Believing J6 Myths

Tom Jackman, Scott Clement, Emily Guskin and Spencer S. Hsu at WP:

Twenty-five percent of Americans say it is “probably” or “definitely” true that the FBI instigated the Jan. 6, 2021, attack on the U.S. Capitol, a false concept promoted by right-wing media and repeatedly denied by federal law enforcement, according to a new Washington Post-University of Maryland poll.

The Post-UMD poll finds a smaller 11 percent of the public overall thinks there is “solid evidence” that FBI operatives organized and encouraged the attack, while 13 percent say this is their “suspicion only.”

Among Republicans, 34 percent say the FBI organized and encouraged the insurrection, compared with 30 percent of independents and 13 percent of Democrats.

The results confirm that misinformation about Jan. 6 is widespread as the United States heads into a presidential election year, during a campaign in which the former president and leading 2024 Republican candidate Donald Trump has repeatedly expressed support for those who participated in the insurrection. Despite a detailed congressional investigation and more than 725 completed federal prosecutions of Jan. 6 participants that did not yield evidence of FBI involvement, a substantial minority of Americans still embrace conspiracy theories not unlike the ones that drove many rioters to storm the Capitol three years ago.


“The people that went there to express their views, to support Trump, were peaceful,” said Richard Baum, 61, an independent voter from Odessa, Tex. “The government implants were the violent ones: the FBI, the police people that were put in there, the antifa and BLM hired by George Soros; everybody knows that.”

The Post-UMD poll finds 39 percent of Americans who say Fox News is their primary news source believe the FBI organized and encouraged the Jan. 6 attack, compared with 16 percent of CNN or MSNBC viewers and 13 percent who get most of their news from ABC, CBS or NBC. The poll finds 44 percent of those who voted for Trump say the FBI instigated the attack.

Liz Cheney on Oaths

Many posts have discussed oaths of office.

Liz Cheney, Oath and Honor: A Memoir and a Warning (New York: Little, Brown, 2023), 49.

  In Article VI of our Constitution, the founders required that every member of Congress, all state legislators, and “all executive and judicial officers” of the federal and state governments take an oath to support and defend the United States Constitution. For elected representatives, the oath must supersede any duty to represent their constituents. They must represent constituents’ interests solely in a manner that complies with their representatives’ paramount duty to the Constitution.

The president’s oath is arguably the most consequential. The president has tremendous power to enforce his will—not only as our commander in chief, but as the constitutional officer who can command the actions of critical executive branch agencies. The founders had utmost confidence inthe wisdom and grace of George Washington. But they were not convinced that every future president would be so honorable. This is why Article II of our Constitution details precisely what the president must pledge: to“faithfully execute the Office of President of the United States” and to“preserve, protect and defend the Constitution of the United States.”Under our Constitution, the president is selected by a separately organized group of Americans, called Electors, chosen nowadays through popular election in each state. The founders were concerned that a faction in Congress might conspire to control the selection of a president. They granted Congress what is, in most circumstances, only a ministerial role: counting the electoral votes that have been certified and transmitted to Washington by the individual states. As Alexander Hamilton explained in Federalist 68, “No senator, representative, or other person holding a place of trust or profit under the United States” can serve as a member of the Electoral College.

She had written a speech against the effort to stop the count.  Because of the insurrection, she never gave it on the floor, but presents it in the book (86-87):

Our oaths are not given to any specific president. They are given to preserve the Constitutional structure that has governed our republic for over 230 years. The oath does not bend or yield to popular sentiment, mob rule, or political threats. We do not compromise our oath. It compels us to adhere to the Constitution and rule of law… always.

 

Original Meaning of the Disqualification Clause

Steven Portnoy at ABC:

In 2024, the originalists on the Supreme Court will likely seek to determine whether the ratifiers could have had it in mind 158 years ago that Sec. 3 might not only be applied to the "late insurrection," as the House-passed version originally had it, but also to any other rebellion that might later take place.

But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds.

"This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.

It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

J6 Was an Insurrection

 The Colorado Supreme Court ruled that, under section 3 of the 14th Amendment, Trump is ineligible to be on the Colorado presidential primary ballot.  

Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes ofSection Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country. 100 The required force or threat of force need not involve bloodshed, nor must the dimensions of the effort be so substantial as to ensure probable success. In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894). Moreover, although those involved must act in a concerted way, they need not be highly organized at the insurrection’s inception. See Home Ins. Co. of N.Y. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954) (“[A]t its inception an insurrection may be a pretty loosely organized affair. . . . It may start as a sudden surprise attack upon the civil authorities of a community with incidental destruction of property by fire or pillage, even before the military forces of the constituted government have been alerted and mobilized into action to suppress the insurrection.”). 

