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Jan 6th Insurrection

Rob

  • Could say a very small minority of people could fit the definition of insurrection on Jan 6th, but Trump would not (source that says it was hearsay conversations)
  • Attack Graber himself as a Trump hater
  • Article from Steve
    • noscitur a sociis
  • FBI finds scant evidence it was coordinated
  • Overarching Frame:
    • While you (the opposition) are attempting to apply a so-called “standard legal definition” of insurrection in this debate, and we are just people arguing on the internet about a legal definition, the results are clear in the actual courts. Not one person involved in January 6th was charged or convicted of insurrection, even with this broad “standard legal definition” and certainly Trump wasn’t convicted of insurrection. And this is obviously not due to a lack of motivation as politically motivated DAs and the DOJ have been attempting to make anything stick to Trump or people they think are his supporters.

Hey Rob, I’ve done some research on the insurrection and its definition. Thought I’d give you some of what I’ve found and some of my thoughts on the arguments.

Destiny & Pisco want to frame the debate in a legal framework using a definition submitted into the Colorado Supreme Court by Mark Graber. A reframe to this could be: “While you (the opposition) are attempting to apply a so-called “standard legal definition” of insurrection in this debate, and we are just people arguing on the internet about a legal definition, the results are clear in the actual courts. Not one person involved in January 6th was charged or convicted of insurrection, even with this broad “standard legal definition” and certainly Trump wasn’t convicted of insurrection. And this is obviously not due to a lack of motivation as politically motivated DAs and the DOJ have been attempting to make anything stick to Trump or people they think are his supporters.”

Talking Points:
-Steve Calabresi, a well-respected Professor of Law, argues that January 6th wasn’t an “insurrection”: https://reason.com/volokh/2024/01/06/january-6-2021-was-not-an-insurrection/
-DOJ case against Trump that didn’t include insurrection as a charge and why: https://www.semafor.com/article/08/02/2023/donald-trump-indictment-jack-smith-insurrection-charge (Case dismissed due to appointment of Jack Smith was unlawful)
-Chuck Gray, Secretary of State of Wyoming, amicus brief challenging the insurrection definition in the Colorado Case: 20240118180130038_23-719_Amicus%20Brief.pdf pg. 19

You could attack Mark Graber as biased: Leftist, wrote a pro-choice book, favored Stormy Daniels in 2018 breaking NDA, gave 5 out of 5 stars on Amazon for the book “Fight for Liberty: Defending Democracy in the Age of Trump” which was published in 2018.

Against Talking Points

  • No standard definition of ‘Insurrection’ in federal law
  • Nobody was charged with Insurrection
  • Last person charged with insurrection was in 1954 (is this true?)
  • Seditious conspiracy may fit better
  • Hearsay within hearsay
    • The evidence just recited shows beyond a reasonable doubt that Trump intended to assist an insurrection against the authority of the United States. But readers of this article might be more impressed by this evidence than actual jurors would be by the evidence presented at a criminal trial. One reason is that some of the evidence developed by the Select Committee and reiterated in this article wouldn’t be admissible in its current form.
    • The Select Committee frequently presented what lawyers call “hearsay within hearsay.” At a trial of Donald Trump, his own statements would be admissible under an exception to the hearsay rule—but only if the government could establish through admissible evidence that he made them. And none of the people who supplied evidence of Trump’s statements during the 187 minutes he refused to perform his constitutional duty were present at the time he made them. These witnesses quoted the descriptions of others.
    • Seditious Conspiracy vs. Insurrection: Assessing the Evidence Against Trump
  • Backup:
    • A very minuscule number may have committed insurrection during January 6th; but certainly not Trump
  • No guns
  • Two and one-half hour event
  • Colorado rules that Trump isn’t part of 14th Amendment Second 3, because its federal
  • Why Trump is not facing an insurrection charge | Semafor

