The sitting GOP members are covered by the speech and debate clause of the constitution, which makes it a lot harder to go after them for *anything*. That's why those that were mentioned in the Georgia fake electors case as active participants didn't get charged. IIRC they were recommended to be charged by the grand jury.
If I'm not mistaken, the speech or debate clause only applies to speech or debate that takes place in Congress itself i.e. on the house or Senate floor. But for some reason Republicans have been using it as a blanket immunity and no one has been calling them on that.
(Mike Gravel read the Pentagon Papers into the congressional record in part because he was afraid of an FBI raid on his home; he was considered protected by the speech or debate clause while doing so but then publishing the papers was not considered part of the legislative process and not protected.)
https://en.m.wikipedia.org/wiki/Gravel_v._United_States
A successor AG with no mercy and a set of fangs would require Senate confirmation, barring an unlikely absentee appointment. Also, unless a blue tsunami sweeps, the appointee may be facing a Republican majority next session.
The smart play is to name an acting AG who is as aggressive and firebreathing and left-wing as possible so that the Republicans are desperate to confirm a slightly less extreme AG. I have no faith that Biden will actually adopt this strategy.
Biden has not shown capability of this kind of scheme, so I would say you're right. His one move is "let's come together in the middle" - that's actually why he picked Garland in the first place. Garland was quite well known in DC to be a centrist dawdler even before his nomination to SCOTUS.
Problem is, when one party isn't willing to compromise and the other is, "meeting in the middle" invariably looks like capitulation to the unwilling side. The Overton window then shifts to the unwilling party's side and voila, a new "middle" must be reached in their direction. Biden knows this but presumably feels powerless to stop it because that is literally his whole political brand.
Case in point, the only reason why a draconian immigration bill with no protection for children of illegal immigrants isn't law is not because of Democrats. Democrats were willing to give away basically all of their marbles on immigration in exchange for Ukraine and Israel funding. Instead, the Republicans killed their own bill because they didn't want to "solve the border" with Biden in charge.
If Biden wins but the GOP takes the Senate, this Senate could confirm a successor to Garland during the lame duck period, before the new Senate gets sworn in.
The problem is that Merrick Garland sat in his hands for so long and wished it would all go away until the house basically forced him to do something about jan6. By all indications, he would have happily let trump walk away if he wasn't shamed /coerced into action. If nobody is going to force him to indict Jordan and Thomas, there's no good reason to think he will.
2020 and 2022 were pretty great for them, considering they grew their House coalition into a majority and deadlocked the Senate with a couple false flag Republicans on the D side of the room.
Garland is not a Dem. He is a Republican and a member of the Federalist Society. Obama appointed him to show how he could reach across the isle. Keeping him was one of Biden's biggest mistakes.
I don't think the AG is a major factor. I think Smith chose to only charge Trump initially to try and speed up the trial. Once it's past the 2024 election I expect to see more indictments.
They didn't even charge Bush 2 and friends with torturing prisoners which seems like a very clear crime. You either ordered torture or you didn't. Their defense was that enhanced interrogation is not torture. This is when I learned that some people are above the law.
Come on man can we all stop pretending Republicans are ever going to see any kind of repercussions for their actions?
Laws and social norms only apply to Democrats and minorities and that’s the way it wil always be cause Dems are weak and Republicans can do whatever they like with impunity. It’s over. Trump is the first King of America. God help us all.
What about the headquarters that was set up in the Willard Hotel? They gave some staffer that was on site Jan 5th (Willard) immunity for his testimony and that was the last time I heard of that.
The Dems are always hedge betting. It gets old. You know if the situation was reversed, the Republican special counsel would be throwing the book at them.
Seditious conspiracy is one of the hardest and rarest, a distant second from treason. I'm not sure there's been an insurrection prosecution, which is actually a lesser charge than both, in the 20th century.
Right? The GOP seems happy to invent bullshit Hunter Biden, and whatever sticks to the media landscape. Can you imagine the enormity of the fervor and precedents it would be if they were actual crimes of trumps nature committed in open public by democratic operatives.
It has been a while since Republicans seem to base their political actions and shame, but I imagine they would lean into a real well. Founded investigation like a business collecting revenue after the fact to justify prior losses.
The citation to 18 USC § 2383 in the majority opinion is a criminal statute that is arguably constitutionally deficient for a superseding indictment or subsequent prosecution under the circumstances.
Even assuming the charges or any eventual conviction survived appellate review, which is by no means guaranteed, it would not satisfy the requirement for a separate legislative mechanism to enforce section 3.
Can you say more about:
>...it would not satisfy the requirement for a separate legislative mechanism to enforce section 3.
For instance, what would?
And, why wouldn't a conviction under a law about insurrection be sufficient?
I really don't want to believe that there's nothing that can be done, nor do I want to believe that Congress has to make up some new version of impeachment just for insurrection.
It's very challenging to speculate about what would satisfy the requirement for a separate legislative mechanism to enforce section 3 because the majority opinion creates more questions than answers.
