You raise an important disagreement with Baude-Paulsen that an insurrection must involve force, even if people can aid that insurrection without direct use of force themselves. The scope of what could be punished as insurrection without this requirement should be frightening to anyone. Some of Trump's other efforts to subvert the election might be illegal, but without January 6, they don't constitute insurrection.
Trump contends that an enemy of the United States must actually be a government, which is silly. But the argument gestures vaguely toward an important distinction: an insurrection attempts to replace a government. "Impede" doesn't just mean to obstruct law enforcement--this is obstruction of justice or resisting arrest. An insurrection either claims rule over territory or attempts to supplant the existing government (which claims all the territory).
The CHAZ set forth a secessionist goal, but they didn't defend this goal with force. If they had, insurrection. Meanwhile, you describe Portland as a siege. That implies that the goal of the protesters was to take possession of the courthouse and either compel judges to make certain rulings or declare themselves judges and announce their rulings with force of law. Evidence that this was their goal and that they attempted it with force is what this article is missing to make the case that the protest amounted to insurrection. According to Romney, Republicans in Congress feared for their lives and families if they opposed Trump. Did federal judges reasonably fear for their lives if they didn't make some set of rulings in the protesters' favor? If yes, insurrection. Otherwise, the characterization of a "siege" just cites the Orwellian take of an administration piloting use of force against citizens in preparation for its own plans, already in making at that time, to seize the federal government regardless of electoral outcome.
I hadn't realized you'd voted for Trump both times! Given prior articles, I'd had the impression you voted for him grudgingly the first time, then refrained from doing so the second. Your 2020 fiction on a second civil war ignored something important: Trump had signaled clearly that he would deny the results not only of an ambiguous election, but of any election he did not win. Anyone paying the least attention knew that, if Trump did not win the election, an insurrection would come. The only questions were how severe it would be and whether it would succeed, and one of the factors controlling success would be the closeness of the election.
Was this not plain to you? If it had been, would you still have voted for him a second time?
I sometimes refer to myself as Schrodinger's Trump Voter: it's perfectly fair to read me either way. I did not, in fact, vote for him either time, but I certainly would have in 2016 if I had thought Minnesota might be decisive. (In fact, I spent 45 full minutes walking around the polling place trying to decide before I went to get my ballot, and, if memory serves I STILL spoiled my first ballot as I changed my mind again on the spot.)
In 2020, I was sure enough early on that Minnesota would *not* be decisive that I was never really put to the test, so I don't know what I would have done, if it had come down to it. (Another great benefit of the electoral college: it frees many of us from the awful responsibility of actually having an impact on the final presidential result.) However, I maintained before the election that it *might* be ethical to vote for Trump (with great care), and that it *was not* ethical to vote for Biden -- so, no matter how I cast my vote, I certainly *justified* voting for Trump both times. I think I'm now to the point where I have to say that it isn't ethical to vote for either. So I guess, as happens all too often, I end up at Alasdair MacIntyre's positions, just 20 years too slow. (referring to this: http://web.archive.org/web/20140802011938/http://brandon.multics.org/library/Alasdair%20MacIntyre/macintyre2004vote.html)
I can honestly say, though, that I was actually surprised by the depth to which Trump was willing to go on such a thin case. As you note, my big civil war post was premised on there being an actually-contestable election claim, which, naturally, Trump would never ever let go of. But we didn't have an actually-contestable election claim! Trump generated it out of thin air! That part wasn't surprising... but my sense had been that he only told these ridiculous lies as verbal face-saving measures before his actual actions showed him sheepishly backing down (or just losing interest) (or being talked down by his team), as happened numerous times during his administration. So I *was* mildly surprised when he not only clung to this particular lie with such determination, backed it up with action, cast aside everyone in his team who opposed him, and -- above all -- convinced so many people of such a clear falsehood. In retrospect, clearly, that was my mistake, but I really thought that, in an election with a clear outcome, we would have resolution and Trump angrily stepping aside (without any concession) by mid-December. I was disappointed more by those around Trump than by Trump himself; you may or may not recall that, shortly before J6, this blog said that Ted Cruz ought to be exiled from the United States for his cynical support of what he knew to be Trump's lies.
That asymmetric failure of the Republican Party and the conservative movement is still a very bitter pill for me to swallow, and I don't know whether I've swallowed it as completely as I ought to.
SUBSTACK SAYS: Please type a shorter comment
Gosh darn it, Substack! Comments are a platform for rambles! LET THE PEOPLE RAMBLE!
"Trump contends that an enemy of the United States must actually be a government, which is silly."
I didn't get into this, because I wasn't contesting Trump's definition of "insurrection," but, when you dig into the precedents, it's not nearly as silly as you think! When it comes to the Treason Clause, especially, the definition of "enemies" is very narrowly constrained -- not only does an "enemy" have to be a recognized foreign government, but we have to be in a state of *declared* ware against that government! That's a big reason why there hasn't been a treason prosecution since 1945; the U.S. has actually declared war against an actual foreign government somewhere between zero and a small number of times since then (depending on how you understand the war-declaration power).
When it comes to insurrections, I still think there's a good chance he's wrong, but there are at least good reasons to think that the Disqualification Clause's aid-and-comfort portions were indeed only intended to apply against pretended rebel governments, not any old mob. (Of course, as I note in the piece, the definition of "levying war" or "engaging" in insurrection can be read so broadly -- and may NEED to be read so broadly -- that it doesn't really matter.)
"an insurrection attempts to replace a government... An insurrection either claims rule over territory or attempts to supplant the existing government (which claims all the territory)."
Interestingly, this is mistaken! No case law that I am aware of has *ever* held that an insurrection must necessarily be attempting to replace the regime, or even claim territory. The crucial distinction for insurrections is whether they have a "general public purpose," which I vaguely gestured toward in the article but didn't drill down on (because it wasn't really relevant). Territorial claims are irrelevant. If you attempt to systematically impede or prevent the execution of even a single law, *by violence,* that's insurrection.
The difference between public purpose and private purpose may be illustrated by this example: a bank robber who evades police and resists arrest is attempting to prevent the execution of the law in *one specific instance* -- his own. But someone who (violently) tries to make it impossible for the police to enforce the law against bank robbery *in general*, so that *everyone* can rob banks (I'm thinking of Bane in The Dark Knight Returns, although he ultimately went much further than that)... THAT is an insurrection. (Actually, I suspect quite a lot of Batman villains could be disqualified from holding public office under Section Three, but I am not going to think about this for more than the 45 seconds I have already thought about it.)
That's what makes the Whiskey Rebellion an insurrection. In general, the mob had no desire to overthrow the Constitution or the United States *overall*. They were merely attempting to prevent, by organized violence, the general execution of one particular law, for everyone in one particular locale.
Now, Baude & Paulsen argue, I think very interestingly, that one of the clearest differences between an insurrection and rebellion is an attempt at regime replacement. But an insurrection does not necessarily have any designs on regime replacement.
That's important for the case against Trump, since it's at least arguable that he and his forces had no desire to replace the regime, either. They all identified as American patriots from start to finish, and waved the flag of the Revolution. All they wanted to do was suspend the lawful execution of the Twelfth Amendment (which many of them had erroneously concluded was unlawful) (as Baude and Paulsen show, though, there's no "mistake of law" defense to insurrection, so their error does them no good).
