#Armed Insurrection

[ridenwithbiden]

[dreaminginthedeepsouth]

Not communists, as it turns out, but MAGA Republicans.

* * * *

Disqualifying Trump under Section 3 of the 14th Amendment.

          Last week, I criticized a scholarly article by two law school professors (William Baude and Michael Paulsen) who contend that state election officials can unilaterally disqualify Trump from ballots based on their independent “duty” to enforce Section 3 of the 14th Amendment. Section 3 provides that no person may hold federal office if—after having taken an oath to uphold the Constitution—they

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

          After I wrote my piece last week (which is here: The only path forward . . . . - by Robert B. Hubbell (substack.com)), Professor Laurence Tribe and retired federal court of appeals Judge Michael Luttig published an article in The Atlantic that praised and endorsed the article by Baude and Paulsen. The article by Professor Tribe and Judge Luttig is here: The Constitution Prohibits Trump From Ever Being President Again. (The article should be accessible to all.)

          While Professor Tribe and Judge Luttig agree with Baude and Paulsen, they admit a practical consideration that is not front and center in the article by Baude and Paulsen, who emphasize unilateral action by state officials unbounded by due process and the First Amendment. Professor Tribe and Judge Luttig write,

As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer.

          Dozens of readers sent me copies of the article in The Atlantic and asked me to comment on (read: dispute) the legal analysis by Professor Tribe and Judge Luttig.

          Come on, people! I am not that stupid! You will not bait me into disagreeing with Professor Tribe and Judge Luttig on legal matters.

          Instead, I will change the terms of the debate.

          I believe that attempting to enforce Section 3’s disqualification clause by urging state officials to unilaterally and variously block Trump from the ballot (or not) is a bad idea from a political standpoint.

          Why?

          I believe there is no scenario in which Trump will be disqualified from enough state ballots to preemptively determine the outcome of the election in the electoral college. The most likely result is that Trump will be disqualified in a few deep blue states that he has no chance of winning in any event. But if he thereafter loses an election in which he has been barred from the ballot in a handful of states controlled by Democrats, tens of millions of Americans will believe that the election result is illegitimate. Without agreeing that Republicans would be correct in their view of the illegitimacy of the election, a reasonable observer should be able to see why Trump supporters would feel aggrieved in that scenario.

          After the bruising attack on the legitimacy of the 2020 election, inviting disputes over the 2024 election based on a contested legal theory does not seem to be the best political path forward.

          As before, I remind readers that I believe Trump engaged in insurrection and should be disqualified from holding the office of president and that Section 3 is still operative today. But as much as I believe those premises, we must recognize they are not shared by tens of millions of Americans. Setting aside the legal analysis about whether Trump engaged in insurrection, let’s examine whether there is a solid footing for a political consensus on that point such that unilateral enforcement of Section 3 would not damage the legitimacy of the 2024 election. I won’t bury the lead: I do not believe that such a political consensus exists.

          Let’s begin by recognizing that, as applied to Trump, Section 3 includes two elements that must be satisfied: (1) That the events of January 6th constitute a rebellion or insurrection, and (2) that Trump “engaged” in that rebellion/insurrection or gave “aid or comfort to the enemies” of the United States.

          Those who oppose the disqualification bar would say that the question of whether Trump has engaged in insurrection has been answered in the negative by Congress and the DOJ, for the following reasons:

          The Senate acquitted Trump in his second impeachment of the charge of “incitement to insurrection.” In so doing, the Senate refused to apply the very remedy that proponents of the Section 3 bar would nonetheless apply.

          The January 6th Committee recommended that the DOJ indict Trump for engaging in insurrection or rebellion in violation of 18 U.S. Code § 2383 (Rebellion or insurrection). See also DOJ Referrals | Jan-6.com.

          Although the DOJ did indict Trump on other grounds recommended by the January 6th Committee, it has not indicted Trump for “rebellion or insurrection” under Section 2383, as recommended by the J6 Committee. A reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge Trump with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was not an insurrection and Trump is not guilty of having engaged in insurrection on January 6th.

          Indeed, the DOJ has not indicted anyone for “rebellion or insurrection” under Section 2383. True, some defendants have been indicted and convicted for “seditious conspiracy” under Section 18 USC § 2384, which legal commentators would rightly note is effectively “the same thing” as planning an “insurrection or rebellion.” Fair point. But the DOJ has not indicted Trump for seditious conspiracy. As before, a reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge any defendants (including Trump) with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was neither.

          Against that backdrop, arguing that state election officials should nonetheless unilaterally conclude—as a matter of constitutional certainty—that Trump engaged in rebellion or insurrection on January 6th is a proposition ripe with the potential for political strife.

