Liars? Democrats? Journalists?

One of the New York Times’ least Stockholm Syndrome-suffering conservative pundits, Ross Douthat, has an entry at the Times digital page called “Why Jan. 6 Wasn’t an Insurrection.” He does a good job, and the column would be useful one to circulate to your Trump Deranged social media buddies who have been brainwashed by the constant use of the word to falsely describe the idiocy that unfolded on that day…President Biden being one of the main offenders. Douthat begins with the same expression of frustration over the constant Big Lie-mongering on this topic that I have been suffering from over the entire three-year interim:

I’ve written several times about the case for disqualifying Donald Trump via the 14th Amendment, arguing that it fails tests of political prudence and constitutional plausibility alike. But the debate keeps going, and the proponents of disqualification have dug into the position that whatever the prudential concerns about the amendment’s application, the events of Jan. 6, 2021, obviously amounted to an insurrection in the sense intended by the Constitution, and saying otherwise is just evasion or denial.

I know the piece is behind a paywall, so hopefully Mt. Douthat’s understanding, I’m going to quote a bit more freely from his work—with attribution!!!—than I usually would. He announces his agreement with legal scholar Steven Calabresi in Reason magazine, who has pointed out that the “paradigmatic example” that the drafters of the 14th Amendment had in mind “should guide our understanding of its ambiguities.” That would be the Civil War, “in which hundreds of thousands of people were killed.” Says Douthat, perhaps wondering why he should have to, “a five-hour riot probably doesn’t clear the bar.” Ya think?

Nonetheless, the few non-deranged legal scholars who really believe that Donald Trump should be banned from ballots because of his connection to the riot (they rioted on his behalf, after all) argue that there are “relevant examples…in American and world history… that parallel what happened on Jan. 6 …that they think we would obviously call …insurrections in the constitutionally relevant meaning of the term.”

Illya Somin, for example, a conservative constitutional scholar who wants Trump declared unable to hold office, claims the 1923 Beer Hall Putsch is a fair analogy. But it isn’t. Douthat quotes Ian Kershaw’s description of that episode’s climax:

People were standing on their seats trying to see what was happening as Hitler advanced through the hall, accompanied by two armed bodyguards, their pistols pointing at the ceiling. Hitler stood on a chair but, unable to make himself heard in the tumult, took out his Browning pistol and fired a shot through the ceiling. He then announced that the national revolution had broken out, and that the hall was surrounded by 600 armed men. If there was trouble, he said, he would bring a machine-gun into the gallery. The Bavarian government was deposed, a provisional Reich government would be formed.

(That’s Douthat’s emphasis.)

Seriously? Who can honestly say something like that was underway, intended or threatened when the mob descended on the Capitol?

Obviously, there was no such equivalent declaration when the QAnon Shaman ascended to the Senate rostrum; no serious claim of military or political authority made on behalf of the assembled mob, no declaration of a dissolved Congress and a new Trumpist Reich. Had there been — had, say, one of Trump’s aides rushed to the Capitol and announced that Congress was disbanded and that President Trump was declaring a state of emergency and would henceforth be ruling by fiat — then the riot would have been transformed into an insurrectionary coup d’état. But nothing like that happened: The riot did not culminate in an attempt to depose the Congress; it dissolved before lawful authority instead, remaining a mob until the end.

I watched the riot unfold on TV, though lots of scenes became available for viewing afterward, none of which proving my initial reaction wrong. I thought, in sequence,

• “Wow, those drunken fools are really going to try to disrupt the final certification of the election.”
• “Why wasn’t security sufficient to stop this? They knew a mob of crazies were planning on demonstrating.”
• “What a disaster.”

I did not think, however, “Oh no, the government of the United States of America is about to be overthrown and a guy wearing face-paint and a medicine man headdress is taking over!,” because it obviously wasn’t, and because the participants themselves were pretty clearly just swept up in the emotion of an angry protest. It reminded me, in fact, of the infamous SDS takeover of the Harvard administration building in 1969 as part of a protest against Harvard’s support of the Vietnam war (by allowing ROTC on campus.) It just happened spontaneously, sparked by literally a handful of radical student assholes, and expanded into a pitched battle between hundreds of students and overwhelmed police in riot gear by dawn of the next day. The students weren’t trying to overthrow the Harvard administration and run the college themselves. They wouldn’t know how to start; they had no plan, and the occupation of the building turned into riot when mob mentality took over. [It is amazing how few photographic records of the Harvard Yard rioting exist. None, really, that adequately depict the chaos and violence I witnessed from my dorm room in Hollis 11. The advent of cell phone cameras has had its up-side.]

Knocking aside another poor analogy for what might fit under the 14th Amendment’s meaning of “Insurrection,” Douthat recounts the circumstances of the Whiskey Rebellion, the 1794 frontier revolt (above) against excise taxes eventually squashed by George Washington. The columnist concludes,

That the subsequent show of force by the federal government collapsed this rebellion without a pitched battle doesn’t change the fact that there was, for a period of time, an incipient political formation in those western counties opposed to the authority of the federal government and the Constitution. That, again, is not what happened on Jan. 6. The entire John Eastman fantasy was that Trump could get away with retaining the White House within the parameters of constitutionally delegated powers, using the supposed authority of Mike Pence to leverage an 1876-style legislative endgame for a disputed election. And when that implausible hope dissolved, the angry mob mostly believed itself to be standing up for constitutional government against the purported chicanery of Biden’s allegedly fraud-enabled victory. 

Exactly. Trump, listening to bad advice (or encouraging it), nonetheless sought to retain the Presidency through constitutional means, not by defying them. Douthat writes, “But one can abuse the powers of the presidency for one’s own political benefit without it being an insurrection or rebellion under the terms of the 14th Amendment.” He adds, “Woodrow Wilson engineered legislation that led to the imprisonment of a political rival; that was wicked and abusive, but it was not insurrection. Richard Nixon covered up an election-year criminal conspiracy against the Democratic Party; that was abusive, but it was not an insurrection. Trump’s scheme to manufacture supposed proof of voter fraud, had it found many more cooperators among Republicans, would have been worse — but ‘worse than Watergate’ is not in the text of the 14th Amendment.”

It is heartening that so many good faith and effective rebuttals of the 14th Amendment disqualification theory—talk about “fantasies”!—have been published, many by progressive-leaning scholars and pundits who have maintained their integrity, or as Rudyard Kipling put it in my father’s favorite poem, kept their heads when all around them are losing their heads. I confess that I lack any respect for the advocates of this clearly contrived excuse to get rid of Trump. Like the partisan political prosecutions he is now battling, the effort to cast the January 6 riot and Trump’s aborted legal schemes to have the election results discredited is closer to an insurrection than anything Trump dreamed of in 2021.