Monday, September 25, 2023

"Speech Rights" Defense Shouldn't Protect Trump From Insurrection Clause Claims

Lawyers for Donald Trump are arguing that he's protected from attempts to have him disqualified for the presidency.

The 14th Amendment of the U.S. Constitution allows for the barring of a current or former lawmaker who formerly took an oath to the Constitution and "engaged in insurrection or rebellion" against the U.S., or otherwise gave aid to those who did (that last bit is important). 

Some residents of various states -- including Colorado -- are suing to have Trump blocked from appearing on primary and/or general election ballots next year, due to what happened in his name on January 6, 2021, when the U.S. Capitol was attacked by loyalists to the former POTUS after he riled them up and ordered them to voice their discontent to lawmakers in person.

According to reporting from the Associated Press, Trump's lawyers in Colorado are readying to use a First Amendment speech rights defense to say he should not be disqualified.

From the AP:
Attorneys for former President Donald Trump argue that an attempt to bar him from the 2024 ballot under a rarely used “insurrection” clause of the Constitution should be dismissed as a violation of his freedom of speech.


Trump also will argue that the clause doesn’t apply to him because “the Fourteenth Amendment applies to one who ‘engaged in insurrection or rebellion,’ not one who only ‘instigated’ any action,” [Trump attorney Geoffrey] Blue wrote.
On its face, this might appear to be a reasoned argument -- Trump wasn't at the Capitol taking part in the attack, so he shouldn't be called an insurrectionist. Except: the 14th Amendment does not require someone to have been directly involved in the action to be subjected to the law.

As I already pointed out, a person who provides AID to an insurrection is also barred from running for future office under the constitutional provision. Their helping of the insurrection is considered just as bad as the act of the insurrection itself.

Trump's actions -- including his inaction on January 6 -- indicate that he aided those attacking the Capitol. He encouraged them to go there in the first place, and when the mob became violent, he waited for several hours before saying they should go home. 

Witnesses in the White House say he even watched the attack happen on television with glee as it was happening, and that he refused to call out the National Guard.

Passiveness during an insurrection may not hold up in court in most cases, when it comes to this constitutional rule. But when it comes to the president of the United States, especially one who BENEFITS from the mob's actions and takes ZERO action in trying to quell the violence, the passiveness is itself aiding the insurrection.

In short, by doing nothing for several hours while Congress was under attack, Trump was aiding and abetting the insurrection that was happening on his behalf. It doesn't matter whether he was actively a part of it or not -- his inaction that day, in violation of his presidential duties, aided the mob's goals.

Gage Skidmore/Flickr, CC BY-SA 2.0

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