There's more good reading to be had about "general public purpose" and the nature of insurrection in the literature, although -- unfortunately -- it's all starting to blur together for me. I think I read about this first in Myles Lynch or Gerard Magliocca's first papers on Section 3, which are both available for free on SSRN.
"That implies that the goal of the protesters was to take possession of the courthouse and either compel judges to make certain rulings or declare themselves judges and announce their rulings with force of law. Evidence that this was their goal and that they attempted it with force is what this article is missing to make the case that the protest amounted to insurrection."
For the reasons above, I think this is slightly off: if the goal of the attackers was to establish themselves as the new federal district court for the District of Oregon, that would be a rebellion -- but it's an insurrection so long as they were attempting (even ineffectually!) to suspend or substantially impede the general operation of federal law within the district. That is, if their purpose was not to secure freedom for this particular prisoner or that particular defendant, but to generally increase the amount of anarchy in Oregon, or anything like that, that's a "general public purpose" and they're insurrectionists.
You're correct, though, that I did not do the work of making the case that this actually *was* their goal. I relied on very shallow press reports. I could be wrong.
In general, though, I think this is a good rule of thumb: if you throw a Molotov at a federal building, or punch a federal law enforcement agent in the head, or are standing next to somebody who does and don't immediately retire from the field, you should be prepared to petition Congress to lift a disqualification before running for public office. (I do not imagine that this applies to very many people.)
If I am correct that there's a distinction between insurrection against a state government and insurrection against the federal government, then that shields most people from consequences under 14AS3, because most police forces are state officers. I'm not sure that is correct, because I didn't read about it anywhere -- I came up with it myself -- and I'm aware of no precedents on it, but Baude-Paulsen seemed to come up with a similar idea in their Footnote 412, which gives me some measure of ease about it.
"The scope of what could be punished as insurrection without this requirement should be frightening to anyone."
Agreed. Of course, you know me, I'll follow the text where the text takes me, even if it leads to bad consequences, but I was relieved to realize that, from what I can see, the text *does* strongly suggest a requirement of violence. Otherwise, I'm not totally sure what the outer boundaries of "insurrection" would be.
That being said, Baude-Paulsen's case for the possibility of non-violent insurrection is, as a matter of text, nothing to sneer at. They do amass an impressive body of law and logic surrounding the Secession Crisis of 1860-61 (which has always been one of Paulsen's areas of expertise). I just don't think it holds up in light of the intratextual evidence. But, as always, one must ask oneself the question: is that what I believe because it's where the text led me, or did I force the text to take me there because it's where I wanted to be for policy reasons?
I am actually very curious to find out what Baude & Paulsen make of CHAZ, since I had to guess.
Anyway, thanks for reading, obviously lots to say and to think about. This stuff has all been held inside me for weeks and anyone who gives me half a chance is at risk of setting off an explosion of James Disqualification Takes.
(And we haven't even GLANCED at the technical issues that are ACTUALLY AT ISSUE in the MN case right now!)
"No case law that I am aware of has *ever* held that an insurrection must necessarily be attempting to replace the regime, or even claim territory. The crucial distinction for insurrections is whether they have a "general public purpose,""
You're right! I blurred the distinction between insurrection and rebellion. Thanks for the correction. The Treason clause of the Constitution, as you say, was intentionally framed very narrowly, so it's possible to argue that the Disqualification Clause could similarly apply only to a government or rebel would-be government. But the Disqualification Clause says insurrection OR rebellion. The case law you cite suggests that American law regards insurrection as prevention of the execution of law through violence, and doesn't require claiming territory or intent to replace the regime, which constitutes rebellion.
Amusingly enough, I started writing a paragraph about public versus private purpose for the prior comment, even using the same example of bank robbers--but tried to stay succinct. Usurpation of power claimed by the government is at stake in both insurrection and rebellion, but the latter sets more ambitious purpose.
"That being said, Baude-Paulsen's case for the possibility of non-violent insurrection is, as a matter of text, nothing to sneer at. They do amass an impressive body of law and logic surrounding the Secession Crisis of 1860-61"
Wait, if the Secession Crisis is the example at stake, wouldn't that be *rebellion* without violence? Is it possible that insurrection without violence isn't the law, and shouldn't be for reasons we broadly agree on, but that rebellion without violence could exist under the law? If a group never fires a shot, but could and clearly would back its attempt at regime replacement with violence if it proceeded several more steps successfully, could their actions constitute rebellion? I'm not sure if this is a position I would advocate for. However, since a rebellion gets access to the state repressive machinery if it succeeds, it's reasonable that the standards to qualify as one might be different from insurrection.
"if you throw a Molotov at a federal building, or punch a federal law enforcement agent in the head, or are standing next to somebody who does and don't immediately retire from the field, you should be prepared to petition Congress to lift a disqualification before running for public office"
Broadly, I cannot disagree with this! But let's look at how your examples of targets include first a building and then a person, and how these might be different. Here's a question worth asking:
Was Martin Luther King an insurrectionist? He and his movement definitely obstructed laws with public purpose, and in his time, he was accused of inciting hatred and violence, and mass media often associated him with the riots that were also happening.
By the case law you describe, it sounds possible he was! And that Bernie Sanders, having marched with him, should be ineligible for office. Our 19th-century laws weren't written with foresight of 20th-century satyagraha, the form of political action where King took inspiration from Gandhi. Satyagraha literally translates as "truth-force," for which "passive resistance" or "non-violent resistance" are terrible renderings. Strapping yourself to railroad tracks is supposed to be a form of force, but not violence. It's a political strategy that compels the public display of the violence that an existing system imposes upon you, and which disrupts the function of the state to make your continued oppression more costly.
If our insurrection definitions rely on "force," and include damage to property as force, or interposition of one's own body as force, then many kinds of protest become insurrection. American law was written by the propertied and tends to prioritize property, so the text of the law, or particularly the text of 19th-century precedent, might define as insurrection many things we've collectively decided are not.
This has bearing on Portland. Their public purposes, according to their posters and statements at the time, were these:
1. Reallocation of city and state funds from police to social programs
2. Resignation of the mayor (who didn't support #1)
I don't think they threatened or committed violence against people in any way that would obstruct city allocation of funds or the continued legal service of the mayor. If our definition is around violence that advances your public purpose, we have a clear no, even if we have non-violent behaviors that break other laws and then violence in resisting arrest. We also still have a clear yes for January 6: there was threatened violence against members of Congress in direct pursuit of their public purpose, and any threat to law enforcement in the storming of the capitol directly served the goal of achieving that threat to Congress.
But American law and precedent might not be that narrow--the examples you cite suggest it isn't. Law and precedent might also be at odds, if precedent has allowed definitions of force and their relationship with public purpose to sway widely with the fears of the time. I haven't argued here that Portland definitely wasn't an insurrection. Rather, I'm saying that arguing that it was opens some sticky questions that could affect clearly non-violent protest, in ways that January 6 doesn't.
