No, Flynn’s Martial Law Plot Isn’t Sedition. But It’s Not Necessarily Legal Either.

“Flynn had recently appeared on the far-right outlet Newsmax suggesting that Trump could order “military capabilities” to “rerun an election” in swing states, and that “[m]artial law has been instituted 64 times.” Meanwhile, Arizona GOP Chair Kelli Ward urged Trump to “Cross the Rubicon” and impose martial law to claim an election that the Electoral College, not to mention several dozen court rulings, has now certified he lost.

Public reaction to Flynn’s “coup” proposal — which he’d shared previously through a press release on Twitter from the right-wing group “We The People” (tagline: “Freedom never kneels except for God”) — have been furious and damning.”

“There’s a buffet of sedition statutes (18 U.S.C., sections 2383 through 2385) which have some potential relevance here. Section 2383 makes it a crime to incite or assist in a rebellion against the United States or give comfort to those who incite an insurrection. Section 2384 carries a 20-year jail term for seditious conspiracy, which requires an agreement between two or more people to “overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States.” The third provision, 2385, makes it a crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States.” The statute goes on to criminalize the intentional publication or circulation of any printed matter advocating the desirability of overthrowing the U.S. government. (Thirteen states also have their own laws banning “criminal anarchy.”)

Historically, sedition laws have been used to target critics of the government, and some of those prosecutions have run afoul of First Amendment protections. But the First Amendment does not uniformly protect speech if it incites violence.

Was Flynn inciting violence by proposing the military be used to seize voting machines? During the now-infamous Oval Office meeting, chief of staff Mark Meadows and White House counsel Pat Cipollone protested vehemently, but were there two or more people in agreement to overthrow the government? Was Flynn’s social media campaign a violation of the rule against circulating any printed matter advocating the overthrow of the government?

This is where the current sedition laws begin to seem inadequate to the task of responding to Flynn’s unprecedented proposal.

First, there is the problem of “sedition against what?” Usually, it’s the sitting government, which means that one could make a strong argument that it’s impossible for Trump to be involved in a seditious conspiracy so long as he’s the sitting President. Second, no one has ever been successfully prosecuted under the sedition statutes for exhorting a sitting president to perform an illegal act, with or without the president’s connivance.”

“The First Amendment protects free speech, but in 1969 the Supreme Court held in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis mine.)

Martial law is not mentioned in the Constitution. Nor is it authorized by any act of Congress. The Supreme Court has never directly held that the federal government has the power to impose martial law. Although the Insurrection Act allows the president to use armed forces to “suppress” an insurrection and restore immediate law and order upon the request of a state legislature or governor, an 1878 law called the Posse Comitatus Act otherwise forbids the use of the military for domestic law enforcement. A criminal statute puts members of the military who prevent or attempt to interfere with voters “exercising the right of suffrage” at risk of going to prison for up to five years.”

Mitch McConnell and Several Other GOP Senators Finally Acknowledge Biden’s Victory

“Rep. Paul Mitchell (R–Mich.), a retiring congressman who congratulated Biden on November 7, announced yesterday that he was “disaffiliating from the Republican Party” out of disgust at its humoring of Trump’s increasingly desperate explanations for losing the election. “The president and his legal team have failed to provide substantive evidence of fraud or administrative failure on a scale large enough to impact the outcome of the election,” Mitchell wrote in a letter to Republican Nation Committee Chair Ronna McDaniel. “It is unacceptable for political candidates to treat our election system as though we are a third-world nation and incite distrust of something so basic as the sanctity of our vote….If Republican leaders collectively sit back and tolerate unfounded conspiracy theories and ‘stop the steal’ rallies without speaking out for our electoral process, which the Department of Homeland Security said was ‘the most secure in American history,’ our nation will be damaged….With the leadership of the Republican Party and our Republican conference in the House actively participating in at least some of these efforts, I fear long-term harm to our democracy.””

Trump’s Election Conspiracy Theory Requires Followers To Join Him in an Alternate Universe

“notwithstanding a long series of disappointments for litigants trying to demonstrate that the presidential election was illegitimate, culminating in two unanimous rejections by the Supreme Court last week. According to a recent Fox News poll, 68 percent of Republicans and 77 percent of Trump voters believe “the presidential election was stolen.”

