Is Trump An Insurrectionist?
The Media And Democrats And Jack Smith Say He Is. Do The Facts Bear This Out?
Today I begin by reiterating a point I made when the Colorado State Supreme Court ruled Donald Trump was ineligible to stand in the Republican Presidential primary election due to the 14th Amendment’s “insurrectionist ban”: we now have a true Constitutional Crisis.
That crisis was amplified further when President Biden stated that it was “self-evident” that Donald Trump was an insurrectionist.
“I think it’s self evident” that Trump is an insurrectionist, Biden told reporters after stepping from Air Force One in Milwaukee.
“Whether the 14th Amendment applies, I’ll let the court make that decision,” Biden said.
“But he certainly supported an insurrection. There’s no question about it. None. Zero,” Biden said. “He seems to be doubling down on everything.”
There is, however, one very glaring and fatal flaw with this characterization of Donald Trump by Dementia Joe: Donald Trump has never been convicted of inciting or supporting any insurrection. The only time an incitement of insurrection charge was leveled against him was at his second impeachment trial, and there he was acquitted.
How can someone never convicted of inciting or supporting or participating in an insurrection be, before the law, an “insurrectionist”?
The short answer is simple: he cannot. Mere presumption of innocence alone precludes that possibility.
However, as the Colorado ruling makes clear, this “insurrectionist” claim will not simply go gently into that good night, and so it is appropriate to review the factual materials surrounding the claim.
We must review the facts, because, contrary to the ramblings of Dementia Joe, what is “self-evident” from the facts is that Donald Trump is not an insurrectionist. The corporate media can and will spin whatever narratives it desires, but no narrative can ever alter the fundamental truth established by an objective consideration of the facts.
We must begin by acknowledging what is factually obvious: “insurrection” is a specific federal offense, and the 14th Amendment specifically bars any public official, particularly of the federal government, from holding elective federal office if they have participated in or supported an insurrection.
Specifically, we are dealing with Section 3 of the 14th Amendment to the Constitution:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Insurrection and rebellion are classified as offenses1 under federal law:
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.
For clarity, by “insurrection”2 we should understand that to mean “a rebellion of citizens or subjects of a country against its government.”
Further, we should be clear on the meaning of “rebellion”3:
The taking up arms traitorously against the government and in another, and perhaps a more correct sense, rebellion signifies the forcible opposition and resistance to the laws and process lawfully issued.
With this understanding of “insurrection” as it is used in 18 USC §2383, we can begin to assess its use with regards to the breaching of the Capitol grounds by Trump supporters on January 6, 2021, as Congress convened to certify the results of the 2020 election.
This riotous act—and there is no doubt that the event became at the very least a riot when Trump supporters pushed past barricades outside the Capitol and entered the building—has been characterized by the media as an instance of blatant and open insurrection against the United States government. Unsurprisingly, the media has at the same time characterized Trump’s tweets and public comments on January 6 as arguably inciting that act of insurrection:
Former federal prosecutor Randall Eliason wrote in The Washington Post on Friday that Trump’s actions should be investigated.
“We want to avoid the risk of criminalizing political differences. But that understanding has nothing to do with what happened at the Capitol. It’s impossible to characterize Trump’s incitement of the riot as having anything to do with the legitimate exercise of his executive power — just the opposite,” Eliason wrote.
Trump could be in violation of several federal laws, Eliason wrote, including prohibitions on aiding a rebellion, which has a maximum prison term of 10 years, and conspiring with others to prevent laws from being enforced, which calls for 20 years in prison. The mob that invaded the Capitol interfered with Congress’ counting of the electoral votes and certification of Biden’s victory.
Setting aside for the moment the question of whether the events of January 6, 2021, constituted an insurrection, there are some basic factual summations that can be articulated without any dispute:
Trump supporters breached security at the Capitol around 1PM, Eastern Time.
Donald Trump spoke to a crowd of his supporters at Ellipse Park from approximately 12:00PM to 1:10PM.
Prior to addressing the crowd at Ellipse Park, Donald Trump posted several tweets and made other statements alleging considerable ballot fraud in the 2020 election.
The question of whether Donald Trump is or is not an “insurrectionist” therefore deconstructs into two related questions:
Was the breaching of the Capitol on the afternoon of January 6, 2021, an “insurrection”?
Did Donald Trump incite that breach of the Capitol, regardless of whether it was or was not an insurrection?
Was the breaching of the Capitol an insurrection? Certainly the media has popularized that narrative.
