Ruling citing Engaging in Insurrection
Arne in an earlier post this morning commented;
“The ruling by Judge Wallace in Colorado that trump engaged in insurrection has not been discussed in another posting yet. If he is legally the instigator, is he guilty of manslaughter?”
A Colorado judge on Friday (17 November) found that former President Donald Trump engaged in insurrection during the Jan. 6, 2021, attack on the U.S. Capitol but rejected an effort to keep him off the state’s primary ballot because it’s unclear whether a Civil War-era Constitutional amendment barring insurrectionists from public office applies to the presidency. NPR
Also referenced by Arne; commentary by Carissa Byrne Hessick at LawFare . . .
“When the news broke that people had been killed during the Capitol riot on Jan. 6, commentators began speculating that at least some of the pro-Trump rioters could be charged with murder and in particular, felony murder. The felony murder rule is a complicated legal doctrine that can result in a murder conviction for people who did not intend to kill and for people who did not personally cause anyone’s death. Though the facts of precisely what happened at the Capitol are still coming to light, it seems likely that prosecutors could file felony murder charges against at least some of the rioters.”
Since trump was found to have engaged in an insurrection by the Colorado judge and more than likely incited it.
Should Trump be charged with murder?
Probably not. It would require proof beyond a reasonable doubt which was probably not used in the Colorado case and Trump was careful in his statements at the time to tell everyone to be peaceful.
ETA: He hasn’t been specifically charged criminally with insurrection in the D.C. case although he has been charged with federal felonies. There would be an argument about whether they included danger of grave bodily harm which seems to be required under the federal felony-murder rule.
Jack:
Nobody died or was injured? What was his intent then? Blow off some steam?
Bill,
I didn’t say no-one died or was injured only that he did not directly urge or order that and was careful to clothe his incendiary speech with cautions to “peacefully” protest. When everything turned violent, he didn’t try to stop it but also didn’t encourage it. He just sat and enjoyed watching it on TV.
eta:Under federal law the predicate felony has to, itself, involve the likelihood of death or serious injury. The fact that one happens, in and of itself, is not sufficient. An example is one of the charges was obstructing an official government act. That is not as fraught with dangerous consequences as would a charge of insurrection be. I am simply speculating as to what kinds of arguments would surface if Trump were charged with felony murder under federal law.
Jack:
In his speech to the crowd which eventually attacked the Capitol, trump did use such words as fight like hell besides fight and fighting 20 times in his 11-thousand word speech. In the end and only once and for a few seconds did he tell the crowd to peacefully protest and make your voices heard. Once “peacefully” after 20 times of fight, fighting, and fight like hell. Rep. Madeleine Dean . . .
WATCH: Trump used ‘fight’ or ‘fighting’ 20 times in rally speech
Watch Dean’s remarks in the player above.
Rep. Madeleine Dean said that one of Trump’s key defenses is that he says during his speech: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
But Dean said that was a “few seconds” in a nearly 11,000-word speech and that it was the “only time President Trump used the word peaceful or any suggestion of nonviolence.” She said that wasn’t the overarching message.
She said, “President Trump used the word ‘fight’ or ‘fighting’ 20 times, including telling the crowd they needed to ‘fight like hell.’”
Choking back emotion, she said, “So they came, draped in Trump’s flag, and used our flag, the American flag, to batter and to bludgeon. And at 2:30, I heard that terrifying banging on House chamber doors. For the first time in more than 200 years, the seat of our government was ransacked on our watch.”
Bill,
You’re making an argument for charging him with insurrection as opposed to felony murder based on a Colorado court’s finding that he’s barred by the 14th Amendment for having participated in an insurrection as originally proposed. Currently, he’s not criminally charged with insurrection. Charging him with felony murder under the federal statute would require him to be proven beyond reasonable doubt with participating in an insurrection which ultimately resulted in a death. I’m saying that would be hard to get a conviction, in my opinion. I agree that he was covering his ass with the statements in question but it would probably be enough to keep a jury from convicting him.
Jack:
Ok, once again your legal knowledge usurps my knowledge. Is this not like recklessness in the sense of death dues to carelessness? It would come on top of insurrection. Another thought.