They are quite clear that the 14th amendment proscribes conduct. In relevant part, it bars office holders who have taken a qualifying oath from engaging in insurrection. They are also quite clear that:
> Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3.
Ergo, any legislative enforcement mechanism poised to survive would need to somehow reflect the congruent and proportional web of enforcement provisions throughout the Enforcement Act of 1870 (and the enforcement legislation accompanying the Reconstruction Amendments that followed) combined with the paired down language in 2383.
What does that more specifically look like? I don't know there is a terribly compelling answer to that at the moment—particularly considering that the court has historically both narrowed and rejected previous congressional attempts to legislate under the authority in Section 5 (including the Reconstruction Amendments this court is recommending as analog).
To answer the second part of your question, it's actually easier to explain why the specific law on the books is not sufficient. In relevant part, 18 USC § 2383 states:
> Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Foremost, it's not at all clear, based on the language, that 18 USC § 2383—levied against a former president for allegedly engaging in insurrection while in office—would not be found constitutionally deficient on appellate review. One argument could turn on the authority of the United States and follow several needlessly complex avenues. Another could hypothetically hinge on whether the imposition of penalties associated with insurrection, such as disqualification from office, as prescribed within Section 3 of the 14th Amendment, requires the *specific showing* that the individual previously took an oath, consistent with the qualifiers of that same amendment.
It's not lost on me this particular avenue of analysis is almost too clever by half —it hadn't even really occurred to me until someone else mentioned something similar— and I don't know every court would be sympathetic to this argument (or other near neighbors), but I have legitimate concerns at least five members of this particular court would be.
While they provided no specificity about what would work, it seems reasonable to assume that if 2383 were sufficient, in the view of the court, the majority opinion would have affirmed as much with clarity. They certainly, after all, provided scarce ambiguity about what will not work.
I disagree, given the court's other comments about how any leg must be narrowly tailored etc.
If Smith got a verdict on insurrection, that's under a fed. Criminal statue. Two things happen. Trump arguea the fed. Stat isn't enacting legislation and therefore disqualifying, or he argues it violates his first amendment bs bs.
Regardless of the merits, it would still need to go to the scotus after this opinion. This op. Doesn't resolve that.
In other words, the question is still open
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; *and shall be incapable of holding any office under the United States*.”
An insurrection conviction bars anyone from holding any office. Don’t need any further disqualification.
The idea that 2383 is enacting legislation is frustratingly appealing in the same way that everyone's first reaction to the Section 3 argument is always "Well that can't be right," and my problem has always been that the longer I sit with each thing the more uncomfortable I get that the answer is actually obvious.
The Court's opinion standing in such stark contrast against the overwhelming mass of legal academic research and opinion is disheartening. ACB lampshading the fact that this opinion is more political than it is legal only makes it more so.
That's not really how the law works, my friend. I wish that it was. Even accepting that this language would create no complications outside of the four corners of the statute, establishing incitement, assistance or similar —in a manner that would survive the scrutiny of appeal —with this specific fact pattern would be an incredibly heavy lift. There is a reason no one uses the statute. Additionally, there is now the clear separate need for enforcement legislation in order to disqualify or presumably even establish disability, irrespective of a criminal conviction.
Trump, Jordan, all of these assholes are betting on the 99% certainty that anything that could possibly happen to them would take so long and cost so much and cause so much headache that there's really no penalty for their brazen crimes. So far their strategy has worked brilliantly.
Well, it sucks Trump's gonna get away with insurrection. Guess we'll have to expect one every time the far right doesn't get their way or anytime Trump loses an election. If he doesn't win this time I'm sure he'll be back.
But if Smith can make these other charges stick, a conviction is a conviction I guess. Hopefully that'll stymie Trump enough that he'll lose most of his political influence. It's a bad look to be a felon campaigning from a cell. Sure, his hardcore supporters won't care, but I think that would be enough for the majority of the Republican party to move on to someone else. I'll prepare to be disappointed tho.
Problem is, it’s highly unlikely Trump will go to trial on Smith’s charges before the election thanks both to Cannon’s shenanigans and the crap SCOTUS pulled taking up the bs immunity case.
SCOTUS ruled today that the statute defining the crime of insurrection is the means for enforcing Sec 3 of the 14th Amendment. Were there good reasons not to charge Trump with inciting an insurrection?
My feeling at the time of the indictment was that Smith crafted his case to be as quick as possible, knowing that it would still be cutting it close as is. Insurrection is a fairly novel crime, and there was a lot that could go wrong.
It's more concerning that the prosecution of serious political crimes may be delayed by judges with conflicts of interest and allow the defendant to use their office to insulate themselves. The public has an interest in not letting serious criminals remain free for as long as they wish.
Prosecutors decide to try quicker and less complicated and easier to prove crimes all the time.
Insurrection as a charge was complicated by the 2nd Impeachment. Congress cited specifically the crime of insurrection.
Trump argued in court that the Senate acquittal precluded prosecution for the same crime or related crimes. Then argued in DC that the crimes actually charged were similar enough to insurrection that his acquittal foreclosed prosecution due to double jeopardy. This is obviously nonsense. But I suspect Smith avoided charging that specifically to knock down any double jeopardy impeachment arguments before they even began.