However, a recent summation by Newsweek of the charges filed against various participants in that breach does not once list “insurrection”—the offense articulated at 18 USC §2383—as one of the charges preferred against those arrested in connection with that event. Several participants were charged with and either convicted or were persuaded to plead guilty to a somewhat related charge of “seditious consipiracy”4:
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.
How can there be an insurrection if no one is charged with the offense of insurrection? As a straightforward question of statutory law, the offense of seditious conspiracy is different from the offense of insurrection.
A search of a database compiled by Politico of the people sentenced in connection with the Capitol breach through January 2022 confirms that no one has been sentenced in conjunction with the federal crime of “insurrection”.
Nor can we merely conflate the terms “seditious conspiracy” and “insurrection”5. These are different terms encompassing different offenses.
Q1: What is “sedition” and “insurrection”?
A1: Generally, sedition is conduct or speech that incites individuals to violently rebel against the authority of the government. Insurrection includes the actual acts of violence and rebellion.
This means that several people charged in connection with the January 6 Capitol breech were convicted or pled guilty to conspiring to incite individuals to violently rebel against the authority of the government, but none have been convicted or pled guilty to actually violently rebelling against the authority of the government.
Yet if the breech was not an “insurrection”, what manner of offense was it?
Looking at what can be plainly documented and not contested as fact regarding the breech, it is fair to say that, at a minimum, the breech itself qualifies as a “riot”6:
At common law a riot is a tumultuous disturbance of the peace, by three persons or more assembling together of their own authority, with an intent, mutually to assist each other against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.
This definition comports with how the term is defined in the US Code7:
(a) As used in this chapter, the term “riot” means a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.
Under federal law, participating in a riot is a crime8.
(a) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph— [1]
Shall be fined under this title, or imprisoned not more than five years, or both
Once again we must take note that a “riot” is legally distinct from an “insurrection”. One need only watch the news covering most riots to see that not every riot is an attack upon government, and so not every riot is qualifies as an insurrection.
To further confuse and confound the issue, we should note that, according to both the Newsweek and Politico lists of convictions, no one was charged under the federal riot statute either.
The presumed “riot” which the corporate media have described as an “insurrection” did not result in any arrests of anyone for either rioting or participating in an insurrection. To the corporate media, this makes perfect sense.
Can we objectively conclude on the basis of the facts that the events of January 6 were an “insurrection”? As absolutely no one was charged with insurrection, and only a few were charged with seditious conspiracy, I do not see how that claim can withstand even moderate scrutiny.
The question takes on added relevance in light of the October 18 breaching of the Congressional office buildings by protesters agitating on behalf of the Palestinian Arabs in Gaza.
A pro-Palestinian protest is underway on Capitol Hill as demonstrators are occupying the Cannon Rotunda and large crowds are growing around the Capitol complex.
The Cannon House Office Building holds several House Committee and congressional offices.
U.S. Capitol Police say that demonstrations are not allowed inside Congressional buildings and worked for hours to clear the crowd as they continued to sing and chant "ceasefire now" and "free Palestine." Police say they arrested about 300 people so far.
For our purposes, we need not comment on the propriety of the actions of October 18. We merely need note that those disruptions were not characterized in the corporate media as any sort of “insurrection,” highlighting once again that a “riot” is not an “insurrection,” even if it takes place on government grounds.
Given the broad similarities between the October 18 breach of Congressional office buildings and the January 6, 2021 breach of the Capitol itself, including the fact that no one in either event was charged with insurrection, how can we conclude but that the events of October 18 undermine considerably the depiction of the January 6, 2021 breach of the Capitol as an insurrection?
We can further consider the claim of insurrection now that Speaker of the House Mike Johnson on November 17th made public the video footage from the Capitol on January 6, 2021, that had been provided to Congress in the aftermath of that event. With over 22 Gigabytes of video footage now posted online, there is far too much there for an exhaustive inventory and assessment here. The reader is invited to view that footage directly and conclude for himself or herself whether what happened on January 6, 2021, qualifies as an “insurrection”. I will say that, in my opinion, the footage makes it clear that what transpired was unquestionably a riot, and in my view it is surprising and shameful that people were not charged under the federal riot statute.
Yet the legal actions taken thus far preclude that riot from being legally considered an insurrection. January 6 was lawless and reckless and, for Trump supporters in particular, just not a smart thing to do—but it legally has never been regarded as an insurrection, for the simple fact that nobody has been charged with insurrection.
