A Deeply Fractured US

[brihard]

You do. Others disagree. My view is that a process formality was interrupted. No serious (coordinated, prolonged) effort was made that would have resulted in forcing Congress, at gunpoint, to go through a charade of declaring Trump the winner. I get that people are upset about the loss of face, but that doesn't merit vindictive responses. Provisions that talk in terms of armed rebellion and civil war ought be reserved for the genuine articles, not massaged for political revenge.

"Inciting a mob to storm the US Capitol" sounds like Trump was on the steps handing out torches and calling for violence. The reality of what transpired simply doesn't uphold that rhetoric.

It doesn’t appear you read the portions of the lower court decision that articulate how they arrived at the finding - upheld unanimously so far- that he engaged insurrection. They explicitly reject that such a high threshold as guns on the steps of the Capitol need be met for there to be insurrection, or that one need be waving a flag at the front of it to be engaged therein. The lower court’s finding of fact on this point was very detailed, and grounded in law as it was interpreted at the time the Fourteenth was written.

 

[Brad Sallows]

I'd argue he did -- he called for a rally, said it was going to "wild, and Democrats where not going to like it"

That's not a call for insurrection. A rally, even a protest that escalates into a riot, is not insurrection. All the usual social/political rhetoric (eg. "fight for this or that") is permissible. It would be risible to claim that any one phrase of customary and common rhetoric has any specific dark meaning.

He then didn't lift a finger until hours after the Capital had been breached, and several people where dead.

Neither is that. Failure to call for peace and calm can be characterized as disappointing, but not advocacy.

 

[Brad Sallows]

It doesn’t appear you read the portions of the lower court decision that articulate how they arrived at the finding - upheld unanimously so far- that he engaged insurrection. They explicitly reject that such a high threshold as guns on the steps of the Capitol need be met for there to be insurrection, or that one need be waving a flag at the front of it to be engaged therein. The lower court’s finding of fact on this point was very detailed, and grounded in law as it was interpreted at the time the Fourteenth was written.

I'm sure it's an impressive document; I'm equally sure it's devoid of common sense and reflects motivated reasoning. I'm opposed to defining down the threshold for "insurrection", but I'm confident it will come back to bite its supporters in the ass. The lower standards for misbehaviour go, the more people will fall afoul of them.

 

[RangerRay]

All of the arguments against holding the former POTUS accountable for wrongdoing I’m hearing sound to me like it could be summed up as:

“Shhh…we mustn’t anger the mob”

and

“It doesn’t matter what any court says, no matter the qualifications of the jurists who know the law better than I, they’re wrong, corrupt, biased and are members of the Illuminati.”

 

[brihard]

I'm sure it's an impressive document; I'm equally sure it's devoid of common sense and reflects motivated reasoning. I'm opposed to defining down the threshold for "insurrection", but I'm confident it will come back to bite its supporters in the ass. The lower standards for misbehaviour go, the more people will fall afoul of them.

Have you read it?

 

[dapaterson]

Have you read it?

Reading is for losers.

 

[KevinB]

I'm sure it's an impressive document; I'm equally sure it's devoid of common sense and reflects motivated reasoning. I'm opposed to defining down the threshold for "insurrection", but I'm confident it will come back to bite its supporters in the ass. The lower standards for misbehaviour go, the more people will fall afoul of them.

Brad, I'm really having a tough time following your logic.

I'll parse excerpts from the Court Document in Question:

The court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three. Anderson v. Griswold, No. 23CV32577, ¶¶ 241, 298 (Dist. Ct., City & Cnty. of Denver, Nov. 17, 2023)

In his speech, which began around noon, President Trump persisted in rejecting the election results, telling his supporters that “[w]e won in a landslide” and “we will never concede.” He urged his supporters to “confront this egregious assault on our democracy”; “walk down to the Capitol . . . [and] show strength”; and that if they did not “fight like hell, [they would] not . . . have a country anymore.” Before his speech ended, portions of the crowd began moving toward the Capitol. Below, we discuss additional facts regarding the events of January 6, as relevant to the legal issues before us.
¶12 Just before 4 a.m. the next morning, January 7, 2021, Vice President Michael R. Pence certified the electoral votes, officially confirming President Biden as President-elect of the United States.