"I can honestly say, though, that I was actually surprised by the depth to which Trump was willing to go on such a thin case... That asymmetric failure of the Republican Party and the conservative movement is still a very bitter pill for me to swallow, and I don't know whether I've swallowed it as completely as I ought to."
One of the reasons I discuss politics with you, and regard you as a friend despite seeing many of your politics as harmful, is that you convinced me early on that you make arguments in good faith and genuinely believe that you are advancing the positions of most good or least harm. Trumpism doesn't care about the strength of any case. It says whatever would need to be true to take the steps that it wants, regardless of whether this requires an entirely alternative set of facts. And it announces this fairly openly! That Trumpism has co-opted the Republican party and the conservative movement must cause you and people like you a lot of distress.
Edit: Sanders hadn't held federal office at the time of his marching with MLK, so the Disqualification Clause wouldn't apply to him. But that's irrelevant to the argument at hand, which would apply to anyone who did hold federal office. Sanders was just the currently serving senator who came to mind who had participated in the Civil Rights Movement of the 60s.
"Wait, if the Secession Crisis is the example at stake, wouldn't that be *rebellion* without violence?"
Ope, yep, that was just sloppy on my part. I certainly meant to type "rebellion" there. Awfully silly of me to distinguish between the two so carefully and then just... forget! Thanks for the correction.
"Was Martin Luther King an insurrectionist?"
I don't think so, because of his constant and unceasing demand that his movement remain non-violent. This is a summary judgment, but I just don't think that his sit-ins, marches, and passive arrests constitute "force" within the 19th-century meaning of the term. It's true that the early insurrection cases had no concept of non-violent civil disobedience, but neither did they define insurrection so broadly that it might include non-violent civil disobedience. (I'm not even sure you can say that non-violent civil disobedience involves any attempt to suspend the execution of the laws! When arrested, the hallmark of the King movement was to go peacefully!) When you read them both, the Letter From A Birmingham Jail is just not the same kind of thing as Trump's ellipse speech (or anything Trump did afterward), and, without sitting around plotting against MLK all night, I just don't think there's a plausible case out there that could make me think otherwise.
You're certainly correct that many people tried to associate MLK with various acts of violence, but I think King could definitively prove, to any court, that his position was unequivocally one of peace -- in precisely the way that Trump could not.
"If our insurrection definitions rely on "force," and include damage to property as force, or interposition of one's own body as force, then many kinds of protest become insurrection. American law was written by the propertied and tends to prioritize property, so the text of the law, or particularly the text of 19th-century precedent, might define as insurrection many things we've collectively decided are not."
Without taking any particular position on any specific form of protest, I don't think that we *have* collectively decided that anything is or is not insurrection. Certainly we haven't ratified an amendment saying, "This thing that people used to see as insurrection is now exempt." We haven't even passed a *law* to that effect. I don't even think such a thing would be *popular*, although it's difficult to tell without putting it to the democratic test. (I recognize that one reason it hasn't been put to the democratic test is because it didn't really come up for a long time.)
"I don't think they threatened or committed violence against people in any way that would obstruct city allocation of funds or the continued legal service of the mayor."
As I've admitted, I don't know enough specifics about the Portland attacks / riots / insurrection to say with certainty whether it fell within the Greathouse definition of an insurrection. All I can say is that the distinction you draw right here strikes me as parsing the public meaning of a given act of violence a little too fine, but I can see that you're testing the boundaries
"Rather, I'm saying that arguing that it was opens some sticky questions that could affect clearly non-violent protest, in ways that January 6 doesn't."
Yes, I hear that.
I think we are on the same page on this. We both agree that, as a public policy matter, we think it would be a *bad thing* for non-violent protest to fall under the Disqualification Clause. We both agree that, as a legal matter, it seems that non-violent protest *does not* fall under the Disqualification Clause. We both agree that, whatever the specifics of what happened in Portland, it *does* raise some line-drawing questions that J6 itself does not. We agree that, for public-policy reasons, it is important that, if non-violent protests are ever included in the definition of "insurrection," it would probably be a good idea to change the definition.
Just to complicate things more, as J6 itself shows, you can have an insurrection going on in one part of a crowd while the other part is engaged in peaceful protest and isn't even aware of anything bad going on nearby.
"That Trumpism has co-opted the Republican party and the conservative movement must cause you and people like you a lot of distress."
Yes.
For a fun time, you can watch in as I gradually melt down over the full course of 2016 (starting on Jaunary 26)! https://www.jamesjheaney.com/page/23/
Talk about a journey… footnote 12 could have been an entire break-out post (like the ‘Biden really win’ companion piece)!
I really appreciate the dedication you take to both providing thorough, researched facts throughout this series as well as taking such a dogmatic steel-man approach to each side’s claims.
I'm late to commenting on this post, but I've been busy, and the questions are still significant.
I'll agree with you, Trump, and Greathouse that "levying war" against the United States falls within the umbrella of insurrection. But, where do you get that trying "to suspend the execution of the laws" constitutes war or insurrection? I don't see any clear argument for that in your post or Greathouse.
Without that, I'm still not convinced the riot at the Capitol constituted an insurrection.
And even with it, I'd need to examine the argument carefully as to the scope - they were definitely trying to at least "suspend" fewer laws, and "suspend" them less clearly than, say, the Portland rioters you mention!
I think this portion of Greathouse (which, to be fair, I didn't include in this post!) answers your question directly:
> "To constitute a levying of war there must be an assemblage of persons in force, to overthrow the government, or to coerce its conduct. The words embrace not only those acts by which war is brought into existence, but also those acts by which war is prosecuted. They levy war who create or carry on war. The offense is complete, whether the force be directed to the entire overthrow of the government throughout the country, or only in certain portions of the country, or to defeat the execution and compel the repeal of one of its public laws."
Ex Parte Bollman and Ex Parte Swartwout, authorities on which Greathouse substantially relied, dig into this a bit more. Although Bollman (which was about Burr's attempted rebellion) was not super analogous to the Capitol Riot, it relied on the "Trial of Fries" case (regarding Fries' Rebellion), which is much much closer to the Capitol Riot. As OG Justice Chase (Sam, not Salmon, acting as circuit justice) wrote:
> It is the opinion of the court that any insurrection or rising of any body of people, within the United States, to attain or effect, by force or violence, any object of a great public nature, or of public and general (or national) concern, is a levying war against the *944 United States, within the contemplation and constitution of the United States. On this general position, the court are of opinion that any such insurrection or rising to resist or to prevent by force or violence, the execution of any statute of the United States for levying or collecting taxes, duties, imposts or excises; or for any other purpose (under any pretence, as that the statute was unequal, burthensome, oppressive, or unconstitutional), is a levying war against the United States within the constitution. The reason for this opinion is, that an insurrection to resist or prevent by force the execution of any statute, has a direct tendency to dissolve all the bonds of society, to destroy all order and all laws, and also all security for the lives, liberties, and property of the citizens of the United States. The court are of opinion that military weapons (as guns and swords, mentioned in the indictment), are not necessary to make such insurrection or rising amount to levying war, because numbers may supply the want of military weapons; and other instruments may effect the intended mischief. The legal guilt of levying war may be incurred without the use of military weapons, or military array. The court are of opinion that the assembling bodies of men, armed and arrayed in a warlike manner, for purposes only of a private nature, is not treason, although the judges and peace officers should be insulted or resisted, or even great outrage committed to the persons and property of our citizens. The true criterion to determine whether acts committed are a treason or a less offence (as a riot) is quo animo the people did assemble. When the intention is universal or general, as to effect some object of a general public nature, it will be treason, and cannot be considered or construed or reduced to a riot. The commission of any number of felonies, riots or other misdemeanors, cannot alter their nature, so as to make them amount to treason; and, on the other hand, if the intention and acts combined amount to treason, they cannot be sunk down to a felony or riot. The intention with which any acts (as felonies, the destruction of houses or the like) are done, will show to what class of crimes the case belongs.