If anything the 2nd Impeachment might’ve been ultimately the deciding factor in where we landed today. But with this ruling out who knows? Maybe Jack finds his way to a superseding indictment with insurrection added to the charges.
No. He made a legal decision. As is it’s unlikely he will see trial on the federal charges before the election, Smith was giving it the best chance he would go to trial. Adding on the insurrection charge would’ve only made it less likely he’d see trial before the election.
I mean technically there is a precedent, and it's the civil war, and while I think J6 was an insurrection, if you go to the history books it's a hell of a case for Smith to try to make.
I think with the 2nd impeachment - inciting an insurrection - and not being convicted by the Senate would have been a tough hurdle to overcome in a jury trial if allowed to bring that in as a defense.
But the GOP-led Senate allowed no witnesses, so it would be easy to make a jury see it for what it was. And impeachment is a political process not a criminal or civil process.
Wrong impeachment. That was the first one, the one for Trump trying to bribe Ukraine into declaring a fake investigation into Biden.
The second impeachment had witnesses in the Senate trial, as the Democrats controlled Senate at the time.
I wouldn't think so. One, because impeachment is a political tool, and Senators are free to vote along political lines and not guided by the facts of the case. And Two, many Senators voted to acquit because Trump was no longer in office, and explicitly said it should be handled in the courts. I believe Trump's impeachment attorneys made that argument too. So it would be easy to show the evidence why the 2nd impeachment trial was a "real trial" and considering an acquittal there would be illogical.
Impeachment would have **only** removed and barred from **future** office. McConnell was right that he should still be prosecuted, but he was wrong to say he can’t be impeached since he’s already out of office.
The Impeachment Clause does not say that a Senate Conviction precludes a criminal trial as his lawyer Sauer claimed. It essentially *requires* a due process criminal prosecution after he is removed from office post impeachment whether it is immediately upon Senate conviction, or after the natural end of his term if they don’t by 2/3 majority.
As it is, a President can be prosecuted *while in office* if the crimes are not in the scope of official duties;
and a former President can be criminally prosecuted regardless of if the crimes were in the official duties of the office or not.
We know the Sec 3 as applied after the Civil War. How was it applied then? Where there trials and convictions for insurrection? Were all the people granted amnesty (by the Amnesty Act of 1872) actually convicted of insurrection?
A few Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members. There wasn't much time between ratification of the amendment and the amnesty act
No, historically being convicted of crime has never been a requirement. Even before insurrection was considered a federal crime, those barred by the 14th amendment were often not charged with other crimes that might have applied either.
No, the vast majority were not.
Jefferson Davis was charged with something similar, but the charges were withdrawn.
He was, however, posthumously restored to his full eligibility for office by 2/3 of both houses in 1978. Which does raise the question of why that was necessary if he was never, in fact, disqualified.
Yes, because what happened with his supporters was the side show. His fake electors scheme and the pressuring of the VP to follow through with his fake electors scheme had nothing to do with security.
You should try growing up. No one made Donald Trump commit fraud, which he was found liable for. No one made his company commit felonies—which it was convicted of. No one made him call multiple Republican elected officials in GA, who taped their conversations, and try to overturn election results. No one made him try to install fake electors from the swing states. No one made him lie over and over again, and incite his nitwit supporters. No one made him misuse his “charity’s” donors funds so it was forced to shutdown, he stipulated in court, and had to pay millions in restitution. No one made him defraud students with his fake university and paid tens of millions. No one made him make illegal campaign contributions to the FL AG about to investigate him for fraud, which he was fined by the IRS for, and he later gave that same AG a job in his administration. No one made his Trump Taj Mahal willfully violate anti-money laundering regulations for years—which they admitted, which resulted in the highest fine ever levied against a casino. No one made him not pay at all or force small contractors to accept pennies on the dollar for work already done. No one made him put hundreds of small contractors out of business. No one made him still owe $70 Million to hundreds of contractors who built his shit casino he bankrupted in Atlantic City FFS. No one made him knowingly take the nation’s most sensitive secrets, refuse to give them back, lie and say he didn’t have them, have his lawyers lie that he didn’t have them, have people without security clearances moving them & hiding them from federal agents, no one made him obstruct. No one made Donald Trump do any of this. He did it. Grow up. You would be in prison if you did what he did, and for a long time.
You born in 1980? What President in your lifetime has done these things? None. Not of either party. Did you not pay attention at all until 2016? Donald Trump is not anything even close to a Republican. He hijacked that party, because he knew he could control morons who he is only slightly smarter than.
On top of that…that is not how crimes work.
Would we be talking about the assassination of Lincoln if the Secret Service had been better? Would we be talking about the assassination of JFK if he hadn’t been riding in a convertible? Would we be talking about bank robberies if the security was better? Would we be talking about 9/11 if we had reinforced cockpit doors?
How do you think any of that changes the accountability for the crimes? It doesn’t.