Yes, I agree on this:
Seems pretty doubtful. He wasn’t a rioter, which seems to be a circumstance of importance to the LawFare author. Murder would be a DC charge, and since they’ve made no effort to charge even incitement, jumping to murder feels implausible. Further, I’m pretty confident that a true judicial proceeding centered on the death of Ashli Babbit is not interesting to the hypothetical prosecutors in a Trump murder case and she is the only mortal victim on that day. Others died, but from personal medical events. Officer Sicknick died the following day of a stroke, not from a beating with a fire extinguisher as first thought.
Eric:
Why the hell would you attempt to lay a foundation for insurrectionists who invaded a Congressional hearing determining the election of a new president?
Secondly, you have no basis in which to determine whether a beating on the head of an officer would or would not cause a stroke leading to the death of the officer. Your reach on the topic goes too far a reach in speculation. Trauma to the head can indeed be the cause of a stroke leading to death.
Does trump care about Eric or anyone else besides himself? Hmmmmmmmmm . . .
It is true I have no such expertise, but the DC Medical Examiner performed an autopsy and issued findings of natural cause death. The finding of his causes of death did not include trauma. His death has resulted in no charges of any degree of homicide against anyone, even though at least 2 were charged in assault against him. Unquestionably Ashli Babbitt’s death was the only actual homicide. An officer pointed a firearm at her, fired it and the bullet killed her. This has also been looked at and found as a justified homicide, but is the only homicide available. I take it a kind of confirmation of my assessment that interest in processing charges against anyone concerning her death probably are not interesting to notional prosecutors of any Trump felony murder case. You clearly bring in a non-homicide, accepted as such by DC authorities, federal authorities, the Capitol police and I take that as at least a strong hint you don’t want to discuss Babbitt, whose death all the same accept was homicide. Just betting prosecutors don’t wish to either.
Eric:
Would he still be alive if not attacked? The DC Examiner said more than just natural causes.
Man who assaulted Capitol Police officer Sicknick sentenced to 80 months in prison | Reuters
In your eyes, it is ok to assault a police officer and if he or she dies, it is the result of natural causes . . .
As yet to successfully prosecute on any other alleged activity
This strikes me as wishful thinking …
It was a somewhat screwy ruling by the judge, IMO.
But then, ‘Who will dare to bell the cat?’, as in that wonderful old Aesop fable.
To state that Trump incited the insurrection, and to then allow him on to the Colorado ballot seems to be wrong. But maybe there’s some legal logic to this, given that Trump has not actually been indicted for the offense.
Maybe the state will file an appeal, get the decision overturned.
The easy way for this to go away is for the decision to be allowed to stand, and for Trump to get away with what he did. It’d certainly please Trump.
The ruling was guaranteed to be appealed. If the judge was trying to accomplish something, putting on the record that trump engaged in insurrection seems like a savvy ruling.
This is a very risky tactic, particularly where Trump is highly unlikely to win. If Trump otherwise would win Colorado, good bet Biden loses anyway (if it’s Biden running). Farfetched Trump wins Colorado but not at all farfetched that Republicans in the House reject Colorado’s electoral votes in that circumstance. If the keep their majority, that’s a net win for Trump. Get it done on an “all-states” basis or don’t try. Don’t try feels wiser.
No party is going to accept that their candidate is disqualified in one or a few states if that behavior is not disqualifying in the rest. If that party is in majority in the next House, watch out if they are asked to approve electoral votes on that basis. To take steps to plunge your own expected electoral votes in controversy would be nuts. I don’t know the plaintiffs on Colorado, but the Democratic Party of Colorado ought to be all over this to reject these efforts.
It might be interesting to learn on what basis you think “Republicans in the House reject Colorado’s electoral votes in that circumstance”, since it’s up to the Electoral College to accept whatever Colorado voters decide.
Fred:
Yes and it is the House and the Senate which counts the Electoral vote on the 6th of January.
The Counting of the Electoral Votes is in effect a ritual.
As has been made abundantly clear. The VP simply signs off on the decision made by the Electoral College. Do you think that will change in Jan 2025?
Now, if no decision is made by the Elecoral College due to ‘lack of a majority of Electoral Votes’, then the House will choose the President, and the Senate also (for VP). In that way the Congress ‘weighs in’.
That’s a GOP backup strategy.
The Certification of the Electoral Vote Count that happens on Jan 6 is in effect a ritual.