> The court are of opinion that, if a body of people conspire and meditate an insurrection, to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanour; but if they proceed to carry such intention into execution by force, they are guilty of the treason of levying war; and the quantum of the force employed neither lessens nor increases the crime—whether by one hundred or one thousand persons, is wholly immaterial. The court are of opinion, that a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war, but that it is altogether immaterial whether the force used is sufficient to effectuate the object; any force connected with the intention will constitute the crime of levying war.
For these early-19th-century cases, trying to suspend the execution of the laws is the very heart of what makes a certain gathering a war instead of a riot. If we exclude the Capitol Riot from our definition of "insurrection," it seems to me that we must also exclude the entire Whiskey Rebellion, which seems very odd, since the Whiskey Rebellion (and indeed Fries' Rebellion) were well-known to the framers of the 14th Amendment.
I'm interested in your further thinking on this, whenever it is able to happen!
I've been pondering this for a while, and I still don't know what to say because this's reaching the limits of my knowledge of nineteenth-century law. I'm feeling how uncomfortable this conclusion is, but that's because I'm halfway sympathetic to the Whiskey Rebellion itself (and solidly approving the Dorr Rebellion). But, as most of the Founding Fathers decided, and as Paulsen and Baude described, American law has taken a different course.
But granting this point at least for the present, I'm going to emphasize Marshall's requirement for people to be "actually leagued in the general conspiracy". In the War of the Rebellion, one could presume that anyone going off to join the rebel army knew that the rebels were actually levying war on the United States and wanted to help them do that. (That is, they were factually shooting at federal soldiers, suspending the federal laws, etc.)
With the January 6th riot, I keep thinking of my parents' friend who went there to stand outside the Capitol and protest what he considered a stolen election, and didn't know anyone who went inside let alone committed violence. He was partly "leagued" in an agreement to peacefully protest, but the part he was "leagued" in is not the illegal part. This would remain the case regardless of what he may or may not have known about the election: peacefully urging Congress to violate the Constitution remains legal. (Fortunately so for a lot of pundits!)
So the question then becomes whether Trump "leagued in" violence against Congress to "prevent by force or violence, the execution of" the electoral counting. You've definitely proven he was at least negligent. (And, thus, he should've been convicted in impeachment, which would've mooted this present question.) Does that amount to "league[ing] in" the conspiracy? It's a disturbing question. You've argued based on practical effect that it should. If I'm actually considering that question, I'll need to ponder the evidence for myself - as well as take another look at the law and precedent behind Greathouse and the Whiskey Rebellion, since none of the cases seems squarely on point.
"With the January 6th riot, I keep thinking of my parents' friend who went there to stand outside the Capitol and protest what he considered a stolen election, and didn't know anyone who went inside let alone committed violence. He was partly "leagued" in an agreement to peacefully protest, but the part he was "leagued" in is not the illegal part. "
I've been toying with the idea of writing a whole separate post about these folks. They're almost invisible in this post, but they were real, and numerous, and maybe even (I haven't looked that closely) the majority? Just like with the Floyd Riots, most individuals present were both ill-informed about the thing they were protesting AND completely peaceful / unaware of violence.
I think that might be especially useful because I know many who are innately sympathetic to this post have been made almost totally unaware that this angry but peaceful contingent existed. I'd follow the law wherever it goes, but I really don't *want* those people to be drawn inside the lines of insurrection, for all sorts of reason.
I don't think it's nearly so close a question for Trump. My view is that Trump wasn't merely negligent, but that he was *actively engaged* in *issuing commands* to a violent force *that he knew to be violent*. The mob treated him as their honorary leader, and he proudly took on this honor. He was leagued in the conspiracy to a *much* greater extent than many people who were actually on-site -- including, I would say, lots of the people who actually marched through the Rotunda (illegally, but many apparently did not realized this) waving flags.
It may sound like I'm carving out a "good-for-this-ride-only" rationale for targeting Trump and *only* Trump as an insurrectionist. Yet I think Trump's relationship to the insurrection was genuinely unique. Even people on Trump's legal "side" like Ted Cruz and Mike Johnson almost never did the sorts of things Trump did on J6.
I think writing that separate post about the ill-informed peaceful January 6th protestors would be a very good thing. They're almost invisible almost everywhere I've seen, and that's a bad thing. IMO - it sounds like it's a harder question for you? - they're clearly not insurrectionists. They'd be analogous to someone who provided sails for Greathouse's ship without any idea he was planning to go privateering.
Yes, Trump is a very different question. You say he was actively issuing commands to a known-violent force - and that's clearly how the force took it. But did Trump know himself to be doing that? I haven't seen good evidence there (bearing in mind Trump's general state of mind where he generally shows no sign of treating facts seriously). (Yes, having a President with that state of mind is a very bad thing.)
He clearly should have known, so he was clearly at least negligent. But I'm not aware of any on-point cases as to whether negligence like this is enough to be an insurrectionist. I feel reluctant to extend the law to sweep in negligence like this in general for private persons. Yes, disqualification from office could in theory be treated more broadly. But I don't see how the language of the Fourteenth Amendment actually does that.
"But did Trump know himself to be doing that? I haven't seen good evidence there"
What sort of evidence do you have in mind? Tax cheats rarely announce in their emails to their accountants, "Hello, it is my conscious intention to violate federal law by cheating on my taxes." Rather, juries and courts draw reasonable inferences about the subject's state of mind based on the subject's behavior and the actions a reasonable person might take under similar circumstances.
If I am correct, as I have argued, that the controlling standard in this case is preponderance of the evidence, it seems to me that, given the evidence of his actual behavior, the burden of proof is now on Trump to show that he *didn't* intend the obvious consequences of his actions when everyone in Trumpworld was pleading with him to recognize the obvious consequences of his actions.
P.S. I agree that I don't see how the Fourteenth Amendment Section Three would render mere accidental negligence or incompetence a disqualifiying office.
(Intentional negligence for the purpose of advancing an insurrection, on the other hand, I think suffices. For example, if a guard captain sees the advance of a rebel army and simply declines to raise the alarm or raise the drawbridge, despite a responsibility to do so, and the best explanation for this is that he wanted the rebels to win, I think Blackstone would say he's leagued in the conspiracy, although I have no case law ready-to-hand to show that. But that doesn't seem to be what you had in mind.)
Very strongly written!