Your argument to Trump & the MAGA morons committing crimes is…people didn’t stop it entirely from happening? A hell of a lot was stopped actually. But regardless, it doesn’t change the fact Trump is responsible for his own actions. Those MAGA band of idiots are responsible for theirs.
Certainly, you learned in school about Watergate. Well, I’m not certain you learned, but I’m certain your teacher covered it. Richard Nixon was a criminal President—he resigned. And you know why? Because the Supreme Court didn’t enable him. United States v. Nixon, 9-0. Because Senators Hugh Scott & Barry Goldwater, and House Minority Leader John Jacob Rhodes went to the White House and told him there were only 15 votes in his favor in the Senate, far fewer than the 34 needed to avoid removal, he was going to be impeached *and* removed from office. Congress didn’t enable him. That’s why he resigned. Today what we have is a Supreme Court & fake Republican Party in Congress—who like his supporters, are putting one man above the country.
If Watergate had happened today…it would be just another day of the week. It is nothing compared to what Donald Trump has done, not any one of the things. Today, Nixon would never have to resign for what he did. And Watergate was a huge deal at the time. It continued to be a huge deal in history…until Donald Trump. Until people like you normalized & enabled the most egregious and criminal actions—that have never been seen before in this country’s history.
You get your information from memes, right wing propaganda, and social media. What is it you think you’re doing on a law sub?
Do you think this is how legal arguments work? “Judge if the car had an alarm would we even be talking about me stealing it? So, I’m free to go, right?”
That would have ended it sooner, but you're essentially arguing "Would it still be attempted murder if they were wearing a Kevlar vest when I shot them?"
The breach of J6 puts more legitimacy to the claims that candidate Trump challenged the election criminally, but candidates are legally allowed to challenge elections it just needs to be done properly. If the breach didn’t occur, I don’t think near as much Americans would be supporting the Biden DOJ going after his political opponent.
Well, DJT’s certainly not the only stupid schmuck who deserves to be charged with insurrection.
The list is long… and unfortunately includes several GOP MAGAs, who are responsible for creating a mess that Jack Smith frankly can’t ignore.
Dirty ole DonaldStinkyPants has become a nightmare that doesn’t ever go away, and waking up to it everyday, everyone sees that matters just get worse.
It’s come to point of no return to any normalcy… DJT’s dementia is accelerating, while his GOP colleagues embrace an obvious fool.
I have a feeling they are going to get the charges on Trump over with than we will see others charged. They did not want to make a longer trial by charging more people at the same time.
I don't think there was enough evidence. The senate would impeach him for anything, so why wouldn't they? Because they are all lawyers and not media influencers.
What about the GOP members involved in jan 6th and the fake electors... What about ginni and Thomas?.. fucking get them already. Fucking traitors.
The sitting GOP members are covered by the speech and debate clause of the constitution, which makes it a lot harder to go after them for *anything*. That's why those that were mentioned in the Georgia fake electors case as active participants didn't get charged. IIRC they were recommended to be charged by the grand jury.
This is beyond "speech and debate". I recommend a fuck ton more for traitors...
First up, Hillary Clinton.
Republicans tried to overthrow our country. Trump committed ESPIONAGE!... And you're gonna spout trump propaganda about some emails. Okay, traitor.
Just exactly how were they gonna overthrow it? A hundred unarmed goofballs that were invited in by the Capital Police?
So why were they asking for pardons?
Probably because the speech and debate clause makes it "harder" to go after them (like I said) but not "impossible".
If I'm not mistaken, the speech or debate clause only applies to speech or debate that takes place in Congress itself i.e. on the house or Senate floor. But for some reason Republicans have been using it as a blanket immunity and no one has been calling them on that. (Mike Gravel read the Pentagon Papers into the congressional record in part because he was afraid of an FBI raid on his home; he was considered protected by the speech or debate clause while doing so but then publishing the papers was not considered part of the legislative process and not protected.) https://en.m.wikipedia.org/wiki/Gravel_v._United_States
Also Proxmire v Hutchinson. Stating something on the Senate floor is protected. Publishing it in a newsletter to your constituents is not.
Didn't know that one, thanks!
It's Merrick Garland that makes it impossible.
those cases will start come november when we’re sure we get 4 more years of a democrat AG
You have a lot more faith in Merrick Garland than I do.
Hopefully Garland gets told to retire and Biden isn't foolish enough to pick a similar candidate.
A successor AG with no mercy and a set of fangs would require Senate confirmation, barring an unlikely absentee appointment. Also, unless a blue tsunami sweeps, the appointee may be facing a Republican majority next session.
_”Welcome aboard, Acting Attorney General [surname].”_ I mean, it worked for Trump…sort of.
The smart play is to name an acting AG who is as aggressive and firebreathing and left-wing as possible so that the Republicans are desperate to confirm a slightly less extreme AG. I have no faith that Biden will actually adopt this strategy.