¶185 The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection. 

¶186 It is undisputed that a large group of people forcibly entered the Capitol and that this action was so formidable that the law enforcement officers onsite could not control it. Moreover, contrary to President Trump’s assertion that no evidence 101 in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—thatthe mob was armed with a wide array of weapons. See Anderson, ¶ 155. The court also found that many in the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers’ batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol. Id. at ¶¶ 156–57. The fact that actual and threatened force was usedthat day cannot reasonably be denied. 

¶187 Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose . . . . They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” Id. at ¶ 243. And upon breaching the Capitol, the mob immediately pursued its intended target—the certification of the presidential election—and reached the House and Senate chambers within minutes of entering the building. Id. at ¶ 153. 102 

¶188 Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. Id. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire—which included threats of physical violence—was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. Id. at ¶¶ 163, 179–80; see U.S. Const. art. I, § 3, cl. 4; id. at art. II, § 1, cl. 3. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties. Anderson, ¶¶ 148, 170, 172–73. ¶189 In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable 103 definition, this constituted an insurrection, and thus we will proceed to consider whether President Trump “engaged in” this insurrection. 

Pence's Oath

Many posts have discussed oaths of office.

Katherine Faulders, Mike Levine, and Alexander Mallin at ABC:

Speaking with special counsel Jack Smith's team earlier this year, former Vice President Mike Pence offered harrowing details about how, in the wake of the 2020 presidential election, then-President Donald Trump surrounded himself with "crank" attorneys, espoused "un-American" legal theories, and almost pushed the country toward a "constitutional crisis," according to sources familiar with what Pence told investigators.

...

"Not feeling like I should attend electoral count," Pence wrote in his notes in late December. "Too many questions, too many doubts, too hurtful to my friend. Therefore I'm not going to participate in certification of election."

Then, sitting across the table from his son, a Marine, while on vacation in Colorado, his son said to him, "Dad, you took the same oath I took" -- it was "an oath to support and defend the Constitution," Pence recalled to Smith's investigators, sources said.

That's when Pence decided he would be at the Capitol on Jan. 6 after all, according to the sources.

The Presidential Oath and Supporting the Constitution

Asha Rangappa:

You often think that you have heard it all from Trump, or his lawyers, and then you realize you actually haven’t. A lawsuit filed in Colorado challenging Trump’s eligibility to be on the state’s presidential ballot under the Fourteenth Amendment goes to trial on October 30. The case centers around whether the events of January 6 constitute an “insurrection” for purposes of Section 3 of the amendment, which states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

But Trump’s lawyers are arguing that Section 3 doesn’t apply to Trump, because the presidential oath of office only required him to “protect, preserve, and defend” the Constitution, not “support” it. To quote the movie Dodgeball, it’s a bold strategy, Donnie, let’s see how this plays out.

The argument that Section 3 doesn’t apply to the president has been made before, but typically it’s focused on whether the President is an “officer” for purposes of the amendment, not the wording of the presidential oath. The lawyers who argue that he isn’t an “officer” are in the minority; most constitutional scholars agree that the President is covered by the amendment. As far as the semantic argument, it seems like an uphill battle to me to argue that “protecting,” “preserving,” and “defending” are not forms of “support.” It would be also be absurd to suggest that the President could not support the Constitution and not be in violation of his oath (or, conversely, that he has license to not support it…what?).

Milley on the Oath

Many posts have discussed oaths .

Eric Bazail-Eimil at Politico:

Gen. Mark Milley used his final speech as Joint Chiefs chair on Friday to emphasize that troops take an oath to the Constitution and not to a “wannabe dictator,” days after former President Donald Trump suggested the nation’s top officer should be put to death.

In an impassioned speech during his retirement ceremony at Joint Base Myer-Henderson Hall in Arlington, Va., Milley spoke of the continued bravery of American service members and underscored that the oath they take to protect the Constitution encompasses “all enemies, foreign and domestic,” emphasizing “all” and “and.”

“We don’t take an oath to a king, or a queen, or to a tyrant or dictator, and we don’t take an oath to a wannabe dictator,” Milley said. “We don’t take an oath to an individual. We take an oath to the Constitution, and we take an oath to the idea that is America, and we’re willing to die to protect it.”

