The Ethics Alarms accounting of the Big Lies weaponized by the “resistance,” Democrats and the mainstream media in order to, in the uncomfortably direct words of Rep. Daniel Goldman (D-N.Y.), “eliminate” Donald Trump, stopped before the 2020 election with “Big Lie #9: “Trump’s Mishandling Of The Pandemic Killed People.” (That oft-repeated whopper now looks even more outrageous than the other eight.) I have been meaning to add the obvious #10, “Trump is an Insurrectionist” for years now, and should have as that counter-factual, law- and language-defying slur has appeared daily in the media and was the focus of the Democratic House’s kangaroo court “investigation” into the January 6 riot at the Capitol.
What finally spurred me to action was a typically fatuous essay in New York Magazine’s “Intelligencer” column, “Melania Trump Adds Awkward Touch to Rosalynn Carter Funeral.” (Doesn’t a column with that name have some obligation to present intelligent commentary?).
The article was just another of the millions of installments of the Left’s mantra since the 2016 election: Donald Trump does not deserve the base-line respect, honor, fairness and decency that every other President has been automatically granted by virtue of simply holding the office. The truth is that Melania Trump was quite appropriately included among those honoring former First Lady Rosalynn Carter, she was invited, and there was nothing “awkward” about it. That her husband at various times has said uncomplimentary things about several of his predecessors made her presence no more “awkward” than the presence of Michelle Obama, whose husband broke previous established standards of White House decorum by repeatedly criticizing his immediate predecessor, President Bush. Then came the last snarky paragraph, “There’s no clear answer here; it seems we’re going to debate whether the Trumps should be included every time there’s a high-profile political event,” Margaret Hartmann wrote. “Unfortunately, Emily Post doesn’t cover what to do when the former president is a boorish insurrectionist.”
First of all, Trump was a U.S. President, and there should be no debate at all as to whether he should be included in events in which former Presidents are routinely included, just as there should have been no debate about whether Trump should have been permitted to host the Kennedy Center Honors event or throw out the first pitch of the baseball season without facing humiliating demonstrations. Robbing him of this ceremonial component of the office was one of many ways Trump has good reason to feel the 2020 election was rigged against him.
I’ll grant the New York Magazine’s propagandist the “boorish” description, but the “insurrectionist” label is a lie. For me, it is also signature significance: no writer, pundit, journalist, politician or Facebook freind who uses that term in connection with the 2021 Capitol riot is to be believed, trusted, or regarded as a anything but a biased and dishonest analyst.
The word insurrection is a legal term. Words have to have meanings, and the cynical partisan effort to falsely label the U.S. Capitol breach as an “insurrection” is a classic example of how a Big Lies can get a foothold and cause dangerous division and injustice. (Another is the current narrative that the Palestinians are an “oppressed people” being threatened by “genocide.”) Under federal law it is a crime to incite or engage in any rebellion or insurrection against the authority of the U.S. or its laws. Black’s Law Dictionary defines insurrection as “a violent revolt against oppressive authority,” distinguished from a mob or riot. Mobs and riots can involve unlawful and violent acts, but they aren’t insurrections unless they are organized, planned, and the objective is to overthrow the government.
Shays’ Rebellion (1786-1787), the Whiskey Rebellion (1790), Fries Rebellion (1799) and the American Civil War all met the legal definition of insurrection. The January 6 riot was a demonstration that turned into a riot spontaneously. There is no evidence that it was planned. A small percentage of the approximately 725 charged in the debacle were accused of violent crimes, and most of the guilty pleas have been to misdemeanors. No charges of rebellion or insurrection were filed, and for good reason—they would have been reversed or laughed out of court.
An FBI investigation did not show a coordinated and organized attack; almost all of the participants were acting individually, though clearly in the throes of mob psychology. Some participants have said they were triggered by Trump’s address to them before the incident about the election being fraudulent, but insisted that there was no organized or coordinated plan to attack the Capitol. Most of the Jan. 6 participants were charged with trespass.
Few, if any, of the rioters had fire-arms. Video footage shows some members of the mob walking peacefully through the building. No one involved and in their right mind could have thought for a second that they were going to overthrow the government of the United States, which, at the time, was still headed by Donald Trump. The man at the top of the government can’t overthrow the government. He can violate the Constitution, which is what the House’s “snap” impeachment alleged (without bothering with such details as due process and evidence), but calling whatever Trump’s role was an attempted insurrection involves legal complexities and logical leaps that have never been bridged.
There isn’t even sufficient evidence to charge Trump with inciting a riot. I hold his conduct that day, as well as his publicly insisting that he “won” the election, as his worst misconduct during his Presidency by far, and in my view, disqualifying for a Presidential candidate. But it still doesn’t make him an “insurrectionist,” not even close.
There is no precedent for calling something like the January 6 rioting an insurrection. When tens of thousands of protesters stormed the Wisconsin Capitol building in Madison in 2011 attempting to delay or stop the vote on proposed legislation to limit collective bargaining, it was not called an “insurrection.” The “Battle of Athens,” in Tennessee in 1946 really met the definition of an insurrection, but wasn’t charges as one. An argument could be made that the L.A. riots of 1992 and the BLM riots during the summer of 2020 met some of the requirements for an insurrection, but these arguments have seldom been made, and certainly didn’t prevail.
The Capitol riot has been cast for three years by the Axis of Unethical Conduct as an insurrection for no other reason than to remove Donald Trump from the political scene, and if the Big Lie can get him locked up, all the better.
As I wrote at the end of an earlier update on the “Get Trump” Big Lie assault,
I’m thoroughly sick of defending Donald Trump. He is, was and will always be an asshole, and his arrogance and flat-learning curve as a leader has done much to harm the nation. But if the Axis is going to keep defaulting to Big Lies about him in order to try to weasel out of their own despicable and destructive conduct, fair and informed people have to hold their noses and counter the gaslighting.