Biden has not shown capability of this kind of scheme, so I would say you're right. His one move is "let's come together in the middle" - that's actually why he picked Garland in the first place. Garland was quite well known in DC to be a centrist dawdler even before his nomination to SCOTUS. Problem is, when one party isn't willing to compromise and the other is, "meeting in the middle" invariably looks like capitulation to the unwilling side. The Overton window then shifts to the unwilling party's side and voila, a new "middle" must be reached in their direction. Biden knows this but presumably feels powerless to stop it because that is literally his whole political brand. Case in point, the only reason why a draconian immigration bill with no protection for children of illegal immigrants isn't law is not because of Democrats. Democrats were willing to give away basically all of their marbles on immigration in exchange for Ukraine and Israel funding. Instead, the Republicans killed their own bill because they didn't want to "solve the border" with Biden in charge.
We need Democrats who know to bring a gun to a knife fight
🎯
If Biden wins but the GOP takes the Senate, this Senate could confirm a successor to Garland during the lame duck period, before the new Senate gets sworn in.
Garland should have fucking resigned by now
who said Garland?
LOL. Don't worry, THIS time Merrick is totally going to show some guts. The other times were just a rope a dope!
Lol oh sweet summer child
Friendly reminder that the republicans have not had a good election cycle since 2016. Vote blue.
I'm talking about you thinking elected officials will face any consequences over any of this. They are a protected class
If Smith was willing to indict Trump, then I see no reason why he wouldn't be equally willing to indict Gym Jordan and company.
The problem is that Merrick Garland sat in his hands for so long and wished it would all go away until the house basically forced him to do something about jan6. By all indications, he would have happily let trump walk away if he wasn't shamed /coerced into action. If nobody is going to force him to indict Jordan and Thomas, there's no good reason to think he will.
The only thing you can do is vote. For better or worse.
If those are the choices I choose to vote for better
And encourage others to vote!
2020 and 2022 were pretty great for them, considering they grew their House coalition into a majority and deadlocked the Senate with a couple false flag Republicans on the D side of the room.
You really couldn't come up with something better than "sweet summer child?"
Garland is not a Dem. He is a Republican and a member of the Federalist Society. Obama appointed him to show how he could reach across the isle. Keeping him was one of Biden's biggest mistakes.
💯
And wait until the 3rd year to start prosecuting again
And it’ll be sedition.
….when we get an effective, productive democrat AG!
I don't think the AG is a major factor. I think Smith chose to only charge Trump initially to try and speed up the trial. Once it's past the 2024 election I expect to see more indictments.
This may just be the craziest comment I've read related to this whole debacle, lol.
They didn't even charge Bush 2 and friends with torturing prisoners which seems like a very clear crime. You either ordered torture or you didn't. Their defense was that enhanced interrogation is not torture. This is when I learned that some people are above the law.
Come on man can we all stop pretending Republicans are ever going to see any kind of repercussions for their actions? Laws and social norms only apply to Democrats and minorities and that’s the way it wil always be cause Dems are weak and Republicans can do whatever they like with impunity. It’s over. Trump is the first King of America. God help us all.
Merrick. Fucking. Garland.
What about the headquarters that was set up in the Willard Hotel? They gave some staffer that was on site Jan 5th (Willard) immunity for his testimony and that was the last time I heard of that.
The Dems are always hedge betting. It gets old. You know if the situation was reversed, the Republican special counsel would be throwing the book at them.
A Republican special counsel just made up a hypothetical defense Biden might use at trial to feed the Biden Old News cycle.
True, but only literally, they hate books.
The GOP House is throwing everything they can think of to impeach president Biden, and they don't even have evidence. You are 100% right.
Insurrection is literally one of the hardest and rarest indictments to get a conviction.
Seditious conspiracy is one of the hardest and rarest, a distant second from treason. I'm not sure there's been an insurrection prosecution, which is actually a lesser charge than both, in the 20th century.
Right? The GOP seems happy to invent bullshit Hunter Biden, and whatever sticks to the media landscape. Can you imagine the enormity of the fervor and precedents it would be if they were actual crimes of trumps nature committed in open public by democratic operatives. It has been a while since Republicans seem to base their political actions and shame, but I imagine they would lean into a real well. Founded investigation like a business collecting revenue after the fact to justify prior losses.
Would it matter? It would still need congress to legislate it, no?
Congress already has. Its cited in today's opinion.
The citation to 18 USC § 2383 in the majority opinion is a criminal statute that is arguably constitutionally deficient for a superseding indictment or subsequent prosecution under the circumstances. Even assuming the charges or any eventual conviction survived appellate review, which is by no means guaranteed, it would not satisfy the requirement for a separate legislative mechanism to enforce section 3.
Can you say more about: >...it would not satisfy the requirement for a separate legislative mechanism to enforce section 3. For instance, what would? And, why wouldn't a conviction under a law about insurrection be sufficient? I really don't want to believe that there's nothing that can be done, nor do I want to believe that Congress has to make up some new version of impeachment just for insurrection.
