On Wednesday, President-elect Joe Biden said that some of what unfolded at the Capitol “borders on sedition.” Given the prevalence of American flags on the Mall this week and the rioters’ chants of “U.S.A.! U.S.A.!”-however malicious their deeds-it would be nearly impossible for prosecutors to prove their goal was treasonous. on behalf of an enemy and then commit an overt act of such betrayal. Over the years, the Supreme Court and Congress have further narrowed the scope of what constitutes treason: To be guilty, you must have the specific intent to betray the U.S. There are only two ways to commit this offense, they said: “levying war” against America or “giving aid and comfort” to one of the nation’s enemies-typically a foreign adversary. The Founders intentionally described it narrowly, so that any repressive future president could not use it to punish political opponents. Constitution rather than by the laws that Congress has passed in the centuries since. Treason is unique: It is the only crime defined by the U.S. ![]() The folks at The Marshall Project put out “ A Civilian’s Guide to Insurrection Legalese” on January 8, 2021–less than two days after the events in question. And we’ve known that since the beginning. At the same time, I have simultaneously maintained that he almost certainly hasn’t met the extremely high bar the Supreme Court has set for charging him with criminal incitement. So, for example, I have maintained since the earliest days that Trump is morally and politically guilty of inciting the riots and should have been impeached (which he was), found guilty (which he predictably wasn’t), and shunned (which is true for roughly the half of Americans who opposed his reelection). I have therefore long been using “riot” as a blanket term to describe what happened and have gone to great pains to distinguish between the conduct of individual cases, usually based on incomplete media accounts.Īs to “why hasn’t anyone been charged with insurrection (or treason, or sedition, or whathaveyou)?” the answer is that our lay use of these terms differs from the legal standards and burdens of proof associated with them. The exact extent of the relationship between them still remains unclear to me. While I quickly embraced the “insurrection” label, it didn’t take me long to come to the conclusion that what happened that day was not a single event but a series of overlapping ones: insurrectionists legitimately hoping to overturn the election/seat the person they believed the rightful winner via violence violent extremists using the mob to engage in mayhem with little interest in the election results Trump supporters who came to demonstrate and got caught up in the frenzy of the riot and yahoos, most of them Trump supporters, who went into the Capitol after the barricades had been abandoned who went in for shits and giggles and to take selfies for social media. My sensibilities here are similar to Dave’s in that we both believe Biden clearly won the election, that the events of a year ago went well beyond lawful protest, and that there is a lot of hysteria and grandstanding going on. If so, there was no insurrection and claiming there was is mischievous. Does the same standard apply to the election and the breaching of the Capitol? If not, why not. ![]() So far none of the 700 some-odd individuals who have been charged with crimes in connection with the Janubreaching of the Capitol has been charged with insurrection. ![]() Just as with 9/11 practically nothing has been learned since the breaching of the Capitol. I think it’s important to distinguish between a reasonable revulsion at the events and partisan posturing or battlespace preparation. All of those involved should be prosecuted to the full extent of the law.ģ. Januwas significant and the actions of those who breached the Capitol were wrong.Ģ. In separate posts this morning, Dave Schuler observes,ġ. As Congress prepares to affirm President-elect Joe Biden’s victory, thousands of people have gathered to show their support for President Donald Trump and his claims of election fraud. Trump supporters try to break through a police barrier, Wednesday, Jan.
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