          And we haven’t even begun to discuss the impracticalities of urging secretaries of state to bar Trump from the 2024 presidential ballot. Republicans hold the secretary of state seat in twenty-six states, including the swing states of Georgia and Pennsylvania. Democrats hold the secretary of state seat in twenty-two states, including the swing states of Arizona, Michigan, Wisconsin, and Nevada.

          We cannot assume that each of the secretaries of state has the authority under state law to determine which candidates appear on the ballot. One reader wrote to the Washington State Secretary of State urging them to bar Trump from the ballot and received this reply:

Political parties submit the candidate names to appear on the Presidential Primary ballot. That’s in RCW 29A.56.031. The Office of Secretary of State has no statutory power to evaluate a candidate’s qualifications for the office, which are set in federal law.

          But let’s assume for argument that the secretaries of state in the four swing states of Arizona, Michigan, Wisconsin, and Nevada bar Trump from the ballot in those states. If that happens, Trump would have no realistic chance of gaining the electoral votes necessary to be elected president.

          The net result is that four individuals holding the office of secretary of state in four states may decide who will serve as our next president.

          Really?!

          Even if that result is ultimately adjudged to be the correct outcome from a legal standpoint, the question remains whether that is what our democracy needs at this contentious moment in our history. I do not believe it is.

          I have done my best to avoid crossing legal swords with Professor Tribe and Judge Luttig. Indeed, I agree with their ultimate legal conclusions. My point is that their view of the law will be rejected by tens of millions of Americans given the actions by Congress and the inaction by the DOJ described above. The law is not a popularity contest (nor should it be)—but political legitimacy is. Given those facts, I believe it would be a political mistake to follow a strategy with a low probability of electoral success and a high probability for undermining the outcome of the 2024 election. As I wrote last week,

          Here is the point: There is only one way to ensure that Trump does not hold the office of the presidency again: We must beat him decisively at the ballot box. I worry that the emotional energy that readers are investing in a contested legal theory is a distraction and a setup for disappointment.           The argument regarding the “self-enforcing” feature of Section 3 is contested and, in my view, bristling with unintended consequences. Keeping Trump off the ballot is not going to work; and if it does, it will result in retaliatory actions by MAGA secretaries of state. Let’s not go there. Let’s beat Trump at the ballot box. That is the only path forward . . .

          I recognize that many readers will disagree with my views. I have heard from many of you already. I hope that I have convinced you (at least) that the legal theory will be challenged, and that the political fallout will be substantial. If you nonetheless support the effort, that is obviously a legitimate choice with substantial legal support. But, please, let’s recognize the political realities of attempting to enforce Section 3 through state election officials applying their own views about whether Trump engaged in insurrection or rebellion.

[Robert B. Hubbell Newsletter]

[fluentisonus]

part of the problem is that a lot of hugo's politics are really well thought out & considered & good but then some of them are like. entirely vibes-based to the point of feeling muddled & inconsistent & even straight up Bad sometimes. which is annoying

[gotyouanyway]

ik the words chaotic and insane are way overused to describe characters but i don’t think i’ve ever meant them more than i do for andred

[dontmean2bepoliticalbut]

[vaspider]

I cannot stress enough how important it is that whatever you think of anything else, Trump Cannot Be President Again.

The "rip apart democracy and install an autocrat" group was not Ready for him in 2016. They didn't think he'd win.

They're ready now. They're teeing up for a second Trump president. Whatever your favorite current Thing, it would be worse under Trump, and it is not an exaggeration to say that they're going to try to make sure that they stay in power forever, by any means necessary.

SCOTUS basically just said, "If Trump sends the Army in to murder protestors, that's okay. If Trump assassinates a political rival with the armed forces of which he is the Commander In Chief, that's an official act, and there's no recourse."

Anything he can even vaguely justify as "an official act" - including installing people in the Justice Department to support his coup, including pressuring his VP to support his coup - is no longer a crime.

This isn't just me saying this, btw. Here's Robert Reich, lifelong public servant (and yes, dad of @samreich, since I know what's important to y'all):

Finally, the Republican-appointed justices have given a dangerous amount of discretion to presidents — broad enough, as Justice Sonia Sotomayor noted in her dissent, to protect presidents from prosecution for bribes and assassinations. A president already has the authority under the Insurrection Act to order troops into American streets. After today’s ruling, those troops would be under the command of a person who would almost certainly enjoy absolute immunity for the orders he gives them.

This is unbelievably terrifying.