Insurrection is a federal offense. If someone is provably participating in an insurrection the impartial execution of the law demands that person be charged with insurrection. In the same vein, the impartial execution of the law also leads us to conclude that, if no one has been charged with insurrection, they cannot be proven to have participated in an insurrection. Thus all objective evaluation of the facts and applicable law result in the same conclusion: January 6 was not an insurrection.
That January 6 was not an insurrection was also the broad conclusion of the FBI later in 2021.
The FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result, according to four current and former law enforcement officials.
Though federal officials have arrested more than 570 alleged participants, the FBI at this point believes the violence was not centrally coordinated by far-right groups or prominent supporters of then-President Donald Trump, according to the sources, who have been either directly involved in or briefed regularly on the wide-ranging investigations.
Breaching the Capitol was unquestionably a lawless action. It was without a doubt a riot and therefore a crime. However, with no one charged with insurrection, with the video footage not supporting a charge of insurrection, with law enforcement agencies including the FBI declining to characterize the breach as an insurrection, there is zero factual basis for its depiction by the media and by Democrats as an insurrection.
Now we must take up the second question: Did Donald Trump incite the January 6 riot? Did he encourage, instruct, or inspire his supporters to engage in imminent lawless actions culminating in the riot at the Capitol?
Here we must draw an important distinction between utterances as action and as speech. This is a crucial understanding when contemplating issues of Free Speech, because the essence of Free Speech is that ideas are not lawless and should never be made illegal, while actions may be lawless and occasionally are illegal. This delineation is at the heart of a seminal Supreme Court case involving Free Speech, Brandenburg v Ohio9, which provided a clear test for differentiating action from speech.
This concept appears again in Brandenburg v Ohio (1969, 395 US 444) , in which the "Brandenburg Test" was established, creating a two part test by which speech advocating criminal acts could be circumscribed:
The speech is “directed to inciting or producing imminent lawless action, AND
The speech is “likely to incite or produce such action.”
The linkage is clear: people must account for their actions, not their ideas.
This delineation is actually conceded by Jack Smith in his prosecution of Donald Trump in relation to the Capitol breech.
We need look no further than Smith’s indictment to realize that Trump’s statements alleging massive election corruption and ballot fraud on their own are categorically protected speech and thus, per the Brandenburg tests, cannot be considered incitement of anything.
Note also that Smith did not charge Donald Trump either with “seditious conspiracy” or “insurrection”
In fact, the only occasion when Donald Trump has been charged with “incitement of insurrection” is in his second impeachment trial, wherein it was alleged that his address to his supporters at Ellipse Park constituted incitement.
Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that "we won this election, and we won it by a landslide". He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: "if you don’t fight like hell you’re not going to have a country anymore". Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.
However, as a matter of legal interpretation, whether Donald Trump’s address at Ellipse Park qualifies as incitement is far from certain.
Andrew Koppelman, a constitutional law professor at Northwestern University in Evanston, Illinois, said it would be difficult to prove Trump intended for violence to ensue at the Capitol.
“It looks to me like Trump was culpably reckless. But it seems to me the Brandenburg standard requires intention,” Koppleman said.
Professor Garrett Epps of the University of Baltimore was similarly circumspect, although he clearly is no fan of Donald Trump.
It's quite rare that somebody can be convicted of incitement. In applying that to the president's speech at the Wednesday rally, it's an agonisingly close case. It's pretty goddamn imminent because he's telling people to march to the Capitol and I will march with you. There wouldn't be any time for better counsels to prevail because you're just going to leave the Ellipse and walk down Pennsylvania Avenue. He says we have to fight and show strength, but he also said we're very peacefully and patriotically going to ask, so he's covering himself. In the end, I think it's a jury question.
However, we are not obliged to rely solely on the opinions of legal scholars. We have the transcript of Trump’s address at Ellipse Park, and the reader again can assess independently whether Trump’s remarks were a call even to violence, let alone insurrection.
We should take clear note of the full context of the “fight like hell” comment that was the centerpiece of Trump’s second impeachment trial:
And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.
Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country.
And I say this despite all that's happened. The best is yet to come.
So we're going to, we're going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we're going to the Capitol, and we're going to try and give.
The Democrats are hopeless — they never vote for anything. Not even one vote. But we're going to try and give our Republicans, the weak ones because the strong ones don't need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country.
While Donald Trump is unmistakably calling for action, “walk down Pennsylvania Avenue” and “give our Republicans…pride and boldness…” is not even a call for a riot, but rather a simple call for a protest march which, if peaceably conducted, is categorically protected by the First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Donald Trump’s call to action cannot plausibly be read to mean anything other than a peaceable assembly to petition the Government for a redress of grievances—namely, the challenged (and unlawful/unconstitutional?) certification of the Presidential election. A call for peaceful action cannot be counted as an incitement to violence.