Some of those Trump fans may simply be signaling their loyalties or giving the response they think will irk the president’s enemies. But unless Trump supporters are perpetrating an elaborate gag nearly as sophisticated and complex as the baroque conspiracy he blames for denying him a second term, there are a lot of true believers out there.

Believing Trump requires accepting his claim that election officials across the country—possibly aided by a long list of co-conspirators that includes George Soros, the Clinton Foundation, and several foreign governments—used fraud-facilitating voting machines to give Joe Biden an edge, then switched to manufacturing “hundreds of thousands” of phony paper ballots when the original plan fell short. It also requires believing that pro-Trump news outlets, Republican election officials, Republican members of Congress, Trump-nominated judges and justices, the Department of Homeland Security, and Trump’s own attorney general helped conceal that conspiracy by casting doubt on the president’s charges or obstructing his efforts to overturn the election.

The alternative to buying all that is to conclude that Trump has refused to admit defeat, whether for personal or political reasons, and has therefore resorted to increasingly desperate explanations for Biden’s victory. That hypothesis is consistent with everything we know about Trump, including his disdain for the truth, his enormous yet fragile ego, and his allergy to accepting responsibility.

It is also consistent with the chasm between Trump’s assertions and the claims his campaign has made in court. In a 46-minute Facebook rant earlier this month, Trump complained that “even judges so far have refused to accept” that he won the election—hardly a niggling detail, since courts are the forum where Trump had to support his charges with credible evidence.

Trump thinks the Supreme Court “chickened out” when it declined to hear Texas Attorney General Ken Paxton’s lawsuit seeking to overturn the election results in four battleground states. The justices simply “didn’t want to rule on the merits of the case,” the president avers.

Yet state and federal judges have ruled on the merits of Trump’s legal arguments and rejected them, often in blistering terms. Equally telling, the Trump campaign’s lawsuits have failed even to allege the sort of vast criminal conspiracy he describes in speeches and tweets—possibly “because there are legal consequences for lying to judges,””

‘Seditious abuse of the judicial process’: States reject Texas effort to overturn Biden’s election

“Officials from four presidential swing states forcefully criticized an effort by Texas and President Donald Trump to enlist the Supreme Court to overturn Joe Biden’s victory in the presidential election, with Pennsylvania calling the last-ditch legal effort “seditious” and built on an “absurd” foundation.

“The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,” Pennsylvania said in a 43-page brief signed by Attorney General Josh Shapiro and his deputies.

“In support of such a request, Texas brings to the Court only discredited allegations and conspiracy theories that have no basis in fact,” the attorneys wrote. “Accepting Texas’s view would do violence to the Constitution and the Framers’ vision.”

The briefs from Pennsylvania, Georgia, Michigan and Wisconsin — states targeted in Texas’ lawsuit, brought by Attorney General Ken Paxton, which Trump is attempting to join — directed their fury largely at Paxton. And they pleaded with the justices to reject the suit out of hand, warning that anything else would give states unprecedented power to sue each other to enforce their will, leading to waves of partisan retribution that shake the foundations of federalism.”

“Texas’ lawsuit drew skepticism even among Republicans on Capitol Hill, who have broadly been supportive of the president’s efforts to undermine faith in the democratic system. Some Texas GOP lawmakers, including Sen. John Cornyn, raised questions about the merits. Rep. Chip Roy called it “a dangerous violation of federalism,” and House GOP leader Kevin McCarthy twice dodged questions about whether he backed the legal effort.

However, a group of 106 House Republicans signed a friend of the court briefing, arguing the defendant states acted illegally and that their electors should be prevented from voting.”

Trump unleashes an army of sore losers

“Trump, it seems, isn’t the only dead-ender holding out more than a month after the election, refusing to acknowledge defeat. Even as Trump lost again in court on Friday, with the Supreme Court rejecting a long-shot effort to overturn the election, he remains a lodestar for denialists of the GOP.