“Every soldier, sailor, airman, Marine, guardian and Coast Guardsman, each of us commits our very life to protect and defend that document, regardless of personal price,” Milley continued. “And we are not easily intimidated.”

The Trump campaign did not immediately return a request for comment.

RICO

 James C. McKinley Jr. at NYT:

At the heart of the indictment against Mr. Trump and his allies in Georgia are racketeering charges under the state Racketeering Influenced and Corrupt Organizations Act, or RICO.

Like the federal law on which it is based, the state RICO law was originally designed to dismantle organized crime groups, but over the years it has come to be used to prosecute other crimes, from white collar Ponzi and embezzlement schemes to public corruption cases.

It’s a powerful law enforcement tool. The Georgia RICO statute allows prosecutors to bundle together what may seem to be unrelated crimes committed by a host of different people if those crimes are perceived to be in support of a common objective.

“It allows a prosecutor to go after the head of an organization, loosely defined, without having to prove that that head directly engaged in a conspiracy or any acts that violated state law,” Michael Mears, a law professor at John Marshall Law School in Atlanta. “If you are a prosecutor, it’s a gold mine. If you are a defense attorney, it’s a nightmare.”

Prosecutors need only show “a pattern of racketeering activity,” which means crimes that all were used to further the objectives of a corrupt enterprise. And the bar is fairly low. The Georgia courts have concluded that a pattern consists of at least two acts of racketeering activity within a four-year period in furtherance of one or more schemes that have the same or similar intent.

Section Three

  Adam Liptak at NYT:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”

 The Sweep and Force of Section Three

University of Pennsylvania Law Review, Vol. 172, 2024
William Baude
University of Chicago - Law School
Michael Stokes Paulsen
University of St. Thomas School of Law

Date Written: August 9, 2023

Abstract

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

Keywords: Constitution, Fourteenth Amendment, Section Three, Insurrection, Rebellion

Suggested Citation: Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, 2024, Available at SSRN: https://ssrn.com/abstract=

How Close We Came to an Unthinkable Moment

Kevin Carroll at The Dispatch:

Former President Donald Trump has been charged with four felonies for his efforts to overturn the results of the 2020 election. As a veteran, my blood ran cold reading two particular passages in special counsel Jack Smith’s indictment. They suggest that part of the former president and his co-conspirators’ autocratic plan to remain in power, despite knowing that they lost the 2020 election, was to make the U.S. military choose between subservience to civilian control or refusing to undertake an anti-democratic domestic political role.

In the first passage, it appears that when a deputy White House counsel warned Assistant Attorney General Jeffrey Clark that if Trump remained in office despite the absence of any evidence of outcome-determinative election fraud, riots would break out in U.S. cities, Clark responded, “That’s why there’s an Insurrection Act.” In the second, the indictment reports that when similarly warned of the risk of riots, Trump’s outside counsel John Eastman responded that there were points in American history when violence was necessary to protect the republic.

At the time of these statements, Trump planned to name Clark acting attorney general—the nation’s chief law enforcement officer—and Eastman had authored a memorandum advancing an argument, which he privately admitted was without legal merit, that Vice President Mike Pence could unilaterally reject slates of electors pledged to Joe Biden.

Taken together, these statements suggest that Clark and Eastman sought to have the vice president nullify the results of the 2020 election in bad faith, anticipated that this unconstitutional act might lead to widespread unrest, and that they planned for the commander-in-chief to order federal troops (or federalized National Guardsmen) to put down those riots.The armed services were to be told to use force against Americans to keep Trump in office, despite the objective fact, as established in more than 60 judicial proceedings, that Biden won the 2020 election.

...

The presidential demand anticipated by Clark and Eastman would place military leaders in the excruciating position of responding to an order facially legal under relevant statutes, but given for a purpose inimical to the ideals of the framers of the Constitution to which they swore an oath. Generals would be forced to choose whether to abandon an unbroken tradition of American military obedience to civilian control, or turn their guns on civilians to facilitate a losing candidate remaining in the White House beyond Inauguration Day.

J6 Indictment

 Special Counsel Jack Smith Delivers Statement

Tuesday, August 1, 2023

 

Washington, DC Statement as Delivered

Good evening. Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The indictment was issued by a grand jury of citizens here in the District of Columbia and sets forth the crimes charged in detail. I encourage everyone to read it in full. 

The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election. 

The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States. 

Since the attack on our Capitol, the Department of Justice has remained committed to ensuring accountability for those criminally responsible for what happened that day. This case is brought consistent with that commitment, and our investigation of other individuals continues. 

