US Politics: The sides have gotten… weird

[Gorn]

One interesting take: there is already a law on books, passed by the Congress, which bars people convicted in court of rebellion or insurrection from holding federal office, 18 U.S. Code § 2383: https://www.law.cornell.edu/uscode/text/18/2383

Quote

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.

The Trump v. Anderson decision even specifically refers to this law as an example in two places. Meaning there is no need for additional laws to be passed.

Edited March 4 by Gorn

[Many-Faced Votary]

13 minutes ago, Gorn said:

Meaning there is no need for additional laws to be passed.

This is incorrect, or they would have clarified that Trump is already ineligible. As per the ruling, Congress has to pass a resolution confirming that Trump is disqualified on those grounds, or a new law explicitly disqualifying him.

[Gorn]

Just now, Many-Faced Votary said:

This is incorrect, or they would have clarified that Trump is already ineligible. As per the ruling, Congress has to pass a resolution confirming that Trump is disqualified on those grounds, or a new law explicitly disqualifying him.

Trump wasn't convicted under 18 U.S. Code § 2383, at least so far.

[Mudguard]

Yeah, as far as I'm aware, the DOJ hasn't brought a charge under that provision of the criminal code.

Edited March 4 by Mudguard
maybe the immunity case has this charge, but I'm not sure. just checked, and they didn't charge Trump with insurrection

[Many-Faced Votary]

10 minutes ago, Gorn said:

Trump wasn't convicted under 18 U.S. Code § 2383, at least so far.

18 U.S. Code § 2383 was passed during the Civil War, prior to the Fourteenth Amendment. It is not a mode of enforcement; it was written, in historical context, as a precursor to Section III of the Fourteenth Amendment.

The sheer notion that a Constitutional Amendment requires separate enforcement is itself enough to change it from the supreme law of the land to something constrained by politics and bound by political will. Saying that Section III is not self-executing is already enough to make it meaningless, which is what the five justices in the majority wanted.

By the way, the Trump v. Anderson ruling is so sweeping that it invites arguments that the Department of Justice filing suit on that law would not disqualify Trump from federal office. Make no mistake, this will be the first thing argued in such circumstances, as SCOTUS fully expected. Instead, he will have to be explicitly barred by Congress to pass muster.

I also question the thinking that the most feckless Attorney-General in the history of the country will actually attempt to convict Trump of insurrection.

[Mudguard]

58 minutes ago, Many-Faced Votary said:

18 U.S. Code § 2383 was passed during the Civil War, prior to the Fourteenth Amendment. It is not a mode of enforcement; it was written, in historical context, as a precursor to Section III of the Fourteenth Amendment.

The sheer notion that a Constitutional Amendment requires separate enforcement is itself enough to change it from the supreme law of the land to something constrained by politics and bound by political will. Saying that Section III is not self-executing is already enough to make it meaningless, which is what the five justices in the majority wanted.

By the way, the Trump v. Anderson ruling is so sweeping that it invites arguments that the Department of Justice filing suit on that law would not disqualify Trump from federal office. Make no mistake, this will be the first thing argued in such circumstances, as SCOTUS fully expected. Instead, he will have to be explicitly barred by Congress to pass muster.

I also question the thinking that the most feckless Attorney-General in the history of the country will actually attempt to convict Trump of insurrection.

I didn't get this impression from reading the opinion.  Conviction under 2383 would bar Trump from from holding office, and this was even conceded by Trump's attorney's during oral argument, with the caveat that Trump's attorney claimed that Trump was immune from prosecution.  So depending on what happens in the parallel immunity case, Trump could still be blocked from holding office under 2383 if the SC rules against his immunity claim.

Unfortunately, the charge was not brought, so this is a moot point.  Also, Garland appointed Jack Smith as special counsel, and from all indications, Smith has had full discretion and authority to bring the insurrection charge under 2383, but presumably felt like the case wasn't strong enough to his standards.

[Kalbear]

1 hour ago, Gorn said:

The Trump v. Anderson decision even specifically refers to this law as an example in two places. Meaning there is no need for additional laws to be passed.

Just to be clear this is not correct - or at least, was not correct until this morning. Now, what it means is that unless Trump (or anyone else) is convicted of that specific charge, they will be perfectly eligible to have office at any Federal level. And the only ways to make them ineligible outside of that is if congress passes additional laws to ban that specific action. And that's assuming that it would hold up, because that law does not mention the 14th amendment explicitly. 

That is not how many people interpreted the 14th amendment (specifically note that the 14th does not explicitly mention that someone need be convicted of a crime or that even a crime was committed), and it was also not something that was asked about in this trial. The trial was whether or not a state can restrict someone running at the federal level, not how the federal level should be enforced or any test for it. 