You raise an important disagreement with Baude-Paulsen that an insurrection must involve force, even if people can aid that insurrection without direct use of force themselves. The scope of what could be punished as insurrection without this requirement should be frightening to anyone. Some of Trump's other efforts to subvert the election might be illegal, but without January 6, they don't constitute insurrection.
Trump contends that an enemy of the United States must actually be a government, which is silly. But the argument gestures vaguely toward an important distinction: an insurrection attempts to replace a government. "Impede" doesn't just mean to obstruct law enforcement--this is obstruction of justice or resisting arrest. An insurrection either claims rule over territory or attempts to supplant the existing government (which claims all the territory).
The CHAZ set forth a secessionist goal, but they didn't defend this goal with force. If they had, insurrection. Meanwhile, you describe Portland as a siege. That implies that the goal of the protesters was to take possession of the courthouse and either compel judges to make certain rulings or declare themselves judges and announce their rulings with force of law. Evidence that this was their goal and that they attempted it with force is what this article is missing to make the case that the protest amounted to insurrection. According to Romney, Republicans in Congress feared for their lives and families if they opposed Trump. Did federal judges reasonably fear for their lives if they didn't make some set of rulings in the protesters' favor? If yes, insurrection. Otherwise, the characterization of a "siege" just cites the Orwellian take of an administration piloting use of force against citizens in preparation for its own plans, already in making at that time, to seize the federal government regardless of electoral outcome.
I hadn't realized you'd voted for Trump both times! Given prior articles, I'd had the impression you voted for him grudgingly the first time, then refrained from doing so the second. Your 2020 fiction on a second civil war ignored something important: Trump had signaled clearly that he would deny the results not only of an ambiguous election, but of any election he did not win. Anyone paying the least attention knew that, if Trump did not win the election, an insurrection would come. The only questions were how severe it would be and whether it would succeed, and one of the factors controlling success would be the closeness of the election.
Was this not plain to you? If it had been, would you still have voted for him a second time?
In backwards order:
I sometimes refer to myself as Schrodinger's Trump Voter: it's perfectly fair to read me either way. I did not, in fact, vote for him either time, but I certainly would have in 2016 if I had thought Minnesota might be decisive. (In fact, I spent 45 full minutes walking around the polling place trying to decide before I went to get my ballot, and, if memory serves I STILL spoiled my first ballot as I changed my mind again on the spot.)
In 2020, I was sure enough early on that Minnesota would *not* be decisive that I was never really put to the test, so I don't know what I would have done, if it had come down to it. (Another great benefit of the electoral college: it frees many of us from the awful responsibility of actually having an impact on the final presidential result.) However, I maintained before the election that it *might* be ethical to vote for Trump (with great care), and that it *was not* ethical to vote for Biden -- so, no matter how I cast my vote, I certainly *justified* voting for Trump both times. I think I'm now to the point where I have to say that it isn't ethical to vote for either. So I guess, as happens all too often, I end up at Alasdair MacIntyre's positions, just 20 years too slow. (referring to this: http://web.archive.org/web/20140802011938/http://brandon.multics.org/library/Alasdair%20MacIntyre/macintyre2004vote.html)
I can honestly say, though, that I was actually surprised by the depth to which Trump was willing to go on such a thin case. As you note, my big civil war post was premised on there being an actually-contestable election claim, which, naturally, Trump would never ever let go of. But we didn't have an actually-contestable election claim! Trump generated it out of thin air! That part wasn't surprising... but my sense had been that he only told these ridiculous lies as verbal face-saving measures before his actual actions showed him sheepishly backing down (or just losing interest) (or being talked down by his team), as happened numerous times during his administration. So I *was* mildly surprised when he not only clung to this particular lie with such determination, backed it up with action, cast aside everyone in his team who opposed him, and -- above all -- convinced so many people of such a clear falsehood. In retrospect, clearly, that was my mistake, but I really thought that, in an election with a clear outcome, we would have resolution and Trump angrily stepping aside (without any concession) by mid-December. I was disappointed more by those around Trump than by Trump himself; you may or may not recall that, shortly before J6, this blog said that Ted Cruz ought to be exiled from the United States for his cynical support of what he knew to be Trump's lies.
That asymmetric failure of the Republican Party and the conservative movement is still a very bitter pill for me to swallow, and I don't know whether I've swallowed it as completely as I ought to.
SUBSTACK SAYS: Please type a shorter comment
Gosh darn it, Substack! Comments are a platform for rambles! LET THE PEOPLE RAMBLE!
Part II inbound.
“Let the people ramble” indeed! 😂
[PART II - CONTINUED FROM SIBLING]
"Trump contends that an enemy of the United States must actually be a government, which is silly."
I didn't get into this, because I wasn't contesting Trump's definition of "insurrection," but, when you dig into the precedents, it's not nearly as silly as you think! When it comes to the Treason Clause, especially, the definition of "enemies" is very narrowly constrained -- not only does an "enemy" have to be a recognized foreign government, but we have to be in a state of *declared* ware against that government! That's a big reason why there hasn't been a treason prosecution since 1945; the U.S. has actually declared war against an actual foreign government somewhere between zero and a small number of times since then (depending on how you understand the war-declaration power).
When it comes to insurrections, I still think there's a good chance he's wrong, but there are at least good reasons to think that the Disqualification Clause's aid-and-comfort portions were indeed only intended to apply against pretended rebel governments, not any old mob. (Of course, as I note in the piece, the definition of "levying war" or "engaging" in insurrection can be read so broadly -- and may NEED to be read so broadly -- that it doesn't really matter.)
"an insurrection attempts to replace a government... An insurrection either claims rule over territory or attempts to supplant the existing government (which claims all the territory)."
Interestingly, this is mistaken! No case law that I am aware of has *ever* held that an insurrection must necessarily be attempting to replace the regime, or even claim territory. The crucial distinction for insurrections is whether they have a "general public purpose," which I vaguely gestured toward in the article but didn't drill down on (because it wasn't really relevant). Territorial claims are irrelevant. If you attempt to systematically impede or prevent the execution of even a single law, *by violence,* that's insurrection.
The difference between public purpose and private purpose may be illustrated by this example: a bank robber who evades police and resists arrest is attempting to prevent the execution of the law in *one specific instance* -- his own. But someone who (violently) tries to make it impossible for the police to enforce the law against bank robbery *in general*, so that *everyone* can rob banks (I'm thinking of Bane in The Dark Knight Returns, although he ultimately went much further than that)... THAT is an insurrection. (Actually, I suspect quite a lot of Batman villains could be disqualified from holding public office under Section Three, but I am not going to think about this for more than the 45 seconds I have already thought about it.)
That's what makes the Whiskey Rebellion an insurrection. In general, the mob had no desire to overthrow the Constitution or the United States *overall*. They were merely attempting to prevent, by organized violence, the general execution of one particular law, for everyone in one particular locale.
Now, Baude & Paulsen argue, I think very interestingly, that one of the clearest differences between an insurrection and rebellion is an attempt at regime replacement. But an insurrection does not necessarily have any designs on regime replacement.
