Trump's Punishment For Insurrection and Sedition

Sedition 

by Edmund Vance Cooke (1917)

You cannot salt the eagle's tail
Nor limit thought's dominion
You cannot put ideas in jail
You can't deport opinion

If any cause be dross and lies
Then drag it to the light
Out in the sunshine evil dies
But fattens on the night

You cannot make a truth untrue
By dint of legal fiction
You cannot imprison human view
You can't convict conviction

For though by thumbscrew and by rack
By exile and by prison
Truth has been crushed and palled and black
The truth has always risen

You cannot quell a vicious thought
Except that thought be free
Gag it, and you'll find it taught
On every land and sea

Truth asks no favor for her blade
Upon the field with error
Nor are her converts ever made
By threat of force and terror

You cannot salt the eagle's tail
Nor limit thought's dominion
You cannot put ideas in jail
You can't deport opinion

Even after Trump refused to accept the results of the 2020 election and urged his followers – including many groups of violent extremists – to commit insurrection. And even though he declined to call off the mob once they stormed the Capitol and put his own vice president in danger, Republicans in the Senate lack the integrity and the fortitude to impeach the ex-president. Their politics prevent them from seeking justice.

The January 6 anarchy, as deadly as it was, could have been far worse. Vice President Mike Pence and members of Congress could have been injured or killed. Congress could have been prevented from carrying out its responsibility to certify the Electoral College results.

Is Donald Trump going to go scot-free for meddling in the election and leading an insurrection?

How can Trump's actions fall short of being “high crimes and misdemeanors”? Letting Trump go unpunished might encourage future presidents to emulate his criminal behavior. Behind Trump’s fruitless attempts to overturn a free and fair election and erase the votes of millions is the big lie that led to the uprising – he chose to reject votes by Black and brown people and equal access to the ballot.

Law professors Bruce Ackerman of Yale and Gerard Magliocca of Indiana University noted in The Washington Post, the 14th Amendment to the Constitution has a provision that fits current needs.

It says that any “officer of the United States” who has “engaged in insurrection or rebellion” against the Constitution “or given aid or comfort to the enemies thereof” shall not be allowed to hold “any office, civil or military, under the United States.” Ratified after the Civil War, this section was meant to prevent former Confederate leaders from gaining positions of power in the government they waged war against.

Steve Chapman, member of the Chicago Tribune editorial board since 1981 says …

“But it (the provision) would apply equally to anyone else who actively encourages a violent uprising, as Trump did. Senate Republican Leader Mitch McConnell affirmed the obvious when he said: 'The mob was fed lies. They were provoked by the president and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government, which they did not like.' That is sedition, plain and simple.”

(Steve Chapman. “Column: Impeachment will fail, but here’s another way to punish Trump.” Chicago Tribune. January 29, 2021.)

The provision in Section 3 of the 14th Amendment bars a person from holding any office “under the United States” (1) if the person has sworn an oath of allegiance to the Constitution and (2) then “engaged in insurrection or rebellion” against the government or “given aid to the enemies” of the U.S.

The first part of the provision certainly applies: Trump took an oath to uphold the Constitution when he became president.

The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021. Because this is a constitutional question, the courts will have to adjudicate it.

Republicans like Mitt Romney and Mitch McConnell called it an insurrection right off the bat. The Constitution doesn’t define insurrection. Neither does the Insurrection Act, the federal statute that you might expect to include a definition. What is a legal definition as it applies?

Noah Feldman, Bloomberg columnist, professor of law at Harvard University and formerly a clerk to U.S. Supreme Court Justice David Souter, wrote …

“Most dictionary definitions of insurrection call it a violent uprising against the government. Not all of the Jan. 6 participants were violent, of course. But some were.

“As for the uprising part, again, not all the rioters wanted to bring down the government. But at least some clearly intended to interfere temporarily with the congressional process for declaring Joe Biden to be president. At least some wanted to use force to compel Congress to declare Trump, not Biden, the president-elect. That act would have subverted the democratic process. In some sense, at least, it would have amounted to overturning the U.S. government by force.

“The upshot is that, at least with regard to the mob itself, it seems possible that a court could conclude that an insurrection was happening on Jan. 6. It isn’t a slam-dunk case; the authors of the 14th Amendment almost certainly had in mind an insurrection much more like the Civil War. But a court would certainly have enough reason to find that Jan. 6 involved an insurrection for it to be worthwhile for us to go on to the next question.”

“That question is, assuming the march on the Capitol was an insurrection: Did Trump himself engage in insurrection when he spoke to the crowd and encouraged or incited the march? If a court says yes, Trump isn’t eligible to be president again.”

(Noah Feldman. “Trump’s 2024 Hopes Just Crashed Into the 14th Amendment.” Bloomberg. https://www.bloomberg.com/opinion/articles/2021-01-11/trump-2024-president-may-be-ineligible-after-u-s-capitol-riot. January 11, 2021.)

The main value of convicting Trump is that it would allow the Senate to take a separate vote to forbid him from running for president again. But under the 14th Amendment, Congress could impose a ban even without a conviction. As Ackerman and Magliocca explain, “Congress would simply need to declare that Trump engaged in an act of ‘insurrection or rebellion’ by encouraging the attack on the Capitol.”

If this were a criminal prosecution, the First Amendment would apply, and the relevant test would be the one drawn from the landmark 1969 case Brandenburg v. Ohio. The case says that the government can’t punish speech advocating force unless the speech is “directed to inciting or producing imminent lawless action and is likely to produce such action.”

However, a court could still conclude that Trump’s words counted as insurrection for the purposes of the 14th Amendment even if they would not have qualified as incitement under the Brandenburg standard. That means Trump could be barred from holding office for an act that would not get him thrown in jail.

This declaration would take only a simple majority of both houses. And, of course, cowardly Republicans could save face and shift the blame. There would be no need to split the party. And, Trump would join the likes of Jefferson Davis and other leaders of Lost Causes rebellion.

Simply being the president should not cloak Trump with immunity from prosecution. Quick attention must be taken to discourage the insurrectionists from committing more violence. His insurrection has been brewing throughout his presidency. Trump now must pay the price for the great damage he has done to America.

How ironic that Trump, the self-professed law-and-order president, would give voice to his supporters who violently attempted to prevent Congress from fulfilling its constitutional duty to certify the Electoral College votes. He is a liar and a divider who cares little for truth and justice.

Statutory and constitutional laws have been broken, law enforcement officers have been injured and killed, the Capitol building has been damaged, and possessions have been taken out of congressional offices. Add to all of this the tremendous stain the anarchists inflicted on democracy – defiling sacred institutions with their vile actions and symbols of hate.

Benjamin Wallace-Wells, writer for The New Yorker and past fellow at the New America Foundation, explains …

“A similarly nostalgic culture will follow Trump after he leaves office. The maga movement shares with the Lost Cause a rejection of historical fact, a consuming cult of personality, and a valorization of violence.”

(Benjamin Wallace-Wells. “Trump Must Be Held Accountable.” The New Yorker. January 8, 2021.)

The world awaits the judicial judgment of Donald Trump. His false narrative of a stolen election resulted in mob violence by his loyal cult following. He orchestrated the protest and verbally directed the mob. Trump was willing to have these criminals seize the government by force. He is guilty of sedition through gross and malignant abuse of power. If the United States is to continue to be seen by the rest of the world as the standard bearer of freedom, liberty, and justice, Donald Trump must be held accountable for his crimes.   

You cannot salt the eagle's tail. 

"No man is above the law and no man is below it: nor do we ask any man's permission when we ask him to obey it.”

– Theodore Roosevelt