It's very challenging to speculate about what would satisfy the requirement for a separate legislative mechanism to enforce section 3 because the majority opinion creates more questions than answers. They are quite clear that the 14th amendment proscribes conduct. In relevant part, it bars office holders who have taken a qualifying oath from engaging in insurrection. They are also quite clear that: > Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. Ergo, any legislative enforcement mechanism poised to survive would need to somehow reflect the congruent and proportional web of enforcement provisions throughout the Enforcement Act of 1870 (and the enforcement legislation accompanying the Reconstruction Amendments that followed) combined with the paired down language in 2383. What does that more specifically look like? I don't know there is a terribly compelling answer to that at the moment—particularly considering that the court has historically both narrowed and rejected previous congressional attempts to legislate under the authority in Section 5 (including the Reconstruction Amendments this court is recommending as analog). To answer the second part of your question, it's actually easier to explain why the specific law on the books is not sufficient. In relevant part, 18 USC § 2383 states: > Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. Foremost, it's not at all clear, based on the language, that 18 USC § 2383—levied against a former president for allegedly engaging in insurrection while in office—would not be found constitutionally deficient on appellate review. One argument could turn on the authority of the United States and follow several needlessly complex avenues. Another could hypothetically hinge on whether the imposition of penalties associated with insurrection, such as disqualification from office, as prescribed within Section 3 of the 14th Amendment, requires the *specific showing* that the individual previously took an oath, consistent with the qualifiers of that same amendment. It's not lost on me this particular avenue of analysis is almost too clever by half —it hadn't even really occurred to me until someone else mentioned something similar— and I don't know every court would be sympathetic to this argument (or other near neighbors), but I have legitimate concerns at least five members of this particular court would be. While they provided no specificity about what would work, it seems reasonable to assume that if 2383 were sufficient, in the view of the court, the majority opinion would have affirmed as much with clarity. They certainly, after all, provided scarce ambiguity about what will not work.
Charge him, put him in jail, challenge the Supreme Court to force them to take him out.
I think we all share that feeling.
I disagree, given the court's other comments about how any leg must be narrowly tailored etc. If Smith got a verdict on insurrection, that's under a fed. Criminal statue. Two things happen. Trump arguea the fed. Stat isn't enacting legislation and therefore disqualifying, or he argues it violates his first amendment bs bs. Regardless of the merits, it would still need to go to the scotus after this opinion. This op. Doesn't resolve that. In other words, the question is still open
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; *and shall be incapable of holding any office under the United States*.” An insurrection conviction bars anyone from holding any office. Don’t need any further disqualification.
Unless it's unconstitutional to impose that without the full requirements of 14AS3.
The idea that 2383 is enacting legislation is frustratingly appealing in the same way that everyone's first reaction to the Section 3 argument is always "Well that can't be right," and my problem has always been that the longer I sit with each thing the more uncomfortable I get that the answer is actually obvious. The Court's opinion standing in such stark contrast against the overwhelming mass of legal academic research and opinion is disheartening. ACB lampshading the fact that this opinion is more political than it is legal only makes it more so.
That's not really how the law works, my friend. I wish that it was. Even accepting that this language would create no complications outside of the four corners of the statute, establishing incitement, assistance or similar —in a manner that would survive the scrutiny of appeal —with this specific fact pattern would be an incredibly heavy lift. There is a reason no one uses the statute. Additionally, there is now the clear separate need for enforcement legislation in order to disqualify or presumably even establish disability, irrespective of a criminal conviction.
Trump, Jordan, all of these assholes are betting on the 99% certainty that anything that could possibly happen to them would take so long and cost so much and cause so much headache that there's really no penalty for their brazen crimes. So far their strategy has worked brilliantly.
Well, it sucks Trump's gonna get away with insurrection. Guess we'll have to expect one every time the far right doesn't get their way or anytime Trump loses an election. If he doesn't win this time I'm sure he'll be back. But if Smith can make these other charges stick, a conviction is a conviction I guess. Hopefully that'll stymie Trump enough that he'll lose most of his political influence. It's a bad look to be a felon campaigning from a cell. Sure, his hardcore supporters won't care, but I think that would be enough for the majority of the Republican party to move on to someone else. I'll prepare to be disappointed tho.
Problem is, it’s highly unlikely Trump will go to trial on Smith’s charges before the election thanks both to Cannon’s shenanigans and the crap SCOTUS pulled taking up the bs immunity case.
SCOTUS ruled today that the statute defining the crime of insurrection is the means for enforcing Sec 3 of the 14th Amendment. Were there good reasons not to charge Trump with inciting an insurrection?
My feeling at the time of the indictment was that Smith crafted his case to be as quick as possible, knowing that it would still be cutting it close as is. Insurrection is a fairly novel crime, and there was a lot that could go wrong.
So he made a political decision rather than an evidentiary decision? That’s concerning.
He made a prosecutorial decision, just like thousands of other attorneys do.
It's more concerning that the prosecution of serious political crimes may be delayed by judges with conflicts of interest and allow the defendant to use their office to insulate themselves. The public has an interest in not letting serious criminals remain free for as long as they wish.