[evilkitten3]

i would agree with the latter point

i think op is on the right track but like. the metaphor falls apart once you realize that. the people in power can just ignore you if no one stops them. this has happened before. voting does do stuff, it's disingenuous to say it does nothing, but it does stuff bc we've all agreed that it should, and currently we're all at least on some level behaving as tho we want it to stay that way

but trump lost the popular vote twice, and both times he just. said he didn't. the second time he incited an insurrection about it.

since prev used britain as an example, let's keep on that track - the prime minister of the uk is, as i understand it, chosen by the monarch. however, that monarch always picks the head of the party that got the most seats in the commons, but that's not actually a written rule, it's just convention. technically, the king could pick whoever he wants, so why doesn't he? what's keeping him from doing that?

the most obvious answer is the fear of what would happen after - the fear or violent retaliation.

the same general idea is true here in the usa - while we all love telling ourselves that we get to decide our politicians, the reality is that thanks to the electoral college and insane laws regarding who gets to draw voting districts (usually politicians, who may have a slight conflict of interest there), what actually tends to happen is that politicians pick their voters.

as op says - there is no super-cop coming to arrest trump if he breaks the rules. we know that bc he's been breaking them in public on tv for the better part of a decade, and he's not going to be sentenced until after the election - meaning that if he wins, he can just pardon himself, which he's obviously going to.

you can - and should - vote according to your political beliefs, but to act as tho the vote is a magic spell that wards off evil is just as if not more disingenuous than pretending it does nothing at all.

ask yourself this - what would you have done if the jan 6th insurrection had been successful? would you have taken up arms to overthrow an undemocratically elected leader? or would you have called your representatives to ask them to politely tell him to go away and encouraged everyone to just vote harder next time?

at the end of the day, your vote only means something so long as you're willing to commit to enforcing the idea that it does. if you aren't, you're just adding your name to a meaningless list of people with a preference.

Like, getting political for a moment. A thing a lot of people need to understand is that, ultimately, rules only exist if they are enforceable. The mechanism of enforcement is what determines the realness of a rule.

If you're playing Monopoly and you decide that being in Jail sucks so you move your piece to Go and call it a tunneling loophole, there's nothing built into the game to actually stop you from doing that. Other players yelling at you and banishing you from the table is how the rule is enforced. But if they don't, if they let you do that, then I'm sorry but that's just how the game is played now. If you're allowed to do it then it's not against the rules.

We all instinctively understand that when you're running track, you're not supposed to cross the lines into someone else's lane. But the lines are not a wall. They're not physically preventing you from doing anything. If you decide you want to run into the lane to your right and jump-kick the other racer, you physically can do that.

The line on the ground is a social construct. It's part of the magic circle; A thing that takes on special meaning, even psychological power, so long as we exist within its play space. But it's not real, and it only has power if somebody comes over and drags you off the field for striking that other racer.

At the highest echelons of power, a lot of what "can" and "can't" be done are actually just the boundaries of a magic circle with few real enforcement mechanisms. The President can't do that. But. Like. Who's going to stop him if he does?

The biggest thing we learned during the Trump Presidency was just how many restrictions on government power are illusory. Trump spent his four years in office testing the limits of what he can and can't do. Stepping over the lines of the magic circle to see which ones had enforcement mechanisms and which were merely decorative. And revealing that an alarming number were decorative.

Because the thing about the highest offices, about POTUS and SCOTUS and Congress, is that they're the highest offices. There's nobody above them. The only check on their power is each other and, contrary to what high school social studies might tell you, those checks aren't very strong at all.

Trump wants to redefine the game rules to be dictatorial. The magic circle says he can't do that. But the only factor that truly decides whether he can or can't is whether the other players at the table will let him do it. And if you listen to the way Republican Congressmen talk, it's not reassuring.

There are no executive super-cops who will arrest Trump if he breaks the rules. The Avengers are not going to show up and stop him from continuing to reconfigure the magic circle to his liking. The only thing, the only true restriction on his power, is the vote. It's the fact that we, as a population, get to make a choice as to whether or not he even gets to sit back down at the table to play again at all.

In a democracy, voters are the enforcement mechanism. Let's try and remember that when November comes around.

[sublimeobservationarcade]

 Civil War In America: The Sequel

I just watched Civil War, the 2024 movie, by Alex Garland. I had been holding off on viewing it because I didn’t know if it would be another Hollywood gun fest. Initially, my thoughts were – yeah, dumb Americans and their stupid obsession with whizz bang weapons. I mean, the country contains some 600 million guns, apparently. I called this article, Civil War in America: The sequel because they…

[mental-mona]

*Shudder* Gotta love when people decide that they are the Army of God and therefore correct in wanting to kill everyone who doesn't look like them and/or thinks significantly differently...especially when somehow "made in G-d's image" gets the caveat "but THOSE people are just evil"...