In this case, my office will seek a speedy trial so that our evidence can be tested in court and judged by a jury of citizens. In the meantime, I must emphasize that the indictment is only an allegation and that the defendant must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law. 

I would like to thank the members of the Federal Bureau of Investigation who are working on this investigation with my office, as well as the many career prosecutors and law enforcement agents from around the country who have worked on previous January 6 investigations. These women and men are public servants at the very highest order, and it is a privilege to work alongside them. Thank you.

Oath Breaker Gets 18 Years

 The Oath Keepers include current and former military and law enforcement personnel. They traffic in conspiracy theories and violence, including the Capitol insurrection.

Dan Berman and Hannah Rabinowitz at CNN:

Judge Amit Mehta on Thursday handed down an 18-year prison sentence for the leader of the Oath Keepers, Stewart Rhodes, for his efforts to overturn the 2020 election that ended with the violent attack on the US Capitol on January 6, 2021.
...

“I dare say, Mr. Rhodes – and I never have said this to anyone I have sentenced – you pose an ongoing threat and peril to our democracy and the fabric of this country,” Mehta said.

“I dare say we all now hold our collective breaths when an election is approaching. Will we have another January 6 again? That remains to be seen.”

The judge, refuting claims Rhodes made during a 20-minute rant earlier in the day, added: “You are not a political prisoner, Mr. Rhodes. That is not why you are here. It is not because of your beliefs. It is not because Joe Biden is the president right now.”

“I dare say, Mr. Rhodes – and I never have said this to anyone I have sentenced – you pose an ongoing threat and peril to our democracy and the fabric of this country,” Mehta said.

“I dare say we all now hold our collective breaths when an election is approaching. Will we have another January 6 again? That remains to be seen.”
...

The sentence is the first handed down in over a decade for seditious conspiracy and Mehta said he wanted to explain the offense to the public. He did not mince words.

“A seditious conspiracy, when you take those two concepts and put it together, is among the most serious crimes an American can commit. It is an offense against the government to use force. It is an offense against the people of our country,” the judge said.

“It is a series of acts in which you and others committed to use force, including potentially with weapons, against the government of the United States as it transitioned from one president to another. And what was the motive? You didn’t like the new guy.”
...

“Nothing has changed, Mr. Rhodes, nothing has changed. And the reality is as you sit here today and as we heard you speak, the moment you are released you will be prepared to take up arms against our government. And not because you are a political prisoner, not because of the 2020 election, because you think this is a valid way to address grievances.”
...

“It’s not simply a conspiracy theory or a false narrative about fraud. It’s about the Constitution,” Rhodes said, later shouting: “I am not able to drop that under my oath. I am not able to ignore the Constitution.”

The judge had none of that, and compared Rhodes’ comments to the heroism of police officers and others protecting the Capitol: “We want to talk about keeping oaths? There is nobody more emblematic of keeping their oaths, Mr. Rhodes.”

January 6: Seditious Conspiracy, Domestic Terrorism, Treason

 UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIAUNITED STATES OF AMERICA v.ELMER STEWART RHODES III,KELLY MEGGS,KENNETH HARRELSON,JESSICA WATKINS,ROBERTO MINUTA,JOSEPH HACKETT,DAVID MOERSCHEL,THOMAS CALDWELL, andEDWARD VALLEJO, Defendants.Case No. 22-cr-15-APMGOVERNMENT’S OMNIBUS SENTENCING MEMORANDUM ANDMOTION FOR UPWARD DEPARTURE

These defendants were prepared to fight. Not for their country, but against it. In their own words, they were “willing to die” in a “guerilla war” to achieve their goal of halting the transfer of power after the 2020 Presidential Election. As a co-conspirator recognized, their actions made these defendants “traitors.”

Using their positions of prominence within, and in affiliation with, the Oath Keepers organization, these defendants played a central and damning role in opposing by force the government of the United States, breaking the solemn oath many of them swore as members of the United States Armed Forces. To support their operation, they amassed an arsenal of firearms across the Potomac River and led a conspiracy that culminated in a mob’s attack on the United States Capitol while our elected representatives met in a Joint Session of Congress. Two juries found all nine defendants guilty of participating in this grave conduct. These defendants are unlike any of the hundreds of others who have been sentenced for their roles in the attack on the Capitol. Each defendant therefore deserves a significant sentence of incarceration.

...