I guess at the end of the day this just cuts out a middle step that we were likely going to hit in November anyway, so maybe that's good? But it's also another shitting on the standards and practices by this court, making something explicit that wasn't asked and extending their power and reach whenever it suits them. 

[kissdbyfire]

4 minutes ago, Mudguard said:

I didn't get this impression from reading the opinion.  Conviction under 2383 would bar Trump from from holding office, and this was even conceded by Trump's attorney's during oral argument, with the caveat that Trump's attorney claimed that Trump was immune from prosecution.  So depending on what happens in the parallel immunity case, Trump could still be blocked from holding office under 2383 if the SC rules against his immunity claim.

Unfortunately, the charge was not brought, so this is a moot point.  Also, Garland appointed Jack Smith as special counsel, and from all indications, Smith has had full discretion and authority to bring the insurrection charge under 2383, but presumably felt like the case wasn't strong enough to his standards.

He did appoint Smith, only one year later than he should have. 
And I have no way of knowing whether this is true, but I’ve heard more than one legal analyst say he only appointed Smith when Trump announced he was going to run for president, and they said that indicates Garland wouldn’t have done much at all if Trump decided not to run. And if true, that is outrageous and further evidence that Trump was and is receiving special treatment. 
Oh and btw, the same legal analysts said Smith left insurrection out not b/c the case wasn’t strong enough but rather to try and make it more straightforward and quicker. That “quicker” bit has already backfired since all legal voices speaking including super conservative ones said SCOTUS shouldn’t have taken it, that they should have let the court of appeals ruling stand. 
 

[Mudguard]

27 minutes ago, kissdbyfire said:

He did appoint Smith, only one year later than he should have. 
And I have no way of knowing whether this is true, but I’ve heard more than one legal analyst say he only appointed Smith when Trump announced he was going to run for president, and they said that indicates Garland wouldn’t have done much at all if Trump decided not to run. And if true, that is outrageous and further evidence that Trump was and is receiving special treatment. 
Oh and btw, the same legal analysts said Smith left insurrection out not b/c the case wasn’t strong enough but rather to try and make it more straightforward and quicker. That “quicker” bit has already backfired since all legal voices speaking including super conservative ones said SCOTUS shouldn’t have taken it, that they should have let the court of appeals ruling stand. 
 

I can believe that Garland wouldn't have appointed Smith if Trump didn't run. 

But I don't buy the idea that Smith didn't bring the insurrection charge because he wanted to streamline the case.  A lot of the facts for the charges he did file concern the events of Jan 6th, so there's already a large overlap between the insurrection charge and the other charges he filed.  I think part of the problem is that there is so little caselaw around this charge, in addition to the elements of insurrection not being well defined, that he would need overwhelming evidence of insurrection before he would feel confident enough to bring a charge.  And I don't think the evidence is close to overwhelming.  It's certainly arguable, but that's a long way from a very strong case.

[A Horse Named Stranger]

Whether you believe it or not. But most legal commentators say, that the insurrection charges/case would've been much more complicated and time consuming than the more streamlined one Smith filed. Closest he comes is iirc Interfering with an official procedure [counting of the votes].

Willis RICO case in Georgia is closer to what an insurrection indictment for Smith would've looked like. You can see how long Willis needed to file charges (with a lot of commentators getting impatient with her handling of the case). And she had a headstart over Smith.

Had Garland appointed him on day 1, he might have tried to file the more ambitious insurrection case. Would've, could've, should've. But we are, where we are. And Rod knows what the supremes would've said to an insurreciton charge.

[Mudguard]

2 hours ago, A Horse Named Stranger said:

Whether you believe it or not. But most legal commentators say, that the insurrection charges/case would've been much more complicated and time consuming than the more streamlined one Smith filed. Closest he comes is iirc Interfering with an official procedure [counting of the votes].

Willis RICO case in Georgia is closer to what an insurrection indictment for Smith would've looked like. You can see how long Willis needed to file charges (with a lot of commentators getting impatient with her handling of the case). And she had a headstart over Smith.

Had Garland appointed him on day 1, he might have tried to file the more ambitious insurrection case. Would've, could've, should've. But we are, where we are. And Rod knows what the supremes would've said to an insurreciton charge.

Take what you hear from legal commentators with a grain of salt.  Most of them recently thought that the SC wouldn't take up the immunity case, and they were all wrong.  Unless Smith has publicly commented on his reasoning for not filing a charge on insurrection, or the analyst claims to have inside information on internal deliberations, it's pure speculation.

Also, plenty of other commentators believe the reason was tied to the difficulty of proving the allegation.  For example, from the NYT:

https://www.nytimes.com/2023/08/04/us/politics/trump-indictment-jack-smith-charges.html

Quote

That choice dovetails with Mr. Smith’s decision not to charge Mr. Trump with inciting an insurrection or seditious conspiracy — potential charges the House committee recommended. By eschewing them, he avoided having the case focus on the inflammatory but occasionally ambiguous remarks Mr. Trump made to his supporters as they morphed into a mob, avoiding tough First Amendment objections that defense lawyers could raise.