[mourning-again-in-america]

look if you're going to cite a category theorist did you have to pick the one I have twitter beef with

[trueconservativepundit]

2023 Year In Review

By Rob Pue, Publisher – Wisconsin Christian News      Let’s take a look back at the last year, now behind us, and remember all we experienced as we press on into 2024.  The year began with the Biden administration allowing the US Postal Service to ignore state abortion bans and send abortion drugs by mail to all fifty states.  This followed the June ‘22 decision by the US Supreme Court…

[lejacquelope]

This is what happens when you don't obey the law.

If it's good enough for Michael Brown it's good enough for Asshli Babble.

You're welcome, right wing subhuman trash. Suck it!

[bardly-working]

"An Extremely Violent Adversary Wants Civil Resistance to Turn Violent"

- Myopia of the Syrian Struggle and Key Lessons, by Maciej J. Bartkowski and Julia Taleb

I'm so sick of this "but there's a magical peaceful solution 🌈✨" mindset y'all have when I (or even anyone else) bring up resistance. Please STFU. Another one for the blocklist tag.

[charlietheepicwriter7]

"Grandfather."

Ra's knew who the boy was the moment he'd snuck into the room. He'd allowed the child--more man than child now, but everyone was a child compared to him--moments to steel himself while Ra's refrained from acknowledging his presence. The boy's breath was barely audible but unsteady, and a drop of something fell to the floor.

His grandson was injured. "Danyal," he greeted and finally gazed upon him for the first time in seven years.

Danyal had grown into his father's height, yet stayed lean in regards to his musculature. His black hair had grown out of the League-regulation haircut, held back in a messy braid. He held himself as strong as he could, but kept an arm wrapped around his stomach. His shirt--standard American teenage garb, he dismissed--was spotted with blood and he could see bandages poking out from under the cloth.

With great care, Danyal knelt before the Demon Head and recited the Oath of Loyalty.

Ra's watched.

The boy's tongue, fat with English, spoke the League's variant of Arabic with the grace of a mace to the head, yet his words were clear. He took his time speaking the oath, carefully sounding out words, working hard to avoid mispronunciation. The Oath in question was the older version, from before Deathstroke's insurrection, but Danyal spoke it with a calm certainty that it would be accepted.

And without a doubt, it would be accepted.

Talia's eldest son had been born from her body instead of through science, a mistake that nearly cost her the child and damaged him upon birth. While the best doctors in the world saved his life, Danyal Al Ghul would always be weak in a fight, always prone to illness, always struggling to excel. When it became clear that the boy couldn't become the next Demon Head, Ra's sent Talia to create a replacement while arrangements were made for her first child to be taught business and science, for the betterment of the League. Danyal, very much his father's child, thrived in his intellectual pursuits while Damian grew and developed into a budding assassin.

But Danyal was more like his father than he'd ever knew. Ra's couldn't miss the signs of one of his family turning away from the League. Not the mission--Danyal had written several university level papers defending the environment by the time the boy was 10--but Ra's methods...

Ra's had a conundrum. Danyal was a dedicated conservationist; once the boy was an adult, Ra's was certain he'd take the world by storm and bring the League to new heights. But if he forced his methods onto Danyal, he could create an enemy of him, just as his father was.

Ra's gave Danyal an offer; Danyal would be allowed to leave the League and live a normal life if and only if he faked his own death in such a way that reinforced Damian's loyalty to the League of Assassins.

Danyal had been hesitant at first, but past his test with flying colors. Instigating one of the more unstable assassins into organizing a coup, cutting the insurgents off near immediately, but "dying" protecting both his younger brother and mother. It was a masterful performance. Even Talia hadn't known about the deceit.

And yet, here he was, on his knees, pledging loyalty. Danyal knew what that meant, knew what he was returning to, which morals he would be allowed to keep.

"And what do you bring with you, child of no one?" Why should the League accept the return of this child, who left once before?

Danyal met his eyes. "I bring with me, my team, who are loyal to me and me alone. I bring with me, research surrounding the Lazarus Pits, in origins and further uses for the waters." Ra's raised an eyebrow, and Danyal smirked. "I bring with me, my knowledge, nurtured within this very home and sharpened in the world outside. I bring with me, my weapons, built with my own hands. I bring with me... my body, finally healthy and whole." He brought his head down to the floor, trembling with pain. "I bring my whole self to the Demon's Head, for Him to accept or reject."

Ra's smiled. "By the shadows that guard our order and the blood that binds us, I accept this oath. From this day forward, you are an instrument of the League, a harbinger of justice, and a weapon in the hand of Ra's Al Ghul."

Danyal returned to his feet, swaying percariously. He needed immediate medical attention. Despite this, he continued, "Long live the League of Assassins. Long live Ra's Al Ghul."

And he collapsed onto the floor.