The Big Lies of the Resistance now stand at ten.
Ethics Alarms 
I’ll rise to that bait.
Not everyone is a lawyer, and when those non-lawyerly folks use a term, they’re likely to use the term as it is defined in common parlance, not the specifically legal definition. Dictionary.com: “an act or instance of rising in revolt, rebellion, or resistance against civil authority or an established government.” There’s nothing in that definition suggesting the need to be organized, or planned, or intended to overthrow the government. There’s no need for violence, either. “Rising in resistance” is sufficient. and the legislative branch would seem to meet the criterion of “established government.”
By way of analogy: one of my best friends at a place I used to teach was the music historian. It drove him crazy to hear Tchaikovsky described as a Classical composer. He was a Romantic, dammit; Mozart and Beethoven were Classical. But if my friend wanted a copy of 1812 Overture, he’d head to the Classical section of the record store (there were still record stores back then); “Romantic” was reserved for soppy “easy listening” stuff.
Did Trump engage in incitement to riot? It would be impossible to convince 12 out of 12 jurors beyond reasonable doubt that he did so, so legally, he’s innocent until proven guilty, which will never happen. That doesn’t mean he didn’t do it. And I refuse to insert “allegedly” when expressing an opinion rather than a fact.
And how exactly did Trump incite a riot?
He kept pointing out all the shady things done during our elections. You know, like ejecting all the observers and pulling a bunch of ballots from under the table to count illegally. Then, when recounts or investigations are supposed to happen, the ballots are kept in a room with an unlocked exterior door. When the police who were ‘guarding’ the ballots left for unknown reasons for 2 hours, the ballots ‘disappeared’ and for some reason the security cameras were all turned off. Or when it became exposed that, in Michigan, you are not allowed to recount precincts where obvious errors or fraud has happened, only precincts where everything checks out. The fraud legally must stand. Or the time they physically threatened someone to make her certify the election despite the fact that more votes were cast than there were registered voters. She relented only on the condition that there would be an investigation, but as soon as she voted yes, the investigation was cancelled. If all of the 40,000 or so illegally-counted ballots in Georgia were omitted from the election, would Trump have won Georgia? It is hard to tell, but it looks like it is within possibility. The illegally counted votes had a much higher Biden percentage than the others. Yeah, continuing to point out stuff like that could result in a riot. So, we must not let anyone know that these things happen. To do so is irresponsible, because it could result in a riot.
Almost as if they claim spreading ideas cause riots.
He didn’t, beyond a reasonable doubt or otherwise. It was stupid, irresponsible speech to give to a bunch of drunken yahoos, but Prpf. Turley, who is a legitimate constitutional scholar, made a pretty airtight case that Trump’s rhetoric, still inexcusable for a President under the circumstances, was still covered by the First Amendment. He wrote, in rebutting the Colorado judge who decided to smear Trump while not having teh guts to make the ruling she wanted to but knew would be reversed…
She states as a fact that Trump was guilty of incitement, a charge that no prosecutor has ever brought against him. That includes the D.C. Attorney General who announced his intention to pursue such charges. It also includes Special Counsel Jack Smith who threw every other possible criminal charge against Trump.
Nevertheless, Judge Wallace concludes that Trump “incited imminent lawless violence.” She further found that “[i]n addition to his consistent endorsement of political violence, Trump undertook efforts to undermine the legitimacy of the 2020 presidential election well in advance of the election, making accusations of widespread corruption, voter fraud, and election rigging.”
As such, she finds that his speech was not protected by the First Amendment. While I am a critic of Trump’s speech and actions on that day, I still believe that the the court is completely wrong on the First Amendment.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
It is common for political leaders to call for protests at the federal or state capitols when controversial legislation or actions are being taken. Indeed, in past elections, Democratic members also protested elections and challenged electoral votes in Congress.
The fact is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”
Trump also stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”
He ended his speech by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.
As I have discussed previously, the Ku Klux Klan leader Clarence Brandenburg referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court nevertheless overturned his conviction. Likewise, in Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.
Judge Wallace dismissed such arguments and holds that “while Trump’s Ellipse speech did mention “peaceful” conduct in his command to march to the Capitol, the overall tenor was that to save the democracy and the country the attendees needed to fight.”
That’s like the common uses of “exonerated” and “treason.” But like “insurrection,” those are all legal terms, and if someone in the media uses it, they have a professional obligation to be clear and not to confuse, especially if you’re going to use a definition to leapfrog to the 14th amendment’s use of the term, which was definitely leagl.
Jack
I have to ask if what transpired on January 7 can be defined by the Democrats as an insurrection why are we not defining the rioters who used violence to advance a political agenda such as BLM and Antifa terrorists because using violence to achieve a political goal is the definition of terrorism?
Some seem to want to change meanings of words to fit a narrative.
January 6th
From the first minutes of the Capitol riot, I wondered if any of the soon-to-be criminals expected a response that had become common in the aftermath of Floyd’s death.
For months, BLM & Antifa rioters suffered very few consequences for their violent behavior.
They were looters. They were arsonists. They violently attacked police. Their “autonomous zones,” credible efforts of rebellion, were established and maintained with little resistance from law enforcement. The people of Portland laid siege on the federal building for days, converting it to a poorly defended garrison as no one was coming to save them.
What should the Capitol rioters have expected? I think it was reasonable for them to assume that they would be treated just as the BLM & Antifa rioters had been treated.
I’m certain that some of the rioters at the Capitol expected that they’d get off scot free, but I doubt any of them expected to be punished as severely as they’ve been.