 

[kissdbyfire]

4 minutes ago, Mudguard said:

Take what you hear from legal commentators with a grain of salt.  Most of them recently thought that the SC wouldn't take up the immunity case, and they were all wrong. 
 

Yeah, they were wrong. But my understanding is that their assumptions were based on how good and thorough the court of appeals ruling was. They weren’t guessing blindly; their argument, as they explained it, was based on how it’s supposed to work irt SCOTUS a) deciding to take a case and b) overturning a lower court’s decision etc. So they were wrong b/c they expected a very political court w/ corruption issues to rule based on the law instead of based on politics. 

4 minutes ago, Mudguard said:

Unless Smith has publicly commented on his reasoning for not filing a charge on insurrection, or the analyst claims to have inside information on internal deliberations, it's pure speculation.

Also, plenty of other commentators believe the reason was tied to the difficulty of proving the allegation.  For example, from the NYT:

https://www.nytimes.com/2023/08/04/us/politics/trump-indictment-jack-smith-charges.html

 

I can’t read it b/c of the paywall, so I don’t know what else is in the article. But even the quote above doesn’t make it clear that the case was not strong enough to be filed. It talks of avoiding have the focus of the case be on “inflammatory and occasionally ambiguous” things Trump said. That alone doesn’t suggest that the case was too difficult, but it does imply that it would be harder and take longer. Just my 2p of course.

[Mudguard]

2 minutes ago, kissdbyfire said:

Yeah, they were wrong. But my understanding is that their assumptions were based on how good and thorough the court of appeals ruling was. They weren’t guessing blindly; their argument, as they explained it, was based on how it’s supposed to work irt SCOTUS a) deciding to take a case and b) overturning a lower court’s decision etc. So they were wrong b/c they expected a very political court w/ corruption issues to rule based on the law instead of based on politics. 

I can’t read it b/c of the paywall, so I don’t know what else is in the article. But even the quote above doesn’t make it clear that the case was not strong enough to be filed. It talks of avoiding have the focus of the case be on “inflammatory and occasionally ambiguous” things Trump said. That alone doesn’t suggest that the case was too difficult, but it does imply that it would be harder and take longer. Just my 2p of course.

Dropping a charge of course simplifies the case, but I haven't seen a good explanation why the insurrection charge is more complicated to prove than the other charges.  What are the elements in proving an insurrection charge that makes it so complicated?  Can you cite something that supports this view? 

All the analysis of the public evidence that I've seen suggests that the evidence has ambiguities that a defense could use to support their case.  The public speech Trump made wasn't going to be enough.  Smith needed additional evidence that Trump wanted that mob to storm the capital and disrupt the proceedings.  As far as I'm aware, there wasn't any smoking gun found.  If Smith had that type of evidence, the case would be a slam dunk and I really doubt he would omit the insurrection charge.  Even if the additional charge would lengthen the trial by a week or two, and that's very generous given the overlapping facts, that wasn't going to make or break the timing.

[SpaceChampion]

 

Dude probably has walked right through Mar-a-lago several times.

[Gorn]

16 hours ago, Kalbear said:

Just to be clear this is not correct - or at least, was not correct until this morning. Now, what it means is that unless Trump (or anyone else) is convicted of that specific charge, they will be perfectly eligible to have office at any Federal level. And the only ways to make them ineligible outside of that is if congress passes additional laws to ban that specific action. And that's assuming that it would hold up, because that law does not mention the 14th amendment explicitly. 

That is not how many people interpreted the 14th amendment (specifically note that the 14th does not explicitly mention that someone need be convicted of a crime or that even a crime was committed), and it was also not something that was asked about in this trial. The trial was whether or not a state can restrict someone running at the federal level, not how the federal level should be enforced or any test for it. 

I guess at the end of the day this just cuts out a middle step that we were likely going to hit in November anyway, so maybe that's good? But it's also another shitting on the standards and practices by this court, making something explicit that wasn't asked and extending their power and reach whenever it suits them. 

This is bigger than Trump as a candidate or this election, and these things should be defined narrowly rather than broadly.

Depriving someone of their civil rights is a big fucking deal, and it should be done through due legal process in court. The alternative would at some point lead to some Republican appointee banning a Democratic candidate from ballot based on their personal nebulous interpretation of the word "insurrection".

[A Horse Named Stranger]

12 hours ago, Mudguard said:

Dropping a charge of course simplifies the case, but I haven't seen a good explanation why the insurrection charge is more complicated to prove than the other charges.  What are the elements in proving an insurrection charge that makes it so complicated?  Can you cite something that supports this view? 