That's important for the case against Trump, since it's at least arguable that he and his forces had no desire to replace the regime, either. They all identified as American patriots from start to finish, and waved the flag of the Revolution. All they wanted to do was suspend the lawful execution of the Twelfth Amendment (which many of them had erroneously concluded was unlawful) (as Baude and Paulsen show, though, there's no "mistake of law" defense to insurrection, so their error does them no good).
There's more good reading to be had about "general public purpose" and the nature of insurrection in the literature, although -- unfortunately -- it's all starting to blur together for me. I think I read about this first in Myles Lynch or Gerard Magliocca's first papers on Section 3, which are both available for free on SSRN.
"That implies that the goal of the protesters was to take possession of the courthouse and either compel judges to make certain rulings or declare themselves judges and announce their rulings with force of law. Evidence that this was their goal and that they attempted it with force is what this article is missing to make the case that the protest amounted to insurrection."
For the reasons above, I think this is slightly off: if the goal of the attackers was to establish themselves as the new federal district court for the District of Oregon, that would be a rebellion -- but it's an insurrection so long as they were attempting (even ineffectually!) to suspend or substantially impede the general operation of federal law within the district. That is, if their purpose was not to secure freedom for this particular prisoner or that particular defendant, but to generally increase the amount of anarchy in Oregon, or anything like that, that's a "general public purpose" and they're insurrectionists.
You're correct, though, that I did not do the work of making the case that this actually *was* their goal. I relied on very shallow press reports. I could be wrong.
In general, though, I think this is a good rule of thumb: if you throw a Molotov at a federal building, or punch a federal law enforcement agent in the head, or are standing next to somebody who does and don't immediately retire from the field, you should be prepared to petition Congress to lift a disqualification before running for public office. (I do not imagine that this applies to very many people.)
If I am correct that there's a distinction between insurrection against a state government and insurrection against the federal government, then that shields most people from consequences under 14AS3, because most police forces are state officers. I'm not sure that is correct, because I didn't read about it anywhere -- I came up with it myself -- and I'm aware of no precedents on it, but Baude-Paulsen seemed to come up with a similar idea in their Footnote 412, which gives me some measure of ease about it.
"The scope of what could be punished as insurrection without this requirement should be frightening to anyone."
Agreed. Of course, you know me, I'll follow the text where the text takes me, even if it leads to bad consequences, but I was relieved to realize that, from what I can see, the text *does* strongly suggest a requirement of violence. Otherwise, I'm not totally sure what the outer boundaries of "insurrection" would be.
That being said, Baude-Paulsen's case for the possibility of non-violent insurrection is, as a matter of text, nothing to sneer at. They do amass an impressive body of law and logic surrounding the Secession Crisis of 1860-61 (which has always been one of Paulsen's areas of expertise). I just don't think it holds up in light of the intratextual evidence. But, as always, one must ask oneself the question: is that what I believe because it's where the text led me, or did I force the text to take me there because it's where I wanted to be for policy reasons?
I am actually very curious to find out what Baude & Paulsen make of CHAZ, since I had to guess.
Anyway, thanks for reading, obviously lots to say and to think about. This stuff has all been held inside me for weeks and anyone who gives me half a chance is at risk of setting off an explosion of James Disqualification Takes.
(And we haven't even GLANCED at the technical issues that are ACTUALLY AT ISSUE in the MN case right now!)
"No case law that I am aware of has *ever* held that an insurrection must necessarily be attempting to replace the regime, or even claim territory. The crucial distinction for insurrections is whether they have a "general public purpose,""
You're right! I blurred the distinction between insurrection and rebellion. Thanks for the correction. The Treason clause of the Constitution, as you say, was intentionally framed very narrowly, so it's possible to argue that the Disqualification Clause could similarly apply only to a government or rebel would-be government. But the Disqualification Clause says insurrection OR rebellion. The case law you cite suggests that American law regards insurrection as prevention of the execution of law through violence, and doesn't require claiming territory or intent to replace the regime, which constitutes rebellion.
Amusingly enough, I started writing a paragraph about public versus private purpose for the prior comment, even using the same example of bank robbers--but tried to stay succinct. Usurpation of power claimed by the government is at stake in both insurrection and rebellion, but the latter sets more ambitious purpose.
"That being said, Baude-Paulsen's case for the possibility of non-violent insurrection is, as a matter of text, nothing to sneer at. They do amass an impressive body of law and logic surrounding the Secession Crisis of 1860-61"
Wait, if the Secession Crisis is the example at stake, wouldn't that be *rebellion* without violence? Is it possible that insurrection without violence isn't the law, and shouldn't be for reasons we broadly agree on, but that rebellion without violence could exist under the law? If a group never fires a shot, but could and clearly would back its attempt at regime replacement with violence if it proceeded several more steps successfully, could their actions constitute rebellion? I'm not sure if this is a position I would advocate for. However, since a rebellion gets access to the state repressive machinery if it succeeds, it's reasonable that the standards to qualify as one might be different from insurrection.
"if you throw a Molotov at a federal building, or punch a federal law enforcement agent in the head, or are standing next to somebody who does and don't immediately retire from the field, you should be prepared to petition Congress to lift a disqualification before running for public office"
Broadly, I cannot disagree with this! But let's look at how your examples of targets include first a building and then a person, and how these might be different. Here's a question worth asking:
Was Martin Luther King an insurrectionist? He and his movement definitely obstructed laws with public purpose, and in his time, he was accused of inciting hatred and violence, and mass media often associated him with the riots that were also happening.
By the case law you describe, it sounds possible he was! And that Bernie Sanders, having marched with him, should be ineligible for office. Our 19th-century laws weren't written with foresight of 20th-century satyagraha, the form of political action where King took inspiration from Gandhi. Satyagraha literally translates as "truth-force," for which "passive resistance" or "non-violent resistance" are terrible renderings. Strapping yourself to railroad tracks is supposed to be a form of force, but not violence. It's a political strategy that compels the public display of the violence that an existing system imposes upon you, and which disrupts the function of the state to make your continued oppression more costly.
If our insurrection definitions rely on "force," and include damage to property as force, or interposition of one's own body as force, then many kinds of protest become insurrection. American law was written by the propertied and tends to prioritize property, so the text of the law, or particularly the text of 19th-century precedent, might define as insurrection many things we've collectively decided are not.
This has bearing on Portland. Their public purposes, according to their posters and statements at the time, were these:
1. Reallocation of city and state funds from police to social programs
2. Resignation of the mayor (who didn't support #1)
I don't think they threatened or committed violence against people in any way that would obstruct city allocation of funds or the continued legal service of the mayor. If our definition is around violence that advances your public purpose, we have a clear no, even if we have non-violent behaviors that break other laws and then violence in resisting arrest. We also still have a clear yes for January 6: there was threatened violence against members of Congress in direct pursuit of their public purpose, and any threat to law enforcement in the storming of the capitol directly served the goal of achieving that threat to Congress.
But American law and precedent might not be that narrow--the examples you cite suggest it isn't. Law and precedent might also be at odds, if precedent has allowed definitions of force and their relationship with public purpose to sway widely with the fears of the time. I haven't argued here that Portland definitely wasn't an insurrection. Rather, I'm saying that arguing that it was opens some sticky questions that could affect clearly non-violent protest, in ways that January 6 doesn't.
