Originally published at: Smith Considered Charging Trump With Insurrection. The Law Wasn’t Ready. - TPM – Talking Points Memo
Tucked into ex-Special Counsel Jack Smith’s 137-page report on Donald Trump’s 2020 self-coup attempt, he explores a question that’s hung in the background of the case: Why wasn’t Trump ever charged with insurrection? The question has arisen in the form of honest inquiry, and also as a talking point from some Trump acolytes. For the…
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“The Office did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside,”
Yes, this was the first time it had ever occurred, that’s why it was important to charge it and get a record for future generations. Now that’s by the board.
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The law is an ass.
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If administered by asses.
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Presidents are immune from criminal responsibility for their official acts
We’ll see. But crimes against humanity are never official acts.
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“The bad man desires arbitrary power. What moves the evil man is the love of injustice.” – John Rawls
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“Before this case, no court had ever found that Presidents are immune from criminal responsibility for their official acts, and no text in the Constitution explicitly confers such criminal immunity on the President,” Smith wrote.
Actually, there is specific text which defines official acts, and the recent SCOTUS definition falls wildly outside that definition. The Founders feared an all-powerful President more than anything, and so they carefully circumscribed in the Constitution both a President’s responsibilities and powers. Any action that conforms to both those enumerated powers and responsibilities is both legal and constitutional; any action that falls outside of those enumerations is both unconstitutional and illegal.
Given that, not only is there no provision for Presidential immunity, but by definition there should not be - any official act is by definition constitutional and legal; immunity never enters into that question. Every unconstitutional act is by definition contrary to the Constitution, therefore in no way “official” (since the President’s powers and responsibilities derive from the Constitution), and should under no circumstances be tolerated.
Roberts’ “decree” on what makes an act “official” turns that all on its head and echoes Nixon’s notorious assertion that “…if the President does it, it’s not illegal…” Smith should have charged Trump for every unconstitutional action he took while President, and the list is a very long one.
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The issue there being that if brought under this Court, and its very marked position of, you know, ‘fuck the law, we do what we want’, then you get an official ruling of ‘nope, nothing POTUS does is insurrection or incitement, ever’ as your precedent for future generations.
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I am comfortable with every aspect of how Smith handled the January 6 case. I just wish he had been engaged to do so sooner.
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Isn’t that essentially what they ruled in Trump v. United States?
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Ok, how about sedition?
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I just wish he’d been operating in an environment where that might’ve mattered.
By the time he was brought in, the investigation was obviously already in-progress, just quietly. Given how Cannon set ridiculously-long deadlines for half-steps in the process, and then SCOTUS helped right along dragging their heels… I don’t think he’d have been any further along if he’d brought charges in 2020, let alone 2021-2022.
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Still gets appealed up to this SCOTUS.
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Guilt as obvious as classified docs on the floor of his Florida office per example.
We have no justice
We have corrupt & bought judges and justices.
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Exactly, and I think that means that what we need to do going forward is to put a more precise law on the books that spells out exactly what constitutes insurrection, or incitement to insurrection, etc., so that a prosecutor can lay out exactly how a defendant’s actions have violated the statute.
And that means we can’t do much for the next four years except prepare the text we want to see the legislation take.
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Emasculated?
Well that’s not fun…
Too bad we were not at war. Article 3, Section 3 is quite clear about treason.
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Sounds like a case of “use it or lose it.” Smith didn’t use it, so we all lost it.
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An election got in the way. Voters chose trump. That means immunity according to the SCOTUS.
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Not all of them. Just enough to make life very difficult for the present. But find a good biography of John Marshall Harlan (recommended: The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero by Peter S. Canellos) and read it to lift your spirits. He was often the lone dissenter in important cases in the late 19th century, but his powerful dissents eventually changed the law his way, though he didn’t live to see it. But His argument against the Plessy v Ferguson case was Thurgood Marshall’s inspiration for his argument in Brown v Board.
One good man with God makes a majority. Eventually.
And we have a dissenter on the Court now with Harlan’s power, I think, in Katanji Brown Jackson.
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Laughable. You think if it was left-wingers prosecutors would be twisting their heads about the definition of insurrection or what the Supreme Court might or might not do. Yeah, right.
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