 “[T]he violent breach of the Capitol on January 6 was a grave danger to our democracy.” United States v. Munchel, 991 F.3d 1273, 1284 (D.C. Cir. 2021). “The chaos wrought by the mob forced members of Congress to stop the certification and flee for safety.” United States v. Fischer, 64 F.4th 329, 332 (D.C. Cir. 2023). As this Court has explained:

January 6, 2021 was supposed to mark the peaceful transition of power. It had been that way for over two centuries, one presidential administration handing off peacefully to the next. President Ronald Reagan in his first inaugural address described “the orderly transfer of authority” as “nothing less than a miracle.” Violence and disruption happened in other countries, but not here. This is the United States of America, and it could never happen to our democracy. Thompson v. Trump, 590 F. Supp. 3d 46, 61 (D.D.C. 2022) (footnote omitted).

But, because of these defendants’ actions, it did happen to our democracy. Rioters injured more than a hundred members of law enforcement and inflicted significant emotional injuries on law enforcement officers and Capitol employees alike. The attack caused substantial damage to the Capitol, resulting in millions of dollars of financial losses. But the cost to our democracy and system of government was incalculable. See United States v. Gardner, No. 21-cr-622 (Mar. 16, 2023), Sent. Tr. at 68 (identifying one of the “victims” on January 6 as “democracy itself”)

...

 In short, the defendants’ conduct displayed a clear, shared intent to stop Congress from certifying the results of the election, including through the organized use of force and the staging of weapons nearby. That conduct—calculated to stop the peaceful transfer of Presidential power for the first time in the nation’s history—is a quintessential example of an intent to influence government conduct through intimidation or coercion and warrants an upward departure pursuant to Note 4. Indeed, the terrorism enhancement in Section 3A1.4 is meant to “punish[] more harshly than other criminals those whose wrongs served an end more terrible than other crimes.” Benkahla, 530 F.3d at 313

Lawyers, Oaths, and the Insurrection

Many posts have discussed oaths .

 Jessica Levinson at MSNBC:

Simply put, with power comes responsibility. Thus, before law students can become lawyers, they must prove that they are of good moral character. This may involve not only taking an exam but also completing something called a moral character application, which is in many ways akin to a background check. Part of this application includes obtaining references who can attest to one’s character. And that’s where law professors like me enter the picture.

Furthermore, once one passes that moral character vetting process, not to mention the bar exam, future lawyers must also take an oath to become a member of the bar. The oath requires that applicants pledge to uphold the U.S. and state constitutions of where they plan to practice, and to faithfully execute their duties as a lawyer. In California, for example, applicants are required to swear to “faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” put, before someone can enter the hallowed halls of our profession, we need to know we can trust that person. Less than ethical lawyers could abuse that trust — and their clients' trust — by, say, misusing or stealing a client’s money. Other examples could include breaking a trust on a far larger scale. For example, one could advise the president of the United States to file frivolous lawsuits based on lies but not law, or to devise an unconstitutional scheme to steal a presidential election. In these cases, you’ve fundamentally shown yourself undeserving of holding a position of public trust.

Three Percenters

From the January 6 report (p. 521): 

The Three Percenters believe that three percent of American colonists successfully overthrew the British during the American Revolution.273 Thisis not true. Far more than a tiny fraction of the colonial population fought in or supported the Revolutionary War.274 Regardless, this ahistorical belief has become an organizing myth for militias around modern-day America.

As with the Oath Keepers, many Three Percenters have turned against the U.S. Government, such that they equate it with the British monarchy and believe it should be overthrown.275 The movement does not have one, centralized hierarchy. Instead, semi-autonomous branches organize andrun themselves.276 The Three Percenter cause was growing prior to theattack on the U.S. Capitol. Jeremy Liggett, a militia leader in Florida, toldthe Select Committee it was “trendy” in far-right circles to identify withthe Three Percenter movement in the months leading up to January 6th.277

January 6 and President Selection

 From the J6 Committee:

At the Constitutional Convention 233 years ago, the framers considered but rejected multiple proposals that Congress itself vote to select the President of the United States.143 Indeed the Framers voiced very specific concerns with Congress selecting the President. They viewed it as important that the electors, chosen for the specific purpose of selecting the President, should make the determination rather than Congress:

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.144

The Framers understood that a thoughtful structure for the appointment of the President was necessary to avoid certain evils: “Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”145 They were careful to ensure that “those who from situation might be suspected of too great devotion to thepresident in office” “were not among those that chose the president.”146 For that reason, “[n]o senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of theelectors.”147

...