Definition

Congress Questions

WHAT CONSTITUTES AN INSURRECTION The SPEAKER pro tempore. The Chair recognizes the gentlewoman from Georgia (Mrs. GREENE) for 5 minutes. Mrs. GREENE of Georgia. Mr. Speak- er, I rise in opposition to the commis- sion to study the events of January 6, as well as spending $2 billion in a secu- rity supplemental. The question that comes to mind is this: What about all the riots that hap- pened during the summer of 2020 after the death of George Floyd? What about all the damage caused to Federal build- ings, churches, people’s businesses, and innocent people that were killed, like David Dorn? This past summer, Minneapolis city officials estimate 700 buildings were damaged, burned, or destroyed, includ- ing 360 local businesses. Riots caused an estimated $55 million in damages in Minneapolis alone. BLM and antifa established an auton- omous zone in Seattle and attempted to burn government buildings in Port- land. Is that not an insurrection? On one Friday night alone in New York City, BLM protesters caused over $100,000 in damages, and 150 people were arrested. Just one Monday night in Philadel- phia resulted in a crowd of 1,000 people looting stores, setting fires in the mid- dle of the street, and 30 police officers injured. Protests in Kansas City resulted in $2.1 million in damages, mostly over the course of one weekend. Several of- ficers were injured as well. Protests in Wichita, Kansas, cost the police department about $1.5 million in overtime. Protests in Salt Lake City cost at least $100,000 in damages. Protests in Denver cost the city at least $5.5 million in damages and over- time. BLM protesters in Nashville set a Federal courthouse on fire. The de- struction is estimated to have cost $1.2 million in damages. Again, is that an insurrection? Protesters in Portland destroyed bar- riers and attempted to burn down gov- ernment buildings, resulting in $2.3 million in damages, including $1.6 mil- lion in damages to the courthouse downtown. In St. Louis, following a night of vio- lence, buildings were looted, vandal- ized, and burned. Protestors in Louisville set the courthouse on fire and shot two cops, resulting in a state of emergency order being declared. Protesters in Kenosha, Wisconsin, in- jured police officers, set off fireworks near the police and courthouse, and set at least two city trucks on fire. In Guilford County, North Carolina, a courthouse was broken into and set on fire, resulting in roughly $200,000 in damages. Protests in Oakland, California, re- sulted in a courthouse being set on fire and vandalized. The LAPD was defunded by $150 mil- lion, and some smaller crime units were eliminated entirely. Studies show 570 protests in 220 U.S. locations turned violent over the sum- mer. Are those not insurrections? The $1-plus billion in riot damages is estimated to be the most expensive in insurance history. It resulted in up to $2 billion of damages in 20 cities across the U.S., mostly concentrated in L.A., Detroit, Miami, D.C., and New York. Indeed, we should have a commission to study the violent BLM and antifa mobs that have plagued American cit- ies this past summer, and that is for the American people who, by the way, pay the taxes that fund everything we do here. Also, we should have a security sup- plemental to fund all the police depart- ments that have been defunded due to the pressure from radical, violent, and socialist groups. We should back the blue because they certainly back us. Also, while it is catch-and-release for domestic terrorists, antifa, BLM, the people who breached the Capitol on January 6 are being abused, some even being held for 23 hours a day in solitary confinement. So, Mr. Speaker, my questions are these: Who placed the pipe bombs at the RNC and the DNC, which is an at- tack on both Republicans and Demo- crats? Why was President Trump’s re- quest on January 5 for 10,000 National Guard denied, and who denied it, and what chain of command did they fol- low? Also, who killed Ashli Babbitt, and why is that not being revealed? Does her family not deserve justice? Lastly, when will the witch hunt of Donald J. Trump come to an end, and all of those who support him? <span class="fg-file-unavailable">dacb7cb8a7a14726042df14aaa3ab3c8_MD5, page 5 <small>(file not included in this release)</small></span>

Open: CREC-2021-05-18.pdf (file not included in this release)
dacb7cb8a7a14726042df14aaa3ab3c8_MD5.pdf (file not included in this release)

Graber definition of “Insurrection”

  • New Mexico Graber Testimony
    • This testimony came from Mark Graber, a Regents Professor at the University of Maryland Law School, who has taught American political and constitutional history for 30 years. To arrive at an understanding of 19th century understandings of those terms, he testified, he “read the entire Congressional globe as well as the Journal of the Joint Committee on Reconstruction, which was responsible for drafting specific language.” He also “looked particularly at various drafts of Section 3,” and “why it changed and sometimes why it didn’t change.” He also “looked at events before 1866 trying to figure out how Americans at the time used words,” spending particular time “on loyalty oaths.” Finally, he drew upon comprehensive databases to examine every use of the word “insurrection” in judicial opinions, presidential proclamations, and legal treatises from circa 1789–1876. In his testimony, he identified a “broad consensus” on what insurrection meant and what “engaging in” one entailed. link
  • 002 2023 11 20 Amicus Brief - Professor Graber (CSC) (Date Stamped).pdf (file not included in this release)
    • General agreement existed among judges and influential legal commentators that an insurrection had four elements:
      • (a) an assemblage,
      • (b) actual resistance to a federal law,
      • (c) force or intimidation, and
      • (d) a public purpose.
      • Resistance to a federal law was sufficient. Section Three, like the constitutional law of treason, which informed the framers of Section Three, did not require an effort to overthrow the government. 002 2023 11 20 Amicus Brief - Professor Graber (CSC) (Date Stamped), page 26 (file not included in this release)
  • 23SA300.pdf (file not included in this release)

Upheld by SCOTUS?

