What is insurrection? Your insurrection is my protest?
"Cert granted" item, online, showing the timing schedule set by SCOTUS.
Online copy, Petition for cert., contesting the Colorado case (Maine not included, but the Maine administrative decision cross-references the Colorado evidence and in stating its factual basis Maine's decision is largely duplicative.)
A few things have gained Crabgrass focus, i.e., p.26 of the Petition:
Moreover, the result of divergent standards and deter-
minations is particularly problematic in presidential elec-
tions. As this Court has recognized, “in the context of a
Presidential election, state-imposed restrictions implicate
a uniquely important national interest” because “the
President and the Vice President of the United States are
the only elected officials who represent all the voters in
the Nation” and “the impact of the votes cast in each State
is affected by the votes cast for the various candidates in
other States.” Anderson v. Celebrezze, 460 U.S. 780, 796
(1983) (footnotes and citations omitted).
That is stating the obvious, but it remains a factor worth some considerations. Uniformity matters. Moreover, there is the Petition at p.26 et seq.
IV. PRESIDENT TRUMP DID NOT “ENGAGE IN
INSURRECTION”
The Court should also reverse the Colorado Supreme
Court’s holding that President Trump “engaged in insur-
rection.”
First, the events of January 6, 2021, were not “insur-
rection” as that term is used in Section 3.
“Insurrection” as understood at the time of the pas-
sage of the Fourteenth Amendment meant the taking up
of arms and waging war upon the United States. When
considered in the context of the time, this makes sense.
The United States had undergone a horrific civil war in
which over 600,000 combatants died, and the very survival
of the nation was in doubt. Focusing on war-making was
the logical result.
By contrast, the United States has a long history of
political protests that have turned violent. In the summer
of 2020 alone, violent protestors targeted the federal
courthouse in Portland, Oregon, for over 50 days, repeat-
edly assaulted federal officers and set fire to the court-
house, all in support of a purported political agenda op-
posed to the authority of the United States. See Portland
Riots Read Out: July 21, U.S. Department of Homeland
Security (Jul. 21, 2020), https://www.dhs.gov/news/
2020/07/21/portland-riots-read-out-july-21. In the context
of the history of violent American political protests, Jan-
uary 6 was not insurrection and thus no justification for
invoking section 3.
Moreover, nothing that President Trump did “en-
gaged” in “insurrection.”
President Trump never told his supporters to enter
the Capitol, either in his speech at the Ellipse33 or in any
of his statements or communications before or during the
events at the Capitol. [...]
[...] The Court should also review and reverse the Colo-
rado Supreme Court’s holding that President Trump’s
speech could be constitutionally proscribed incitement un-
der Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). The
state supreme court relied on Professor Simi’s testimony
and deferred to the district court’s factfinding in wrong-
fully holding that President Trump had encouraged vio-
lence and that his words were likely to have that effect.
App. 106a–113a. But constitutional speech protections
should not turn on opinions from sociology professors, and
constitutional facts of this sort should be reviewed de novo
rather than deferentially. See U.S. Bank National Ass’n
ex rel. CWCapital Asset Management LLC v. Village at
Lakeridge, LLC, 138 S. Ct. 960, 967 n.4 (2018).
Three things highlighted. First, original intent - The Confederacy had just fallen after years of armed conflict involving great devastation. That was "insurrection" history at the time. Presidential pardons Andrew Johnson gave or might have given were forestalled as a basis for letting prominent Confederate politicians and military men back into official U.S positions, post-Civil War, by Amendment 14, sect. 3; absent a super majority of Congress. Johnson and Congress were strongly at odds at the time Congress proposed the Amendents, (A. 14, s. 3, included.)
Looking forward, any future possible similar scale of "insurrection" was addressed, but the entire Civil War amendments were looking backward very much. Primarily so. Yet, none of the Civil War Amendments specify "Confederate" bases. (A search of complete Constitution text for "Confeder" only yields references to the earlier arrangements under the Articles of Confederation, two places, both in the original unamended Constitutional text.)
The second thing, "participate" in insurrection, technically Trump never said enter the Capitol, but he said he'd lead them, which he did not do, and he said "fight like hell." So he incited action but did he "engage" in it? Trump gave a long speech and went home.
Amend. 14, sect. 3 states:
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 Congress may by a vote of two-thirds of each House, remove such disability.
Third thing, if he "engaged" in the action, was it insurrection? Surely not of the degree that inspired the Civil War Amendments. That is what the Petitioners say is a critical question which they argue should be decided de novo by SCOTUS.
The closest recent thing to renouncing the government and taking up arms against it was, as best as Crabgrass recalls a while ago, The Order, an identifiable band of White Supremacists doing much over time against what they called ZOG, to them, the Zionist Occupation Government, which they renounced. It was violence over time, but surely not near the scale of a secessionist government being formed coining money, producing cannon, ships and other war goods, and fielding uniformed troops in a substantial part of the nation, thereafter at war on a large scale of fighting battles at multiple locations against federal troops. Yet it clearly went further than forced entry into the Capitol as a rag-tag vandalizing band who exited peacefully later the same day.
Go figure. Perhaps the soundest SCOTUS decision would be to hold in an "originalist" sense that the Amendment text clearly was aimed at those who'd just lost an "insurrection" and incidentally touched upon a possible recurrence at such a scale - as conduct of a substantial nature sufficient to trigger a bar against holding any federal or State office. Historically, as southern states were allowed back into the union ratification of the Fourteenth Amendment was a pre-condition. Former members of Congress were accorded positions in the Confederacy and at the time there was strong Congressional belief they should not be allowed back into the U.S. government. General Robert E. Lee was an academy graduate, having taken an oath to enter the federal military before taking arms in the Confederacy. I.e., there were specific individuals in mind as targets of adding that Amendment language to the Constitution. All of that adds context to holding the bar to office to its original history, context and timely imagination and intent. Such a holding would forestall any further contentions that so-an-so should in the future be barred from being on a ballot, which would stop a lot of potential mischief.
The Crabgrass belief is Trump should not be barred from any ballot in the 2024 election unless he loses a primary. It makes the best sense, let the people vote.
____________AN EXPERIMENT___________
Asking Microsoft Copilot (preview) in Microsoft's Edge browser - Is Donald J. Trump an insurrectionsit? The Bot replied:
This is a controversial and complex question that does not have a definitive answer. Some people argue that former President Trump engaged in an insurrection on January 6, 2021, when he incited a violent mob to storm the US Capitol in an attempt to overturn the results of the 2020 presidential election. Others disagree and say that the events of that day were not an insurrection, but a riot or a protest, and that Trump did not directly participate in or support the violence.
Waffle AI, ya betcha. But - expected.
Learn more
Try a related question - What sort of person would vote for Donald Trump for President?
The bot replied:
Learn more
So, had I not given fair attribution to the bot, I could lose my position as head of an Ivy League University, if I had such a position. But I gave attribution. To a Bot. What a world!