Were we to adopt President Trump’s view, Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency, and citizenship requirements of the Presidential Qualifications Clause of Article II. See U.S. Const. art. II, § 1, cl. 5 (setting forth the qualifications to be “eligible to the Office of President” (emphasis added)). It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado.

In other words, CRSCC is well within its rights to choose with whom it affiliates and to decide which candidates it recognizes as bona fide. “It does not follow, though, that a party is absolutely entitled to have its nominee appear on the ballot as that party’s candidate.” Id. at 359 (noting that a “particular candidate might be ineligible for office,” for example).


I could go on, but honestly it appears DJT and the Colorado Republican State Central Committee has hired the dumbest of the dumb law school graduates. The arguments raised all had conflicting precedents - and I struggled to find any way they thought this could be a win.

 

[Brad Sallows]

All of the arguments against holding the former POTUS accountable for wrongdoing I’m hearing sound to me like it could be summed up as:

“Shhh…we mustn’t anger the mob”

and

“It doesn’t matter what any court says, no matter the qualifications of the jurists who know the law better than I, they’re wrong, corrupt, biased and are members of the Illuminati.”

"Rule of law" requires that the law be applied to everyone equally. No-one is above it; no-one is below it. Also required is that it be perceived to be applied equally. If the people in charge are going to appease one mob by treating it and its leaders lightly, they have to do the same for other mobs. Or, if the people in charge are going to pursue one mob and its leaders severely, they have to do the same for other mobs. It's impractical and unreasonable to seek to never anger the mob; it's beyond idiocy to provoke it at every opportunity. Maybe pick two or three serious conventional legal arguments and pursue them, instead of picking every possible battle?

FAFO works multi-directionally. Stupid to risk paying the costs of future civil unrest and violence unnecessarily. Stupid to keep stirring the pot so that Republicans are denied a realistic path to nominating an alternative to Trump so that Americans have at least two reasonable choices in the general election. Really stupid to provoke enough independents into voting for Trump that he might win. Stupid to whistle past the graveyard (polls) in the hope that something decisive (eg. a conviction) will turn up before it's too late. Stupid to throw support behind the people who are doing those things. Stupid to believe that whatever can be fit to the law excuses the consequences.

A naive person might believe that people who want to be selected for an appointed judgeship are apolitical and don't work connections. What "the court said" was decided by the least possible split. Obviously the legal weight of neither side of the argument was overwhelming. But they went for the incendiary option, anyways.

 

[Brad Sallows]

In his speech, which began around noon, President Trump persisted in rejecting the election results, telling his supporters that “[w]e won in a landslide” and “we will never concede.” He urged his supporters to “confront this egregious assault on our democracy”; “walk down to the Capitol . . . [and] show strength”; and that if they did not “fight like hell, [they would] not . . . have a country anymore.” Before his speech ended, portions of the crowd began moving toward the Capitol. Below, we discuss additional facts regarding the events of January 6, as relevant to the legal issues before us.
¶12 Just before 4 a.m. the next morning, January 7, 2021, Vice President Michael R. Pence certified the electoral votes, officially confirming President Biden as President-elect of the United States.
I could go on, but honestly it appears DJT and the Colorado Republican State Central Committee has hired the dumbest of the dumb law school graduates. The arguments raised all had conflicting precedents - and I struggled to find any way they thought this could be a win.

"Walk down to the Capitol and show strength and solidarity and blah blah blah and fight like hell." That's the usual rhetoric of protestors everywhere, not incitement to insurrection. If that's not what people arguing the case for insurrection are depending on to make the case, they should be leaving that language, and everything like it, out. The fact they include it betrays fundamental weakness in their own belief in the strength of their argument. If there are stronger arguments, those are what I should be seeing. What are the stronger arguments? Absence of use suggests absence of existence.

 

[brihard]

"Walk down to the Capitol and show strength and solidarity and blah blah blah and fight like hell." That's the usual rhetoric of protestors everywhere, not incitement to insurrection. If that's not what people arguing the case for insurrection are depending on to make the case, they should be leaving that language, and everything like it, out. The fact they include it betrays fundamental weakness in their own belief in the strength of their argument. If there are stronger arguments, those are what I should be seeing. What are the stronger arguments? Absence of use suggests absence of existence.

Ok but again, did you read it? ‘Cause there were a lot more pages of material than just that. If you’re gonna turn in your book report, it’s fair to ask if you’ve read the book.

