Originally posted June 29, 2021.
Andrew C. McCarthy in NRO lays out the good, the bad, and the ugly during the January Capitol Riots.
Congress Was Obstructed
The most significant event that happened on 6 January was that Congress was obstructed while “conducting a constitutionally required proceeding, in which both houses and the vice president quadrennially bear witness to the counting of state-certified electoral votes and then formally acknowledge the winner of the presidential election, who is to be inaugurated two weeks later,” summarizes Mr. McCarthy.
Congress and VP Forced to Evacuate
The storming of the Capitol required then-vice-president Mike Pence and lawmakers to be evacuated. Because of bureaucratic incompetence, as well as President Trump’s unwillingness to discourage the rioters or call in the National Guard, it took hours longer than it should have to suppress the agitators, clear the building, and reconvene the session.”
- The damage was minimal.
- There was no need to find an alternative location.
- There was no prospect that Pence and Congress would be dissuaded from performing their duty.
- By the wee hours, Joseph Biden had been duly recognized as the president-elect. Trump was quickly shamed into committing to an orderly transition.
- Biden was timely inaugurated, as there was no doubt he would be.
Displacement of Accountability
The “insurrection” rhetoric is hyperbolic, argues Mr. McCarthy. It seems many Democrats have failed to remember Hillary Clinton’s advice to Joe Biden: Never Concede.
The Biden-Garland Justice Department’s portrayal of right-wing groups as an emerging white-supremacist ISIS is preposterous. As horrific as January 6 appeared to be, the real threat to democracy was not the Trump supporters. It was Trump. It was a two-month barnstorm of which January 6 was the climax. It was the turning of the powers and prestige of the presidency against the Constitution presidents are sworn to preserve, protect, and defend.
Attorney General Merrick Garland portentously described 6 January as “the most dangerous threat to our democracy” that he has ever seen in his career. That from a longtime former judge and prosecutor who, as a top Clinton Justice Department official, not only guided prosecutions of Jihadist attacks that killed hundreds in the 1990s, but personally supervised the investigation of the 1995 Oklahoma City federal-courthouse bombing, in which a terrorist, Timothy McVeigh, murdered 168 Americans.
“Incitement to Insurrection”?
Included in Democrats’ Trump impeachment article and their pretrial brief filed with the Senate a month later, the dubious and, we now know, false allegation that rioters had caused Capitol Police officer Brian Sicknick’s death by bashing his head with a fire extinguisher.
In reality, Sicknick died of natural causes (two strokes) the day after the riot; he’d suffered no blunt-force trauma, and no one (including two rioters accused of assaulting him with bear spray) has been charged with homicide.
A 6 January Probe
A probe could easily be conducted by Congress’s standing committees or by a special committee, perhaps a bicameral committee, formed for the purpose. The House Democrats, who managed to impeach Trump twice, the second time in warp speed, could get such hearings up and running tout de suite.
Indeed, even as Democrats were clamoring that a commission was the only way to go, two standing Senate committees managed to investigate and issue a lengthy bipartisan report on the mind-boggling security and intelligence failures that resulted in the January 6 mob’s overmatching of the police guarding the Capitol.
6 January on par with Jihadists Murdering 3,000?
Democrats have to this point eschewed this approach for a simple reason: They want a 9/11 Commission–style extravaganza to sear in public consciousness their ceaseless narrative that the Capitol riot was a terrorist atrocity on par with the jihadist murder of nearly 3,000 Americans.
To hear the Biden Justice Department tell it, the penalty for engaging in what Democrats and their media allies incessantly refer to as an “insurrection” at the Capitol on January 6, 2021, should be about . . . well . . . three and a half years. That would be comfortably within the sentencing range that prosecutors concede applies to the first major defendant to plead guilty in the case, Jon Schaffer, a founding member of the Oath Keepers militia organization. To be more precise, he is looking at 41 to 51 months’ imprisonment. Probably even less than that, because he has agreed to cooperate with investigators.
Turning a Blind Eye to Jihadism
Democratic proposals for heightened law enforcement and intelligence surveillance of right-wing groups gave us, even before Biden took office, the proposed Domestic Terrorism Prevention Act. It would expressly direct executive agencies to focus their attentions on white supremacism, simultaneously prescribing a new definition of “domestic terrorism” that exempts from its coverage persons in the United States who are “associated with or inspired by” foreign terrorist organizations. That is, it turns a blind eye to Jihadism . . . which, naturally, is why Democrats garnered support for their gambit from an array of Islamist-apologist and progressive groups (e.g., Muslim Advocates, the Arab-American Institute, and the Southern Poverty Law Center) heretofore hardwired to oppose U.S. counterterrorism efforts.
