted to rely on the contents of a telephone record the prosecution must prove a strict chainof custody. Think about strict proof beyond reasonable doubt that Trump himself sent the smoking tweet which set the mob on Pence. And then apply that to every piece of evidence.
I won’t get into complexity and nuance of various rules of evidence, because I hope you have sufficient to appreciate the general picture of the rigor of proof and the complexity of establishing it.
LOL. Not worth the popcorn to refute such nonsense.
Excellent piece!
My concern is that the current batch of politicians and also the new ones running for election in the House and Senate, as well as many Federal Judges, do not believe the six conservative Supreme Court justices would ever rule Trump caused the J-6 Insurrection. Those six would shape a majority ruling using free speech as Trump’s defense. Therefore, I’d be surprised if Trump is charge for Insurrection.
After Trump loses the election tomorrow, he’ll fight a little while longer to contest his election loss. And he’ll continue scamming and grifting money out of his cult followers until his criminal trials in Georgia, NY and DC are ripe enough for him to realize it’s time for him to flee the country in exile before he’s sent to prison.
I predict he’ll flee to a country in the Middle East that assures him he won’t be extradited back to the US.
If Trump loses the election and the court battles, I think he will cut a deal with the Feds – commuted sentence in exchange for dishing on co-conspirators, including any foreign ones, in the documents and Jan 6th cases. Biden will agree to this in the hopes of unifying the country and because Trump is a feeble old man.
Nonsense. Among other things, President Biden will have no input, nor reasons for providing any, on any hypothetical plea deal the Special Counsel could conceivably negotiate.
Not a prayer. Trump would never do a deal with the Feds or follow through on one. He is one of the most well-documented liars on the planet. His refusal to follow through with a promise is equally legendary. His value as a witness is nil. The odds that he would lie and impeach himself on the stand are so high, it makes any use of him as a witness for the prosecution tantamount to subornation of perjury.
If the Feds have a case provable in court, they won’t need Trump’s testimony to make it. There is no incentive to cut a deal with him. He is the big fish.
Joe Biden is prepared to let the legal chips fall where they may for his own son. That makes him the last person likely to agree to a deal with Donald Trump, even were he involved and one was ready before January 20th, which is as likely as Trump withdrawing from the race tomorrow.
November 27, 2024
Judge Marchand sentences Trump
To a prison sentence according to David Caye Johnson.
Yet NY, in this and all following repies are concerned with the Feds.
What are we…chopped liver?
Presume Trump loses to Harris and does not try what he did 2020. He has JD as successor with Musk and Theil money, so MAGA continues, as a practical matter not enlarging charges at this point will give succesorship MAGA less grounds to fulminate.
If that is not a practical concern, but Mitch is, it doesn’t seem wisdom is at play.
What it would take is a repeat. Start there. No repeat, it will slide as politics at play. Sleeping dogs, etc.
If he wins he pardons himself and John Roberts and crew rubber stamp. His winning would moot the question.
Although it is has never been tested, I do not think a president can pardon him/herself. That would be a terrible precedent and with the president’s have absolute immunity Roberts’ ruling, they don’t need to…
It would take a horrible president to create such a horrible precedent, so if Trump gets into the White House again, he’s just the man to do it.
You are among a very wide group of people (Ford w. Nixon, Obama w. bankers) who feel that moving on is practical.
I don’t think that it is.
No consequences only encourages more wrongdoing.
By all sorts, especially by fascists.
Plus it breaks what remains as our legal system.
A little off topic, but kinda related…
Disclosure: I am not a lawyer. But many here are.
In re the dismissal of the Special Counsel’s Criminal Charges re the Mar-A-Lardo Documents case on grounds that Special Counsel Smith was never vetted thru the advice and consent process and thus improperly appointed…there was a reference to the use of outside appointments for investigation being entirely acceptable/legal.