"I can honestly say, though, that I was actually surprised by the depth to which Trump was willing to go on such a thin case... That asymmetric failure of the Republican Party and the conservative movement is still a very bitter pill for me to swallow, and I don't know whether I've swallowed it as completely as I ought to."
One of the reasons I discuss politics with you, and regard you as a friend despite seeing many of your politics as harmful, is that you convinced me early on that you make arguments in good faith and genuinely believe that you are advancing the positions of most good or least harm. Trumpism doesn't care about the strength of any case. It says whatever would need to be true to take the steps that it wants, regardless of whether this requires an entirely alternative set of facts. And it announces this fairly openly! That Trumpism has co-opted the Republican party and the conservative movement must cause you and people like you a lot of distress.
Edit: Sanders hadn't held federal office at the time of his marching with MLK, so the Disqualification Clause wouldn't apply to him. But that's irrelevant to the argument at hand, which would apply to anyone who did hold federal office. Sanders was just the currently serving senator who came to mind who had participated in the Civil Rights Movement of the 60s.
"Wait, if the Secession Crisis is the example at stake, wouldn't that be *rebellion* without violence?"
Ope, yep, that was just sloppy on my part. I certainly meant to type "rebellion" there. Awfully silly of me to distinguish between the two so carefully and then just... forget! Thanks for the correction.
"Was Martin Luther King an insurrectionist?"
I don't think so, because of his constant and unceasing demand that his movement remain non-violent. This is a summary judgment, but I just don't think that his sit-ins, marches, and passive arrests constitute "force" within the 19th-century meaning of the term. It's true that the early insurrection cases had no concept of non-violent civil disobedience, but neither did they define insurrection so broadly that it might include non-violent civil disobedience. (I'm not even sure you can say that non-violent civil disobedience involves any attempt to suspend the execution of the laws! When arrested, the hallmark of the King movement was to go peacefully!) When you read them both, the Letter From A Birmingham Jail is just not the same kind of thing as Trump's ellipse speech (or anything Trump did afterward), and, without sitting around plotting against MLK all night, I just don't think there's a plausible case out there that could make me think otherwise.
You're certainly correct that many people tried to associate MLK with various acts of violence, but I think King could definitively prove, to any court, that his position was unequivocally one of peace -- in precisely the way that Trump could not.
"If our insurrection definitions rely on "force," and include damage to property as force, or interposition of one's own body as force, then many kinds of protest become insurrection. American law was written by the propertied and tends to prioritize property, so the text of the law, or particularly the text of 19th-century precedent, might define as insurrection many things we've collectively decided are not."
Without taking any particular position on any specific form of protest, I don't think that we *have* collectively decided that anything is or is not insurrection. Certainly we haven't ratified an amendment saying, "This thing that people used to see as insurrection is now exempt." We haven't even passed a *law* to that effect. I don't even think such a thing would be *popular*, although it's difficult to tell without putting it to the democratic test. (I recognize that one reason it hasn't been put to the democratic test is because it didn't really come up for a long time.)
"I don't think they threatened or committed violence against people in any way that would obstruct city allocation of funds or the continued legal service of the mayor."
As I've admitted, I don't know enough specifics about the Portland attacks / riots / insurrection to say with certainty whether it fell within the Greathouse definition of an insurrection. All I can say is that the distinction you draw right here strikes me as parsing the public meaning of a given act of violence a little too fine, but I can see that you're testing the boundaries
"Rather, I'm saying that arguing that it was opens some sticky questions that could affect clearly non-violent protest, in ways that January 6 doesn't."
Yes, I hear that.
I think we are on the same page on this. We both agree that, as a public policy matter, we think it would be a *bad thing* for non-violent protest to fall under the Disqualification Clause. We both agree that, as a legal matter, it seems that non-violent protest *does not* fall under the Disqualification Clause. We both agree that, whatever the specifics of what happened in Portland, it *does* raise some line-drawing questions that J6 itself does not. We agree that, for public-policy reasons, it is important that, if non-violent protests are ever included in the definition of "insurrection," it would probably be a good idea to change the definition.
Just to complicate things more, as J6 itself shows, you can have an insurrection going on in one part of a crowd while the other part is engaged in peaceful protest and isn't even aware of anything bad going on nearby.
"That Trumpism has co-opted the Republican party and the conservative movement must cause you and people like you a lot of distress."
Yes.
For a fun time, you can watch in as I gradually melt down over the full course of 2016 (starting on Jaunary 26)! https://www.jamesjheaney.com/page/23/
Talk about a journey… footnote 12 could have been an entire break-out post (like the ‘Biden really win’ companion piece)!
I really appreciate the dedication you take to both providing thorough, researched facts throughout this series as well as taking such a dogmatic steel-man approach to each side’s claims.
I'm late to commenting on this post, but I've been busy, and the questions are still significant.
I'll agree with you, Trump, and Greathouse that "levying war" against the United States falls within the umbrella of insurrection. But, where do you get that trying "to suspend the execution of the laws" constitutes war or insurrection? I don't see any clear argument for that in your post or Greathouse.
Without that, I'm still not convinced the riot at the Capitol constituted an insurrection.
And even with it, I'd need to examine the argument carefully as to the scope - they were definitely trying to at least "suspend" fewer laws, and "suspend" them less clearly than, say, the Portland rioters you mention!
I think this portion of Greathouse (which, to be fair, I didn't include in this post!) answers your question directly:
> "To constitute a levying of war there must be an assemblage of persons in force, to overthrow the government, or to coerce its conduct. The words embrace not only those acts by which war is brought into existence, but also those acts by which war is prosecuted. They levy war who create or carry on war. The offense is complete, whether the force be directed to the entire overthrow of the government throughout the country, or only in certain portions of the country, or to defeat the execution and compel the repeal of one of its public laws."
Ex Parte Bollman and Ex Parte Swartwout, authorities on which Greathouse substantially relied, dig into this a bit more. Although Bollman (which was about Burr's attempted rebellion) was not super analogous to the Capitol Riot, it relied on the "Trial of Fries" case (regarding Fries' Rebellion), which is much much closer to the Capitol Riot. As OG Justice Chase (Sam, not Salmon, acting as circuit justice) wrote:
> It is the opinion of the court that any insurrection or rising of any body of people, within the United States, to attain or effect, by force or violence, any object of a great public nature, or of public and general (or national) concern, is a levying war against the *944 United States, within the contemplation and constitution of the United States. On this general position, the court are of opinion that any such insurrection or rising to resist or to prevent by force or violence, the execution of any statute of the United States for levying or collecting taxes, duties, imposts or excises; or for any other purpose (under any pretence, as that the statute was unequal, burthensome, oppressive, or unconstitutional), is a levying war against the United States within the constitution. The reason for this opinion is, that an insurrection to resist or prevent by force the execution of any statute, has a direct tendency to dissolve all the bonds of society, to destroy all order and all laws, and also all security for the lives, liberties, and property of the citizens of the United States. The court are of opinion that military weapons (as guns and swords, mentioned in the indictment), are not necessary to make such insurrection or rising amount to levying war, because numbers may supply the want of military weapons; and other instruments may effect the intended mischief. The legal guilt of levying war may be incurred without the use of military weapons, or military array. The court are of opinion that the assembling bodies of men, armed and arrayed in a warlike manner, for purposes only of a private nature, is not treason, although the judges and peace officers should be insulted or resisted, or even great outrage committed to the persons and property of our citizens. The true criterion to determine whether acts committed are a treason or a less offence (as a riot) is quo animo the people did assemble. When the intention is universal or general, as to effect some object of a general public nature, it will be treason, and cannot be considered or construed or reduced to a riot. The commission of any number of felonies, riots or other misdemeanors, cannot alter their nature, so as to make them amount to treason; and, on the other hand, if the intention and acts combined amount to treason, they cannot be sunk down to a felony or riot. The intention with which any acts (as felonies, the destruction of houses or the like) are done, will show to what class of crimes the case belongs.