What Is Insurrection?
Mr. McCarthy explains insurrection as being a “violent domestic uprising that entails levying war against the United States or opposing the government’s authority by force.”
Federal law regards conspiracies to do these things as sedition in a penal statute (Section 2384) that has been invoked in connection with serious terrorist attacks. (I used it in 1995 to prosecute a jihadist cell that bombed the World Trade Center and plotted to bomb New York City landmarks.) Insurrection is the carrying out of an uprising. It is noteworthy that, for all the politicized prattling about insurrection, none of the hundreds of rioters thus far arrested has been charged with the federal crimes of insurrection and sedition.
Presidents Who Used This Authority
- President Washington relied on this authority to, for example, put down the Whiskey Rebellion in western Pennsylvania in 1794.
- President Jefferson in 1807 signed the Insurrection Act, which enabled the president not only to call forth the militia but to “employ . . . such part of the land or naval force of the United States” judged necessary to suppress an insurrection. After the Civil War started, Congress undertook to oppose the rebel states by “an act to suppress insurrection and rebellion.”
- President Lincoln duly incorporated into an 1862 proclamation, warning the seceding states and their sympathizers to desist. It was in reference to the Civil War that, in 1868, the 14th Amendment banned from federal office those who “shall have engaged in insurrection” against the United States.
Missing: Relevant Law Enforcement Agencies
As McCarthy duly notes, the January 6 rioters did not wage war against the United States. Not only were they dispersed within a few hours; the aforementioned Senate report indicates that the tumult would have been ended even more quickly — and perhaps not even have started in the first place — if the relevant law-enforcement agencies had deployed an adequate number of properly trained police officers.
In fact, the only person killed in the mêlée was Ashli Babbitt, a pro-Trump rioter shot by an unidentified security guard as she and others tried to burst through doors leading to the Speaker’s Lobby, which provides access to the House chamber.
As Mr. McCarthy notes, the capital riot of 6 January is very far from nothing.
Hundreds of Trump supporters did nothing more serious than trespass the Capitol, which may belong to the people, but by law it is a restricted-access federal facility. It may also be that some of those who’ve been identified in the government’s no-stone-unturned, no-Facebook-photo-ignored dragnet never got near the Capitol, or were unaware that entry was prohibited by the time they harmlessly wandered through.
Based on the Justice Department’s public disclosures, CBS News reports that more than 130 people have been charged with assaulting, resisting, or impeding federal officers; over 40 have been charged with using dangerous weapons (though these charges mainly involve bear spray and other toxic aerosols, not firearms); and another 30 have been charged with some degree of property destruction.
And yes, Mr. McCarthy points out, this can be called a national disgrace.
The disconnection, however, between the grave constitutional affront – namely the effort to reverse a presidential election – and the crimes committed in the furtherance of it, which were comparatively minor in the sense that the perps had no conceivable prospect of achieving that objective.
Insurrection Was the Furthest Thing from Trump’s Mind
Originally posted May 27, 2021.
Originally posted on January 15, 2021.
At The American Spectator, Dov Fischer details the evidence that there was no incitement of insurrection by the president. He writes (abridged):
I have been an attorney for more than 20 years, litigated on the front lines in the biggest of cases, served as a former Chief Articles Editor of one of America’s most respected law reviews, been an adjunct law professor for 16 years, and more.
My politics is my subjective politics, but the law is the objective law. Under the law — criminal law — there is a concept known as men’s rea. That Latin term derives from the phrase: “actus reus non facit reum nisi mens sit rea” (“The act is not culpable unless the mind is guilty”). There is no crime of incitement nor any crime at all here if the acting party had no intention to incite a crowd to act unlawfully.
I have played and watched — several times — the full actual speech that Trump delivered on January 6.
Any fair person who listens to the embedded link especially for one minute between 18:00 and 19:00 — and particularly to the words at 18:47–18:56 — cannot but recognize that President Trump, lacking even a bare modicum of training or hands-on experience in the dynamics of street protest, an area completely outside his many, many fields of remarkable expertise, never intended for an unlawful assemblage nor for violence of any kind to take place.
An insurrection or coup was the furthest thing from his mind.
For him it was one more motivating speech, one more chance to assure his most devoted followers that, as long as they stand with him, he will not back down in his efforts to gain a lawful, legal investigation into the veracity of the reported November 3 presidential election results.
Be fair and listen objectively to the speech, especially at the one-minute section that plays at 18:00–19:00 at this link.
Read the transcript.
Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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