To me, that raised this question: Can the fruits of Jack Smith’s investigation that resulted in Grand Jury true bills, can these GJ criminal charge recommendations now be turned over, by Garland, to, say, a US Attorney in GA or DC and allow the US Attorney’s office to then pursue criminal charges for the Theft/Attempted Theft and Obstruction related events against TFG and his co-conspirators, thus reviving the documents criminal trial?
IANALE, but I’m not sure the documents case is entirely dead yet.
Smith immediately appealed Cannon’s dismissal to the 11th Circuit (the same appellate court that reversed her previously). The next steps in that appeal occur later this month — after the election, unfortunately, but given the shakiness of Cannon’s ruling it’s entirely possible she’ll be reversed again (and probably yanked from the case this time, since she’d be found to have erroneously dismissed it).
Gotta let it all play out. That’s what rule-of-law is all about.
I suspect the 11th will reverse Cannon, especially if Trump loses.
But if note, DOJ would have go back and recreate all the interviews done under Smith.
I stopped reading when Ms. Wheeler blamed Mitch McConnell for these circumstances. Because after that I knew I agreed with everything else she wrote.
At the moment of crisis the Senator from Tennessee, Andrew Johnson, refused to withdraw from the Senate, and he helped pry Tennessee from the Confederacy, and it saved lives. He was certainly a racist, and not a wise President, but his courage was exemplary. If a few more Virginians had followed Johnson’s and Winfield Scott’s example the entire tragedy might have been avoided.
The Goldwater Republicans told Nixon he had to resign, and the descent into oblivion, depicted in German fiction by Kurt Weil and Lotta Lenya, was postponed until 2016.
Elections are contingent. Maybe we get to Shake it Off, specifically shake him off. But MItch McConnell’s failure is conspicuous and inexcusable.
Well that sure is some revisionist history as Johnson didn’t help much to “pry Tennessee from the Confederacy.” In his roles as Senator-without-a-state then as “Military Governor” he didn’t even spend much time there during the first two years of the Civil War.
Secondly I would guess that Hugh Scott would shudder at being called a Goldwater Republican. Especially as he supported Scranton in ’64.
Correction: Johnson, as military governor, lived in Nashville during 1860-1862, though the ebb and flow of war during 1862 sometimes brought Confederate control again close to Nashville. Johnson undertook the defense of Nashville as well as he could, though the city was continually harassed by cavalry raids led by NB Forrest. Union forces led by Rosencranz won at Murfreesboro in early 1863 to end that.
Johnson didn’t become Military Governor of Tennessee until March 12, 1862. Prior to that he was in the Senate which means he was in D.C. while in session.
He certainly wasn’t Military Governor in 1860 either as the Civil War didn’t begin until April 1861!!!!
Well put.
Wouldn’t it be helpful, towards building an insurrection case against Trump, if rioters like Danny Rodriguez and Joe Biggs were charged and convicted of insurrection?
Any explanation as to why Jan 6th foot soldiers haven’t been at least charged with 18 USC 2383 to date?
Because Biggs was charged with sedition?
I am curious why Trump’s tweet sent at 1:42 a.m. on Dec. 19, 2020, which said, “Big protest in D.C. on January 6th. Be there, will be wild!” is not evidence of inciting an insurrection ?
In and of itself the statement is at best coded and allusive, and it is remote in time.
https://supreme.justia.com/cases/federal/us/395/444/#F2
Brandenburg v. Ohio, 395 U.S. 444 (1969)
“These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [Footnote 2]
… Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [Footnote 4] Such a statute falls within the condemnation of the First and Fourteenth Amendments”
“[Footnote 4]
Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for, as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 299 U. S. 364: “The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental.” .. “
In a bold scenario where Biden finally stood strong and acted with deliberation he could, before leaving office, replace Merrick Garland with Jack Smith. / Take THAT: John Roberts ! Of course that is the Hollywood fictional version where Democratic Justice prevails.