In testimony before the Select Committee, [VP counsel Greg] Jacob described in detail whythe Trump plan for Pence was illegal:

[T]he Vice President’s first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person—particularly not a person who had a direct interest in the outcome because they were on the ticket for the election—in a role to have decisive impact on the outcome of the election. And our review of text, history, and, frankly, just common sense, all confirmed the Vice President’s first instinct on thatpoint. There is no justifiable basis to conclude that the Vice President has that kind of authority.155

 143. The framers specifically considered and rejected two constitutional plans that would havegiven Congress the power to select the Executive. Under both the Virginia and New Jersey Plans, the national executive would have been chosen by the national legislature. See Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102Mich. L. Rev. 545, 592, 595 (2004); see also 1 The Records of the Federal Convention of 1787,at 21, 244 (Max Farrand ed., 1911) (introducing Virginia and New Jersey Plans), available at https://oll.libertyfund.org/title/farrand-the-records-of-the-federal-convention-of-1787vol-1; James Madison, Notes of the Constitutional Convention (Sep. 4, 1787) (Gov. Morris warning of “the danger of intrigue & faction” if Congress selected the President), available at https://www.consource.org/document/james-madisons-notes-of-the-constitutionalconvention-1787-9-4/

144. The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 

145. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

146. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

147. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). See also U.S.
Const. art. II, § 1, cl. 2 (“but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector”).

`155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16), available at https:// www.govinfo.gov/committee/house-january6th

 

The Peaceful Transfer of Power

 Liz Cheney in the 1/6 report:

At the heart of our Republic is the guarantee of the peaceful transfer of power. Members of Congress are reminded of this every day as we pass through the Capitol Rotunda. There, eight magnificent paintings detail theearliest days of our Republic. Four were painted by John Trumbull, including one depicting the moment in 1793 when George Washington resigned his commission, handing control of the Continental Army back to Congress. Trumbull called this, “one of the highest moral lessons ever given the world.” With this noble act, George Washington established the indispensable example of the peaceful transfer of power in our nation. 

Standing on the West Front of the Capitol in 1981, President Ronald Reagan described it this way: 

To a few of us here today, this is a solemn and most momentous occasion, and yet in the history of our nation it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place, as it has for almost two centuries, and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle.

Every President in our history has defended this orderly transfer of authority, except one. January 6, 2021 was the first time one American President refused his Constitutional duty to transfer power peacefully to the next.

The Oath and Rusty Bowers

 From the final report of the January 6 committee:

In Arizona, a primary target of President Trump’s pressure, and ire, was House Speaker Russell “Rusty” Bowers, a longtime Republican who had served 17 years in the State legislature. Throughout November and December, Bowers spoke to President Trump, Giuliani, and members of Giuliani’slegal team, in person or on the phone. During these calls, President Trump and others alleged that the results in Arizona were affected by fraud and asked that Bowers consider replacing Presidential electors for Biden withelectors for President Trump.249 Bowers demanded proof for the claims of fraud, but never got it. At one point, after Bowers pressed Giuliani on the claims of fraud, Giuliani responded, “we’ve got lots of theories, we just don’t have the evidence.”250 Bowers explained to Giuliani: “You are askingme do something against my oath, and I will not break my oath.”251

Terminating the Constitution

 

Donald Trump believes we should terminate “all rules, regulations and articles, even those found in the Constitution” to overturn the 2020 election. That was his view on 1/6 and remains his view today. No honest person can now deny that Trump is an enemy of the Constitution.

— Liz Cheney (@Liz_Cheney) December 4, 2022

Seditious Conspiracy

Alan Feuer and Zach Montague at NYT:

Stewart Rhodes, the leader of the far-right Oath Keepers militia, was convicted on Tuesday along with one of his subordinates of seditious conspiracy as a jury found them guilty of seeking to keep former President Donald J. Trump in power through an extensive plot that started after the 2020 election and culminated in the mob attack on the Capitol.

The jury in Federal District Court in Washington found three other defendants in the case not guilty of sedition and acquitted Mr. Rhodes of two separate conspiracy charges.

The split verdicts, coming after three days of deliberations, were a landmark — if not total — victory for the Justice Department, which poured enormous effort into prosecuting Mr. Rhodes and his four co-defendants.

The sedition convictions marked the first time in nearly 20 trials related to the Capitol attack that a jury had decided that the violence that erupted on Jan. 6, 2021, was the product of an organized conspiracy.