Due Process? Maine Gives Trump No Process
Donald Trump Is Being Convicted Of A Crime Without Even The Pretense Of A Trial
Insurrection is a federal crime. Specifically, it is a violation of Title 18 of the US Code, Section 23831.
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.
As Deep Blue states are now lining up to use the cry of “insurrection!” as a pretext for banning Donald Trump from the 2024 Presidential ballot, we must remember this single salient fact: insurrection is a federal crime.
That fact is now colliding with an extrajudicial flight of fancy in Maine, where Secretary of State Shenna Bellows, without the benefit of even a trial, declared Donald Trump guilty of the crime of insurrection, and thus not qualified to appear on the 2024 Presidential ballot.
Maine Secretary of State Shenna Bellows, a Democrat, said she had concluded that Trump “over the course of several months and culminating on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.”
That Donald Trump has never been convicted of insurrection does not appear to have occurred to Ms. Bellows.
That small legal wrinkle, of course, is one of the primary reasons it is not possible for Donald Trump to be an “insurrectionist”, or to be extrajudicially declared guilty of insurrection. The other reasons, which I have already explored at length, include the inconvenient fact that there has been no “insurrection”, nor is there any good evidence that Donald Trump even attempted to incite an insurrection.
With no certain act of insurrection, and no certain act of incitement, it is logically and legally impossible for Donald Trump to be considered an “insurrectionist”. The media and the Democrats may wish to hold him responsible for the J6 riot, but that is a political posturing only. If we are making an impartial and therefore just application of the letter of the law, Donald Trump cannot be considered an insurrectionist.
Ms. Bellows has zero regard for fact, however, as demonstrated by her lengthy 34-page decision declaring Donald Trump guilty of insurrection, as she makes a demonstrably false statement of fact in this particular:
In truth, the record demonstrates nothing of the sort, and even the usually suspect “fact check” sites such as FactCheck.org take issue with the GAO tally of “seven deaths”, as well as Alexandria Ocasio-Cortez’ claim of “almost 10 dead”.
There is reasoned debate about the number who died as a result of the Capitol riot. Ocasio-Cortez is including law enforcement officials who responded to the Capitol that day and committed suicide in the days and months afterward. None of them have been officially designated as “line of duty” deaths, though there is some congressional support for it.
Ocasio-Cortez’s tally also includes two rally participants who died of heart failure — including one who died before other protesters had breached the Capitol. It includes a rallygoer who was initially believed to have been trampled to death in the mayhem that day, but was later determined to have died of an accidental overdose.
Journalist Glenn Greenwald also took issue on X/Twitter with the exaggerated claims of deaths on January 6, rebutting AOC in particular.
But most damningly against Ms. Bellows claim of fact that Donald Trump is guilty of insurrection is that no one who participated in the J6 riot was ever charged with insurrection. Some were charged, and pled guilty to “seditious conspiracy”2, which is a companion crime to insurrection—but it is not insurrection.
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
However, Donald Trump has not been charged with either offense. Even Jack Smith declined to so charge Donald Trump. While Trump was charged with “incitement of insurrection” at his second impeachment trial in February 2021, he was acquitted by the Senate of that charge.
This is important because the Constitution carries another important prohibition regarding a person’s guilt: Article 1 Section 9 Clause 3 specifically bars the Congress from passing any “Bill of Attainder”, defined explicitly in Cummings v Missouri3 as follows:
A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.
Article 1 Section 10 Clause 1 further extends this Constitutional prohibition to the several states, something Chief Justice John Marshall explicitly affirmed in Fletcher v Peck4.
Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State.
No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.
Yet even if Article 1 Section 10 of the Constitution did not extent the prohibition to the several states, and even if Marshall had not so affirmed in Fletcher, the Fourteenth Amendment’s mandate for the equal protection of the laws would automatically extend the Constitutional prohibition on bills of attainder to the several states.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
By declaring Donald Trump to have participated in an insurrection, to declare him to have sought to incite an insurrection, Maine, just like Colorado, is enacting an administrative bill of attainder against Donald Trump, declaring him to be guilty of a crime without having conducted a proper trial, as his absolute Constitutional right.
The prohibition against bills of attainder is absolute, categorical, and unequivocal. Neither the Congress, nor the Several States, nor any department of any level of government may impose such a thing on any person. Period. End of Sentence. End of Discussion.
Before Donald Trump can be declared to have participated in an insurrection, he must first be tried and found guilty of the crime of insurrection. That is fundamental due process of law. Maine, like Colorado previously, is giving Donald Trump no process of law at all.
Neither Maine nor Colorado are defending or upholding the Constitution with these lawless and unconstitutional decisions regarding Donald Trump. They are disregarding the facts, the text of the Constitution, and Donald Trump’s inalienable civil liberties.
This will not end well for either Maine or Colorado. The question is how badly will it end for the rest of the United States.
Cummings v. Missouri, 71 U.S. 277 (1867)
Fletcher v. Peck, 10 U.S. 87 (1810)
So I read the words Maine Secretary of State Removes Trump from the Ballot. Clear statement. But what I mis-read to myself is Secretary of War Removes Trump from the Ballot. Whoa. States don't have a War Secretary. And I don't misread words. But it is a mirror of deep down what I am thinking and feeling.
If this too gets walked back, like the recent Colorado nonsense, I would agree with James Woods recent tweet - "And just like that, everybody stopped talking about crooked Joe's bagman kid and the decades in prison he's facing. Nice play Colorado!" - that we're ALL being played.
Kabuki theatre for the masses.