All the analysis of the public evidence that I've seen suggests that the evidence has ambiguities that a defense could use to support their case.  The public speech Trump made wasn't going to be enough.  Smith needed additional evidence that Trump wanted that mob to storm the capital and disrupt the proceedings.  As far as I'm aware, there wasn't any smoking gun found.  If Smith had that type of evidence, the case would be a slam dunk and I really doubt he would omit the insurrection charge.  Even if the additional charge would lengthen the trial by a week or two, and that's very generous given the overlapping facts, that wasn't going to make or break the timing.

The article you quoted gives one issue. Free speech (esp. political kind) is extremely highly protected in the US (arguably overprotected, but that's another topic for another day). Smith also presumably would've needed to actually charge a few of the (yet!) unindicted conconspirators, you can see the hassle it causes Willis in GA. Smith aim was to get a conviction before a General Election, which he still might get btw.* despite the supremes best/worst efforts. If he pulls it off power to him, and I will grant him the honory title of horse.

*I saw the other day, that the Smith is prepared to push forward with the trial despite being close to the election, because his office is arguing, that they are not bringing up new charges, but rather see through a running legal process (thus not a violation of DOJ policy). Chutkan is apparently onboard with that idea and has already cancelled her European vacation plans, so she'd be available. How much time she gives Orange doofus to prepare is within her discretion. She said 80 days (?) or something like that (as she did not account for the supremes intervention). There's nothing stopping her from shortening that a bit, so the trial can go forward. A lot of that is obviously speculation. But Smith is not Garland and has thus far displayed the spine of a horse.

[Kalbear]

1 hour ago, Gorn said:

This is bigger than Trump as a candidate or this election, and these things should be defined narrowly rather than broadly.

Depriving someone of their civil rights is a big fucking deal, and it should be done through due legal process in court. The alternative would at some point lead to some Republican appointee banning a Democratic candidate from ballot based on their personal nebulous interpretation of the word "insurrection".

You're arguing something no one is arguing for. The problem is specifying that congress must pass a law banning someone or someones. That is far more restrictive and specific, and among other things also removes any legal representation potentially - there is nothing saying that congress can't pass a law banning one specific person, for instance.

But it also means that, say, the justice department cannot be used as a way to determine this either. It means it can't be decided by a jury unless congress says so. 

Mostly, it has nothing to do with the actual case in front of scotus - do you really want scotus to routinely decide how congress should do their business based on cases that aren't relevant to that?

[LongRider]

14 hours ago, Mudguard said:

Take what you hear from legal commentators with a grain of salt.

Agree 

[Mudguard]

2 hours ago, A Horse Named Stranger said:

The article you quoted gives one issue. Free speech (esp. political kind) is extremely highly protected in the US (arguably overprotected, but that's another topic for another day). Smith also presumably would've needed to actually charge a few of the (yet!) unindicted conconspirators, you can see the hassle it causes Willis in GA. Smith aim was to get a conviction before a General Election, which he still might get btw.* despite the supremes best/worst efforts. If he pulls it off power to him, and I will grant him the honory title of horse.

*I saw the other day, that the Smith is prepared to push forward with the trial despite being close to the election, because his office is arguing, that they are not bringing up new charges, but rather see through a running legal process (thus not a violation of DOJ policy). Chutkan is apparently onboard with that idea and has already cancelled her European vacation plans, so she'd be available. How much time she gives Orange doofus to prepare is within her discretion. She said 80 days (?) or something like that (as she did not account for the supremes intervention). There's nothing stopping her from shortening that a bit, so the trial can go forward. A lot of that is obviously speculation. But Smith is not Garland and has thus far displayed the spine of a horse.

Yeah, Smith appears to be a very meticulous and aggressive prosecutor, which is another reason I doubt he would have dropped a charge that he felt confident that he could prove.  Smith is throwing the book at Trump.  Also, the insurrection charge under 18 USC 2383 is probably the only charge that would disqualify Trump from holding office.  Even if Trump is convicted on all the other charges, he can still hold office, and if he wins, presumably could pardon himself from jail.  No way he would drop such a consequential charge if he had the ability to prove it.

Also, from what I understand, no one has been charged under section 2383.  None of the rioters that have been sent to jail, and there have been dozens if not hundreds of them, have been charged for insurrection.  Why not?  There isn't the same time pressures for these defendants.  It's because proving insurrection on these facts is not the slam dunk that people think it is.  

[Kalbear]

Not exactly shocking, but also I don't understand her strategy at all - Sinema announces her retirement from the senate:

https://www.cnn.com/2024/03/05/politics/kyrsten-sinema-announces-retirement/index.html

I can only assume she desperately believed in some third way and grouping of people that didn't exist that would come to support her, or she's just that much into lobbyists.