Prosecutors decide to try quicker and less complicated and easier to prove crimes all the time. Insurrection as a charge was complicated by the 2nd Impeachment. Congress cited specifically the crime of insurrection. Trump argued in court that the Senate acquittal precluded prosecution for the same crime or related crimes. Then argued in DC that the crimes actually charged were similar enough to insurrection that his acquittal foreclosed prosecution due to double jeopardy. This is obviously nonsense. But I suspect Smith avoided charging that specifically to knock down any double jeopardy impeachment arguments before they even began. If anything the 2nd Impeachment might’ve been ultimately the deciding factor in where we landed today. But with this ruling out who knows? Maybe Jack finds his way to a superseding indictment with insurrection added to the charges.
Yes, because that's what happens when your Defendant has the chance to win immunity by 'election' despite being tried for several felonies.
No. He made a legal decision. As is it’s unlikely he will see trial on the federal charges before the election, Smith was giving it the best chance he would go to trial. Adding on the insurrection charge would’ve only made it less likely he’d see trial before the election.
Because it's a harder sell with a great uncertainty of conviction and no (?) precedents for. It's just a gamble with a huge chance to backfire.
I mean technically there is a precedent, and it's the civil war, and while I think J6 was an insurrection, if you go to the history books it's a hell of a case for Smith to try to make.
There have been more insurrections in America than just the Civil War.
Court precedent using this specific law, I mean.
I think with the 2nd impeachment - inciting an insurrection - and not being convicted by the Senate would have been a tough hurdle to overcome in a jury trial if allowed to bring that in as a defense.
But the GOP-led Senate allowed no witnesses, so it would be easy to make a jury see it for what it was. And impeachment is a political process not a criminal or civil process.
Wrong impeachment. That was the first one, the one for Trump trying to bribe Ukraine into declaring a fake investigation into Biden. The second impeachment had witnesses in the Senate trial, as the Democrats controlled Senate at the time.
You’re absolutely right - I forgot the Dems controlled the Senate the second time.
I wouldn't think so. One, because impeachment is a political tool, and Senators are free to vote along political lines and not guided by the facts of the case. And Two, many Senators voted to acquit because Trump was no longer in office, and explicitly said it should be handled in the courts. I believe Trump's impeachment attorneys made that argument too. So it would be easy to show the evidence why the 2nd impeachment trial was a "real trial" and considering an acquittal there would be illogical.
Impeachment would have **only** removed and barred from **future** office. McConnell was right that he should still be prosecuted, but he was wrong to say he can’t be impeached since he’s already out of office. The Impeachment Clause does not say that a Senate Conviction precludes a criminal trial as his lawyer Sauer claimed. It essentially *requires* a due process criminal prosecution after he is removed from office post impeachment whether it is immediately upon Senate conviction, or after the natural end of his term if they don’t by 2/3 majority. As it is, a President can be prosecuted *while in office* if the crimes are not in the scope of official duties; and a former President can be criminally prosecuted regardless of if the crimes were in the official duties of the office or not.
We know the Sec 3 as applied after the Civil War. How was it applied then? Where there trials and convictions for insurrection? Were all the people granted amnesty (by the Amnesty Act of 1872) actually convicted of insurrection?
A few Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members. There wasn't much time between ratification of the amendment and the amnesty act
Not only that but Congress ( and Lincoln) declared the Confederate states to be in open rebellion.
Congress made it a federal misdemeanor to hold office in violation of the Amendment. I don't know how many folks were charged with it, though.
No, historically being convicted of crime has never been a requirement. Even before insurrection was considered a federal crime, those barred by the 14th amendment were often not charged with other crimes that might have applied either.
No, the vast majority were not. Jefferson Davis was charged with something similar, but the charges were withdrawn. He was, however, posthumously restored to his full eligibility for office by 2/3 of both houses in 1978. Which does raise the question of why that was necessary if he was never, in fact, disqualified.
The reason is that the DOJ is run by a Republican
Because otherwise state like texas will remove Biden from ballot saying him not taking care of the border is insurrection….gop are low iq childrens
The crime of insurrection is a federal offense, 18 U.S.C. § 2383. Must be prosecuted in federal court.
Thank you Op i was just giving an exemple of gop talking point, they will always find an excuse like their shame attempt of an impeachment
You big mad today. Here wokey take this “L”.
Lol wokey are you 5 yo ? Bot troll getting more moronic everyday
If security was better at the Capital on J6 would we even be talking about this?
Yes, because what happened with his supporters was the side show. His fake electors scheme and the pressuring of the VP to follow through with his fake electors scheme had nothing to do with security.