Arne:
Since the judge did so, I believe the intent was to kick it up to a higher court for both issues.
The basis will be simply that their candidate was kept off the ballot. That’s it. House Republicans will not accept that slate of electors. If they are majority, likely they will not vote on another slate, just leave Colorado without EVs this time. Court will eventually say “this is a Congressional matter”, which it is actually. Would it change the winner or force it into the House for resolution? Better never to find out and this ruling supports that.
Some Reading for when the House and Senate meet to count the Electoral Votes. The procedures; “3 U.S. Code § 15 – Counting electoral votes in Congress | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)“
t is more than just the House deciding.
My original points are still valid, namely such a move in a state where a given party has a good expectation of winning is risky because if Colorado stands alone (or even with a small number of other states, Republicans won’t sign off on their validity in Congress. It may be a “ritual” but if there are more Republican “priests” than Democrats, Colorado will be expelled from the rites. So Democrats should not be in favor of this for their own political interests. If there is a manner to prevent Trump from ballots everywhere, that is less politically risky than having controversy surrounding EVs that your party is going to win. Does anyone here think it plausible that Trump would win Colorado otherwise in an election Biden still wins? Because that is the ‘well it’s worth doing and really isn’t any risk’ scenario. Maybe the plaintiffs are Trump supporters. In any case the ruling was he stays on the ballot.
Is this the last time Congress tried to interfere with Presidential election results?
11 times VP Biden was interrupted during Trump’s electoral vote certification
CNN – January 6, 2017
(Interesting details at the link.)
Since this session will be conducted in 2025 before the inauguration of the next President, VP Harris will preside. Perhaps the results will be different this time, if Dem Senators sign on to complaints by Dem Representatives. Or if the complaints are from the other party. That seems to have been the sticking point in 2017.
I have not read the complete Wallace opinion (I apologize for that), but what I have seen is that in spite of Trump’s determined insurrectionist activity, it depended on a determination that the Presidency was not considered an “office” of the U.S. under the wording of Const. 14-3. While there is ambiguity in the wording, it’s hard to believe that the Founders intended to exclude the Presidency as an office of the U.S.
However, despite that interpretation, 14-3 says, “No person (no question Trump is a person)… SHALL… hold any office, civil or MILITARY, under the United States, [if they] “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof…”
Two additional interpretations are necessary here to exempt Trump from 14-3. (1) there would need to be an additional interpretation that the “Commander In Chief” of the military is NOT an “office of the U.S.”; and, (2) that Trump did not give “aid or comfort to enemies” to such “enemies” as Proud Boys, et al who have already been convicted and are serving time for “seditious conspiracy” and therefore, there can be no confusion that they are “enemies” of the U.S. It’s pretty obvious that Trump provided “aid or comfort” which has a long history of legal interpretation.
Aside from all that legal crap, shouldn’t there be a moral rejection of a lying (election denial), criminal (91 indictments), rapist (court determined), who no question tried to overthrow a free & fair election (61 legal determinations) for running for President of the United States?
How can any religious leader preach anything to their flock but disgust and moral decay with respect to Donald Trump and his possible ascent to the Presidency once again? One has to question any religion or diocese that doesn’t recognize these evils.
*that would be “religion” not region
fixed
Bill maybe you can fix the “resurrectionist” one also. Caught by Jackd below. Duh, that would be “insurrectionist.”
J.P.
Fixed this morning.
I realize “resurrectionist” was a typo but a surprisingly accurate term in the context of Trump’s post election situation.
Good catch… I didn’t even see it. Interesting twist of words.
Jack:
That is true . . .
I believe what is supposed to happen on Jan 6 after Presidential elections the previous year is arguably the paramount moment when the US demonstrates how ‘Peaceful transfer of power’ is conducted in our country. It could be that in 2025, this will be the last opportunity to do so.
And, obviously, when disruptions occur, now from either party, you need look no further back, when the Dems ‘misbehaved’ after Trump’s election. Shame on them! (Not really, given what happened previously in the Bush/Gore debacle of 2000, and then the screwy surprises in the Great Lakes states in 2016.)
(See above.)
11 times VP Biden was interrupted during Trump’s electoral vote certification
CNN – January 6, 2017
However, ‘When yer right, yer right!’ as the saying goes.