Judge Wallace’s assessment of Mr. Trump’s behavior before and on Jan. 6 was damning, and, notably, she rejected his lawyers’ argument that the First Amendment protected him. His words and actions, she wrote, met the criteria set by the Supreme Court in Brandenburg v. Ohio for distinguishing incitement from protected speech.
“Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” she wrote. “Trump cultivated a culture that embraced political violence through his consistent endorsement of the same.”
Referring to his speech on the Ellipse on Jan. 6, in which he told his supporters that they needed to “fight like hell” and that they were justified in behaving by “very different rules,” Judge Wallace said, “Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder.”
But would he be barred from running for office as if he was, like, an officer of the United States at the time? Like an officer-officer. A guy with an office? Weeeeelllllll....
Color me skeptical*. I always thought the person in the Oval Office was sort of like the CEO of the country. It's an executive office. Trump was the officeholder when all of this went down. It feels like deciding he is responsible, but escapes being treated as an officeholder because of the unique nature of his office is a bit of a cop-out. It's like saying "The buck stops with the president" but you can fling it anywhere but at Trump.
I do like the part where the blame for the insurrection is very solidly laid at his feet though--that's a good start.
*All disclaimers about getting most of my idea about law from television shows pertain.
6 comments:
Obligatory IANAL, but I've heard "Office of the Presidency" and "running for office" too many times to grasp how the President isn't an officer of the United States.
I'm trying to think what else we'd even call the POTUS without it being an "office". It's just like the weird way courts have tried to argue over whether Trump counted as a government employee--well? The holder of the office of the president is entitled to draw a salary and gets benefits. Is a "servant of the people". The idea that the president has anything but an executive privilege of limited scope (and only while in office) feels like exactly the sort of "not a king" powers the Founders would have prescribed.
First, the disqualification clause starts with "No person shall be...". So no question trump is a 'person', loathsome as he is, he's a person. And, he swore an oath to faithfully execute the office of President and "..preserve, protect and defend the Constitution of the United States.” There's an "oath to the Constitution" he apparently violated and was impeached for it. So now what Judge? he wins and he can't take the office? How much of a Constitutional Crisis will that cause? How much complaining and whining from trump should we expect? And who then decides who will take the office of President of the USA?
All these cases where trump isn't going to be removed from the ballot are just the Judges ignoring their own oaths.
Every society has an unwritten constitution that defines and limits the powers by which its govt operates. Some societies, like our own, also have a written constitution. The unwritten constitution always wins in any conflict between the two, precisely because its strictures are the current unspoken consensus. You can't think critically about a given rule that is a tacit, axiomatic assumption, but it's open season even on overt, stated rules, even ones that are often thought of as the axioms of our govt.
By the unwritten constitution, the president is the personal sovereign of the US. Of course no mere subjects, such as the plaintiffs in this case, or even the judge in this case, can raise their hand against the sovereign, so 14.3 simply cannot apply to the presidency.
It's not just this judge in this one 14.3 case. Several other courts have ruled already in 14.3 cases that, for one excuse or another but never the same excuse, they simply don't have the authority to interrupt the majestic progress of a candidate to the sovereignty towards his throne.
It's not just 14.3. We have accepted the unwritten constitutional provision for at least two generations that a president cannot be indicted, no matter what the evidence of no matter how serious the crime, at least not while still in office. Even the current legal action against Trump as former president has been taken with great hesitancy and trepidation.
Sure, a president can always be removed on impeachment, that's right there in the written version. But, quite aside from the difficulty that lock-step partisan loyalty requires towards that party's president making it impossible to get the 2/3 of the Senate needed for conviction, even the other party shies from taking "high crimes and misdemeanors" as it could only have been intended when written into the overt constitution. Taking the clause to mean what it had always meant in the tradition it was drawn form, British constitutional history, any mishandling of the powers of the office, including errors in judgment of sufficient gravity, would have been to assert that Congress actually is what the written document says it is, the president's supervisor, the authority with the duty to review his use of discretion in the conduct in office and then fire him -- completely at their discretion. Oh, no, that's just not possible, no matter what the written version says. "High crimes" means that the only offenses that could possibly justify impeachment are the most serious statutory felonies. "And misdemeanors" has to be a typo. And it's not just the limitation on impeachable behavior to meet some standard not even hinted at by the written standard, oh no, the president would have to have already been convicted of this serious felony by a court of law, because only then would his sovereign person be guaranteed the due process we grant to the lowest dregs of society accuse of crimes. Of course the House and Senate are just some lynch mob, completely incapable and unwilling to provide due process, well, at least in the matter of usurping the sovereign, though we grant them absolute power in decisions that affect the lives of millions of US subjects and foreigners. No need for careful safeguards or due process unless we are approaching the throne of the sovereign, so it's alright to have Congress make decisions at their discretion about the rest of us.
Don't get me started on SCOTUS. The unwritten constitution is even worse on the subject of limiting their power. Our best hope right now seems to be that maybe one reptile, the presidency or SCOTUS, will devour the other, then expire from indigestion.
The judge is claiming that, since the Presidential Oath is not to "support" the Constitution, but to "preserve, protect, and defend" the Constitution, the President isn't barred by the insurrection clause.
This is nonsense. If one is "preserving, protecting, and defending" children found wandering without supervision, one is also "supporting" them. The key word isn't "support," it's "Republican." A Democrat who'd done this would be seen as violating his or her oath, by Republicans. Ah, but a Republican, who remains popular? You can't expect Republicans to do the right thing (or even their actual job) when it might harm their poll numbers.
Hell, ask them why they didn't investigate Trump's kids, when they're so fascinated by Hunter Biden, and they'll even say they didn't because the Democrats were doing it, so why should they do the Democrat's job for them? And that's a good answer, if one believed that duty to a political party's popularity is more important than loyal and honorable duty to one's country.
I think we need to be fair to these judges here. Any local judge who actually ruled correctly, that the law bars Trump from holding office, would be subject to years of death threats, attempted removal and danger to their family. You cannot expect a lower level State judge to expose themselves to that, when you see what has happened to Ruby Freeman, Fani Willis or Lynn Cheney. When the entire Republican contingent in the Senate refused twice to do the right thing, in the face of overwhelming evidence, this country is in a hole that no local judge can dig us out of. Trump's minions can accuse Hillary of eating babies, but Democrats do not even dare mention the real truth that he is a traitor and a sex criminal. We need a much bigger answer to this problem than a State court decision- I just don't know where it is going to come from.
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