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this post was submitted on 29 Dec 2023
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Politics
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The irony here is that Trump and the Republicans worked really hard to stack the SCOTUS with originalists, because that tends to play well with a conservative Republican agenda.
But it also upholds the Insurrection Act. Remember that SCOTUS may be conservative, but they’re not all Republican lackeys. In order to decree this unconstitutional, SCOTUS would have to make a majority decision that what Trump did doesn’t fall under insurrection. I can see them wanting to stay out of THAT one completely, refusing to make a finding that would create SCOTUS precedent; that means they would leave these decisions in place in order to preserve future flexibility.
No, they wouldn't. They would just have to accept a due process argument, essentially that the opinion of a CO state judge is not the appropriate venue or process for determining if someone is an insurrectionist. Probably calling for either Congress or criminal courts to establish that.
This is notably different than the CSA, as CSA officers were openly and publicly members of an organization that openly and publicly waged a war against the US.
What do you call storming an election certification and killing a cop?
I'm not arguing that Jan 6 isn't an insurrection. I'm arguing that Trump was too much of a pussy to openly and publicly lead it himself.
His speech at the rally that came before the march that came before the attack almost certainly is 1A protected speech and not incitement in part because the bar for incitement in the US is extremely high. Virtually anything short of "Hey you, go do this crime right now!" fails to be incitement.
He beat feet before the next part happened though. You can't point to him openly and publicly leading the insurrection, because he didn't - he probably organized and arranged it but not in a way that there is no question of fact. There's a whole chain of steps necessary to get from random in the Capitol on Jan 6 to Trump, and most of those intermediate steps are not in the open.
There was no question of fact with the CSA officers blocked from holding office though - they were public officials in an organization engaged in open war against the union.