Even if the speech could be considered an incitement, there is a further problem of chronology: The timeline of the riot’s onset places it during Trump’s speech.
The Capitol is 1.6 miles away from Ellipse Park which is near the White House. This is approximately a 30-33 minute walk. Trump began addressing the crowd at 11:58 AM and made his final remarks at 1:12 PM. Therefore, protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.
Before Trump had even uttered the words “fight like Hell”, the riot was already under way. Even if the “fight like Hell” statement qualified as an incitement, the riot which it was presumed to have incited was demonstrably underway before the statement was made.
For Donald Trump to have incited the January 6 riot with that statement, he would have had to violate not just the laws of man, but also the laws of physics!
Having read Trump’s Ellipse Park address, I am unable to see how that speech qualifies as incitement under the Brandenburg tests. The words do not rise to incitement, and the timeline of events precludes them from serving as an incitement.
As for his other commentaries and tweets regarding ballot fraud and corruption in the voting process, even Jack Smith admits in his indictment of Donald Trump that such comments are on their face legal, permissible, and categorically protected speech.
If Ellipse Park was not incitement, and Trump’s earlier commentaries were perfectly legal and protected speech, where is the legal basis for accusing Trump of incitement? There is none.
Might this have been the reason Trump was acquitted at his second impeachment trial? Might it have been that the evidences proffered by the Democrats at that trial were simply not persuasive enough to overcome any political considerations held by the various Senators?
If the evidence was unpersuasive to the full Senate during the impeachment trial, how much less persuasive must it be regarded in a criminal context? How much less persuasive must that evidence be if Jack Smith was unwilling to charge Donald Trump either with “seditious conspiracy” or “insurrection”?
While the media has had great sport pontificating and pronouncing the January 6 riot to be an insurrection, as has been so frequently the case in recent years, the facts simply do not align with that narrative. January 6—”J6” in social media argot—was a riot, but it takes an extremely partial and prejudicial application of federal statute to conclude that it was an act of insurrection. It takes an equally partial and prejudicial application of the Brandenburg tests to conclude that Trump’s Ellipse Park speech was an incitement.
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.
As Donald Trump cannot be legally considered an insurrectionist, Section 3 of the 14th Amendment cannot be applied against him.
For that reason alone, the ruling of the Colorado State Supreme Court is flawed, and the United States Supreme Court should overturn that ruling posthaste.
"insurrection." A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. 1856. 21 Dec. 2023 https://legal-dictionary.thefreedictionary.com/Insurrection
"rebellion." A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. 1856. 21 Dec. 2023 https://legal-dictionary.thefreedictionary.com/Rebellion
Spaulding, S., et al. Critical Questions: Understanding Insurrection and Sedition. 29 Jan. 2021, https://www.csis.org/analysis/understanding-insurrection-and-sedition.
riot. (n.d.) A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. (1856). Retrieved December 21 2023 from https://legal-dictionary.thefreedictionary.com/riot
Brandenburg v Ohio (1969, 395 US 444)
This sounds exactly like what the Canadian government did with the truckers and the invoking of the Emergencies Act. They twisted and mangled the spirit of the law stretching just enough to 'justify' invoking the EA. They were getting caught up in all the messy legalese to the point it became a joke. They, in the end, admitted they had to bypass the law because there was a threat to national security - even though there never was one as clearly stated by our national security apparatus (CSIS) and law enforcement. To this day, the 'inquiry' (called POEC) looking into it left more questions than answers.
The ruling judge (a lifelong Liberal activist) 'reluctantly' determined the government 'met the threshold' to invoke despite the entire inquiry pretty much concluding the opposite.
We're living in the bizarro world. Inverted realities.
And it's not good.
President Trump cannot be an insurrectionist because there was no insurrection. There was no riot either. There was an election integrity protest, wherein the protesters were freely admitted to the Capitol by security and peacefully escorted as they paraded through the building. We've all seen the videos.
There was no riot, and they're was definitely no military or paramilitary activity. No one attempted to form a new government, nor was there any effort to seize & hold the Capitol. The only major criminal act was the theft of Enemy of the People Speaker Pelosi's lectern.
Anyone who calls the January 6 election integrity protest an insurrection is either cluelessly ignorant, or lying. That's it.
I continue to wonder how much money the Injustices of the Colorado Supreme Kangaroo Court accepted from hostile foreign agents and NGOs. Or perhaps it was blackmail?