> The court are of opinion that, if a body of people conspire and meditate an insurrection, to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanour; but if they proceed to carry such intention into execution by force, they are guilty of the treason of levying war; and the quantum of the force employed neither lessens nor increases the crime—whether by one hundred or one thousand persons, is wholly immaterial. The court are of opinion, that a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war, but that it is altogether immaterial whether the force used is sufficient to effectuate the object; any force connected with the intention will constitute the crime of levying war.
For these early-19th-century cases, trying to suspend the execution of the laws is the very heart of what makes a certain gathering a war instead of a riot. If we exclude the Capitol Riot from our definition of "insurrection," it seems to me that we must also exclude the entire Whiskey Rebellion, which seems very odd, since the Whiskey Rebellion (and indeed Fries' Rebellion) were well-known to the framers of the 14th Amendment.
I'm interested in your further thinking on this, whenever it is able to happen!
I've been pondering this for a while, and I still don't know what to say because this's reaching the limits of my knowledge of nineteenth-century law. I'm feeling how uncomfortable this conclusion is, but that's because I'm halfway sympathetic to the Whiskey Rebellion itself (and solidly approving the Dorr Rebellion). But, as most of the Founding Fathers decided, and as Paulsen and Baude described, American law has taken a different course.
But granting this point at least for the present, I'm going to emphasize Marshall's requirement for people to be "actually leagued in the general conspiracy". In the War of the Rebellion, one could presume that anyone going off to join the rebel army knew that the rebels were actually levying war on the United States and wanted to help them do that. (That is, they were factually shooting at federal soldiers, suspending the federal laws, etc.)
With the January 6th riot, I keep thinking of my parents' friend who went there to stand outside the Capitol and protest what he considered a stolen election, and didn't know anyone who went inside let alone committed violence. He was partly "leagued" in an agreement to peacefully protest, but the part he was "leagued" in is not the illegal part. This would remain the case regardless of what he may or may not have known about the election: peacefully urging Congress to violate the Constitution remains legal. (Fortunately so for a lot of pundits!)
So the question then becomes whether Trump "leagued in" violence against Congress to "prevent by force or violence, the execution of" the electoral counting. You've definitely proven he was at least negligent. (And, thus, he should've been convicted in impeachment, which would've mooted this present question.) Does that amount to "league[ing] in" the conspiracy? It's a disturbing question. You've argued based on practical effect that it should. If I'm actually considering that question, I'll need to ponder the evidence for myself - as well as take another look at the law and precedent behind Greathouse and the Whiskey Rebellion, since none of the cases seems squarely on point.
"With the January 6th riot, I keep thinking of my parents' friend who went there to stand outside the Capitol and protest what he considered a stolen election, and didn't know anyone who went inside let alone committed violence. He was partly "leagued" in an agreement to peacefully protest, but the part he was "leagued" in is not the illegal part. "
I've been toying with the idea of writing a whole separate post about these folks. They're almost invisible in this post, but they were real, and numerous, and maybe even (I haven't looked that closely) the majority? Just like with the Floyd Riots, most individuals present were both ill-informed about the thing they were protesting AND completely peaceful / unaware of violence.
I think that might be especially useful because I know many who are innately sympathetic to this post have been made almost totally unaware that this angry but peaceful contingent existed. I'd follow the law wherever it goes, but I really don't *want* those people to be drawn inside the lines of insurrection, for all sorts of reason.
I don't think it's nearly so close a question for Trump. My view is that Trump wasn't merely negligent, but that he was *actively engaged* in *issuing commands* to a violent force *that he knew to be violent*. The mob treated him as their honorary leader, and he proudly took on this honor. He was leagued in the conspiracy to a *much* greater extent than many people who were actually on-site -- including, I would say, lots of the people who actually marched through the Rotunda (illegally, but many apparently did not realized this) waving flags.
It may sound like I'm carving out a "good-for-this-ride-only" rationale for targeting Trump and *only* Trump as an insurrectionist. Yet I think Trump's relationship to the insurrection was genuinely unique. Even people on Trump's legal "side" like Ted Cruz and Mike Johnson almost never did the sorts of things Trump did on J6.
I think writing that separate post about the ill-informed peaceful January 6th protestors would be a very good thing. They're almost invisible almost everywhere I've seen, and that's a bad thing. IMO - it sounds like it's a harder question for you? - they're clearly not insurrectionists. They'd be analogous to someone who provided sails for Greathouse's ship without any idea he was planning to go privateering.
Yes, Trump is a very different question. You say he was actively issuing commands to a known-violent force - and that's clearly how the force took it. But did Trump know himself to be doing that? I haven't seen good evidence there (bearing in mind Trump's general state of mind where he generally shows no sign of treating facts seriously). (Yes, having a President with that state of mind is a very bad thing.)
He clearly should have known, so he was clearly at least negligent. But I'm not aware of any on-point cases as to whether negligence like this is enough to be an insurrectionist. I feel reluctant to extend the law to sweep in negligence like this in general for private persons. Yes, disqualification from office could in theory be treated more broadly. But I don't see how the language of the Fourteenth Amendment actually does that.
"But did Trump know himself to be doing that? I haven't seen good evidence there"
What sort of evidence do you have in mind? Tax cheats rarely announce in their emails to their accountants, "Hello, it is my conscious intention to violate federal law by cheating on my taxes." Rather, juries and courts draw reasonable inferences about the subject's state of mind based on the subject's behavior and the actions a reasonable person might take under similar circumstances.
If I am correct, as I have argued, that the controlling standard in this case is preponderance of the evidence, it seems to me that, given the evidence of his actual behavior, the burden of proof is now on Trump to show that he *didn't* intend the obvious consequences of his actions when everyone in Trumpworld was pleading with him to recognize the obvious consequences of his actions.
P.S. I agree that I don't see how the Fourteenth Amendment Section Three would render mere accidental negligence or incompetence a disqualifiying office.
(Intentional negligence for the purpose of advancing an insurrection, on the other hand, I think suffices. For example, if a guard captain sees the advance of a rebel army and simply declines to raise the alarm or raise the drawbridge, despite a responsibility to do so, and the best explanation for this is that he wanted the rebels to win, I think Blackstone would say he's leagued in the conspiracy, although I have no case law ready-to-hand to show that. But that doesn't seem to be what you had in mind.)