23-719_19m2.pdf

Misc

Can Madison Cawthorn Be Blocked From the North Carolina Ballot as an Insurrectionist? | Lawfare
The Dry Run: The Ouster of a County Official as an ‘Insurrectionist’ Creates Ominous Precedents for Trump | Lawfare
Govinfo - insurrection search

NOT an Insurrection

January 6, 2021 Was Not an Insurrection

  • noscitur a sociis — The meaning of an unclear or ambiguous word in a legal text should be determine by considering the words with which it is associated in context.
  • The word “insurrection” in Section 3 appears as part of the phrase “insurrection or rebellion” in a text that had as a paradigmatic example the U.S. Civil War in which 620,000 Americans at a minimum died and possibly as many as 850,000 according to more modern estimates.  This amounts to about 2.5% of the population, which today would be 7 million people.
  • Webster’s 1828 Dictionary online defines “rebellion” as being “An open and avowed renunciation of the government to which one owes allegiance; or the taking of arms traitorously to resist the authority of lawful government; revolt.”  The word “insurrection” draws its meaning in Section 3 of the Fourteenth Amendment from the word “rebellion”, with which it is associated.

The January 6th Riot Was Not Like the Civil War

  • The paradigmatic “wrong” underlying Section Three of the Fourteenth Amendment was an insurrection and rebellion during the U.S. Civil War that led to the deaths of between 620,000 and 850,000 Americans.
  • The “insurrections or rebellions” contemplated by Section Three must be threats to the government akin to that posed by the U.S. Civil War.

Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated - sources

20240118180130038_23-719_Amicus Brief.pdf (file not included in this release)

  • Again, the Colorado Supreme Court erred in applying a too-lax definition of section 3’s key terms. That court defined “an insurrection as used in section 3 is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.” Pet. App. 85a (ci- tation omitted). In the Colorado Supreme Court’s telling, that definition required neither “highly organized” activity nor any “probable success” of the political unrest at hand, id. at 86a-87a. Nor did that court attempt to distinguish an insurrection from other forms of unrest by reference to a minimum scale: though the court described the group that entered the Capitol on January 6 as “large,” it defined an insurrection as requiring only a “group of people.” Id. at 87a. Tellingly, that court referenced these individuals as “armed,” yet in the next breath, credited findings that “many in the mob” improvised weapons from objects at the Capitols. Id. 20240118180130038_23-719_Amicus Brief, page 29 (file not included in this release)

Was an Insurrection

The January 6 Attack was an Insurrection
Why treason is a key topic in Trump’s 14th Amendment appeal to the Supreme Court
Opinion of the Colorado Supreme Court on Trump
Brief for Amici Curiae Former Republican Members of Congress in Support of Respondents
Brief of Constitutional Law Professor Mark A. Graber as Amicus Curiae in Support of Respondent
Couy-Griffin-New Mexico

Mark Graber

Law

The Insurrection Act and Executive Power to Respond with Force to Natural Disasters
Georgia Code § 16-11-3 (2022) - Inciting to Insurrection :: 2022 Georgia Code :: US Codes and Statutes :: US Law :: Justia
Herndon v. Lowry 301 U.S. 242 (1937) Justia US Supreme Court Center

Seditious Conspiracy

https://uscode.house.gov/statviewer.htm?volume=62&page=808

Insurrection Act

  • Since 1807, the Insurrection Act has been amended several times to meet different political challenges. 
    • In 1861, Abraham Lincoln expanded the law to form the legal basis for waging the Civil War. Without it, he wouldn’t have had the authority to send federal troops into a state without the governor’s permission. 
    • After the Civil War, the Insurrection Act was further amended to give the president authority to enforce the 14th Amendment and the conditions of Reconstruction in the South. That authority is now found in Section 253 of Title 10 of the U.S. Code, which gives the president the right to take military action within a state when “any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection.”
    • Thomas Jefferson Signed the Insurrection Act in 1807 to Foil a Plot by Aaron Burr | HISTORY