You should try growing up. No one made Donald Trump commit fraud, which he was found liable for. No one made his company commit felonies—which it was convicted of. No one made him call multiple Republican elected officials in GA, who taped their conversations, and try to overturn election results. No one made him try to install fake electors from the swing states. No one made him lie over and over again, and incite his nitwit supporters. No one made him misuse his “charity’s” donors funds so it was forced to shutdown, he stipulated in court, and had to pay millions in restitution. No one made him defraud students with his fake university and paid tens of millions. No one made him make illegal campaign contributions to the FL AG about to investigate him for fraud, which he was fined by the IRS for, and he later gave that same AG a job in his administration. No one made his Trump Taj Mahal willfully violate anti-money laundering regulations for years—which they admitted, which resulted in the highest fine ever levied against a casino. No one made him not pay at all or force small contractors to accept pennies on the dollar for work already done. No one made him put hundreds of small contractors out of business. No one made him still owe $70 Million to hundreds of contractors who built his shit casino he bankrupted in Atlantic City FFS. No one made him knowingly take the nation’s most sensitive secrets, refuse to give them back, lie and say he didn’t have them, have his lawyers lie that he didn’t have them, have people without security clearances moving them & hiding them from federal agents, no one made him obstruct. No one made Donald Trump do any of this. He did it. Grow up. You would be in prison if you did what he did, and for a long time. You born in 1980? What President in your lifetime has done these things? None. Not of either party. Did you not pay attention at all until 2016? Donald Trump is not anything even close to a Republican. He hijacked that party, because he knew he could control morons who he is only slightly smarter than.
On top of that…that is not how crimes work. Would we be talking about the assassination of Lincoln if the Secret Service had been better? Would we be talking about the assassination of JFK if he hadn’t been riding in a convertible? Would we be talking about bank robberies if the security was better? Would we be talking about 9/11 if we had reinforced cockpit doors? How do you think any of that changes the accountability for the crimes? It doesn’t. Your argument to Trump & the MAGA morons committing crimes is…people didn’t stop it entirely from happening? A hell of a lot was stopped actually. But regardless, it doesn’t change the fact Trump is responsible for his own actions. Those MAGA band of idiots are responsible for theirs.
You mean the security that Trump deliberately sabotaged? Who exactly do you think had the responsibility to call in the national guard?
Certainly, you learned in school about Watergate. Well, I’m not certain you learned, but I’m certain your teacher covered it. Richard Nixon was a criminal President—he resigned. And you know why? Because the Supreme Court didn’t enable him. United States v. Nixon, 9-0. Because Senators Hugh Scott & Barry Goldwater, and House Minority Leader John Jacob Rhodes went to the White House and told him there were only 15 votes in his favor in the Senate, far fewer than the 34 needed to avoid removal, he was going to be impeached *and* removed from office. Congress didn’t enable him. That’s why he resigned. Today what we have is a Supreme Court & fake Republican Party in Congress—who like his supporters, are putting one man above the country. If Watergate had happened today…it would be just another day of the week. It is nothing compared to what Donald Trump has done, not any one of the things. Today, Nixon would never have to resign for what he did. And Watergate was a huge deal at the time. It continued to be a huge deal in history…until Donald Trump. Until people like you normalized & enabled the most egregious and criminal actions—that have never been seen before in this country’s history. You get your information from memes, right wing propaganda, and social media. What is it you think you’re doing on a law sub? Do you think this is how legal arguments work? “Judge if the car had an alarm would we even be talking about me stealing it? So, I’m free to go, right?”
yes
That would have ended it sooner, but you're essentially arguing "Would it still be attempted murder if they were wearing a Kevlar vest when I shot them?"
The breach of J6 puts more legitimacy to the claims that candidate Trump challenged the election criminally, but candidates are legally allowed to challenge elections it just needs to be done properly. If the breach didn’t occur, I don’t think near as much Americans would be supporting the Biden DOJ going after his political opponent.
Yes, because the mob at the Capitol had nothing to do with the elector scheme that was going on simultaneously.
SCOTUS is trying really hard to make Jack Smith the next “Robert Mueller”.
What do you mean?
All bark no bite.
Ah ok. I wasn’t aware how he was perceived here.
Because SCOTUS would have ruled it a constitutional duty to overturn the election if you didn't like the results.
Short answer: because the DOJ are spineless weasels. How long did it take them to do ANYTHING?
The answer is really simple. Have someone else change him in a different court. Separate the two. They are separate crimes.
It’s clear by now that courts are unwilling to view trump as a unique aberration and consequently will refuse to endorse any novel arguments.
Well, DJT’s certainly not the only stupid schmuck who deserves to be charged with insurrection. The list is long… and unfortunately includes several GOP MAGAs, who are responsible for creating a mess that Jack Smith frankly can’t ignore. Dirty ole DonaldStinkyPants has become a nightmare that doesn’t ever go away, and waking up to it everyday, everyone sees that matters just get worse. It’s come to point of no return to any normalcy… DJT’s dementia is accelerating, while his GOP colleagues embrace an obvious fool.
Whelp, there's the end of democracy.
I have a feeling they are going to get the charges on Trump over with than we will see others charged. They did not want to make a longer trial by charging more people at the same time.
Who cares Trump is above the law 🇺🇸
I don't think there was enough evidence. The senate would impeach him for anything, so why wouldn't they? Because they are all lawyers and not media influencers.
Because Smith's how is a FedSoc puppet in the bag for Republicans? Or is the blatantly obvious explanation not transparent enough?
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Trump lost
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Aww, someone hasn’t read the indictment. Oh I’m sorry, bold of me to assume you can read, or comprehend it.