"Rule of law" requires that the law be applied to everyone equally. No-one is above it; no-one is below it. Also required is that it be perceived to be applied equally. If the people in charge are going to appease one mob by treating it and its leaders lightly, they have to do the same for other mobs. Or, if the people in charge are going to pursue one mob and its leaders severely, they have to do the same for other mobs.

It may be that, in a hypothetical future where a Democrat president is held by a trial level court to have engaged in insurrection and then states their intent to run for president, that candidate may also have to be excluded from the Colorado state primary in the interest of rule and law and fairness. A heavy price to pay, indeed. The Republic may wither.

 

[Lumber]

"Walk down to the Capitol and show strength and solidarity and blah blah blah and fight like hell." That's the usual rhetoric of protestors everywhere...

That's the usual rhetoric of usual protestors. This was POTUS on inauguration day having spent the last two months pushing a blatant lie about the outcome of the election.

 

[Brad Sallows]

Ok but again, did you read it? ‘Cause there were a lot more pages of material than just that. If you’re gonna turn in your book report, it’s fair to ask if you’ve read the book.

Yes, I've read it (only skimmed the preliminary parts where it was necessary to establish the jurisdiction of the state in the matter, and so on, which is not particularly controversial).

The weak points are what I knew before reading it: holding that president is an "officer of the United States" (which is not resolved by whatever people want to believe was colloquial in 1868); holding that interrupting the vote count was an insurrection (which at least will be interesting in years to come because there are so many ways in which people have become accustomed to interrupting the operation and authority of government); and holding that Trump engaged in insurrection because his immoderate language made people angrier and he failed to state particular things that people demand he should have said.

It may be that, in a hypothetical future where a Democrat president is held by a trial level court to have engaged in insurrection and then states their intent to run for president, that candidate may also have to be excluded from the Colorado state primary in the interest of rule and law and fairness. A heavy price to pay, indeed. The Republic may wither.

The hypothetical future is one in which protestors do something which degrades the ability of government to exercise its authority and conduct its business, and exciting new case law is deployed against them. Likely, and now potentially much riskier for all involved.

 

[Lumber]

...he failed to state particular things that people demand he should have said would expect the President and defender of the constitution to say.

FTFY.

 

[IKnowNothing]

"Rule of law" requires that the law be applied to everyone equally. No-one is above it; no-one is below it. Also required is that it be perceived to be applied equally.

Perceived by who?

At risk of mixing my message boards- fans and players of the dirty team always think that equal application of the rules should result in equal penalization, lose their minds at "unfair reffing" when they end up with more penalties, and can't comprehend the difference in what they've been doing and what the cleaner team has been doing.

Appeasing the perception of the unreasonable is not a guiding principle of the rule of law, or fairness.

 

[QV]

There are a lot of democrats saying how stupid this all is. Allen Dershowitz, a democrat who didn't and won't vote for Trump, had blistering comments on the Colorado decision.

 

[Fishbone Jones]

It's all moot. The SCOTUS is going to put it in the shitter, no matter what Colorado says.

 

[KevinB]

It's all moot. The SCOTUS is going to put it in the shitter, no matter what Colorado says.

There needs to be an error of law for them to do so. Colorado’s Election Laws being different from other states don’t necessarily make it a precedent for other states.

I know a few hard right constitutional lawyers who don’t see how the case could have gone any other way. They don’t necessarily like it, but can’t find errors in the decision.

Party of the key issues is that individual states are responsible for their election laws. That’s a very important aspect, and it’s a interesting aspect that separates how Canadian elections and other Commonwealth nations structure their electoral systems

 

[dimsum]

arty of the key issues is that individual states are responsible for their election laws. That’s a very important aspect, and it’s a interesting aspect that separates how Canadian elections and other Commonwealth nations structure their electoral systems

Yes, and that confuses me that in a US federal election, the rules aren’t standardized in all voting states.

 

[Brad Sallows]

FTFY.

Not relevant. Failure to say what some people demand, or merely want to hear, is not insurrection.

 

[brihard]

Yes, and that confuses me that in a US federal election, the rules aren’t standardized in all voting states.

Remember that strictly speaking voters aren’t directly electing the president. They’re electing their state’s slate of party-pledged electors for the electoral college. It’s a matter of state law how that’s actually done.