In California, a Republican congressional candidate trounced in Democratic-heavy Los Angeles is still refusing to concede — while simultaneously announcing he’s running for governor. In Maryland, a congressional candidate beaten by more than 40 percentage points is still complaining about “irregularities” in her election. And in Tennessee, a House candidate defeated by more than 57 percentage points has reached out to the ubiquitous pro-Trump lawyer Sidney Powell to air her grievances about an election that no Republican had any chance of winning — but that she’s convinced she did.

The down-ballot parroting of Trump’s baseless claims of widespread voter fraud began right after the election. But in the weeks since, it has evolved into a self-sustaining phenomenon of its own. Republican candidates for House, legislative and gubernatorial races in more than half a dozen states are still refusing to concede.

Echoing the president, these candidates are an early sign of what Republicans say will be a sustained, post-Trump effort to tighten voting restrictions and to reverse measures implemented in many states to make voting easier. They also may mark the beginning of a Trump-inspired trend of candidates who never fold — they just fade away after weeks and months of unsubstantiated allegations of fraud.”

“On Friday, after the Supreme Court’s rejection of an effort to overturn the presidential election, Webber suggested on Twitter that even the court’s action was a sign of something sinister.

“That’s how you know it’s deeper than anyone could have ever imagined,” he said.”

LC: This could lay the groundwork for further deterioration of democracy.

Study: Trump’s tweets can lead Republicans to lose faith in elections

“President Donald Trump’s tweets attacking the legitimacy of the 2020 presidential election might not sway the outcome — but they might sway Americans’ faith in democracy.

A study by political science researchers from Stanford and five other universities found that exposure to those tweets “erodes trust and confidence in elections and increases the belief that elections are rigged among his supporters.” However, among those who oppose the president, the study found that their trust in elections actually increased after seeing his tweets, albeit by a slightly smaller magnitude.”

“people’s self-reported views may have less to do with their actual opinions and more to do with staying in line with their party. Previous research has shown that survey respondents often follow partisan cues: Politico, for instance, found that Republicans’ and Democrats’ views on whether the economy was improving flipped after Trump’s 2016 win, but that those shifts in reported attitudes only sometimes affected people’s actual behavior.”

What Trump’s Refusal To Concede Says About American Democracy

“the sitting president’s refusal to acknowledge electoral defeat is worrisome, as it raises the prospect that he will not uphold a core tenet of democracy: Elections determine who is in power, and those who lose surrender power peacefully. The behavior of top Republican Party officials — subtly acknowledging that Trump must leave office on Jan. 20 but not openly rebuking his conduct — in some ways also violates that core value. And the combination of Trump’s and his party’s behavior raises a serious question: Is America’s democracy in trouble?

Maybe. People who study democratic norms and values both in the United States and abroad say that the behavior of Trump and the Republican Party over the past week deeply concerns them. Dartmouth College political scientist Brendan Nyhan says it’s important not to think of democracy in binary terms — that either a nation is or is not a democracy. Instead, Nyhan argues, democracy falls more on a spectrum, and based on how Trump broke with democratic values as president and how he is handling the end of his presidency, America does remain a democracy, but it is somewhat less democratic than it was pre-Trump.”

“Not only is Trump blocking his advisers from helping the incoming Biden administration get ready to deal with the pandemic, but the defeated president has largely disengaged from the COVID-19 crisis himself. In terms of managing the virus, America will be functionally without a president for two months.

We can’t totally rule out the most alarming possibility either — that Trump is going to try to stay in office past Jan. 20. After all, he has mobilized some key parts of the federal government and the Republican Party behind his efforts to question and undermine the election results.”

“It’s hard to know the answers to these questions. Democratic values are almost certain to be upheld this time — that is, the election determined who will be in charge, and the transfer of power will ultimately be peaceful. But it’s not totally clear that these values will be upheld the next time a Trump-like figure emerges. American democracy is likely to survive Trump, but his tenure has raised important questions about the state of America’s democracy and whether it will endure in perpetuity.”

The American right’s favorite strongman

“After winning Hungary’s 2010 election, the prime minister systematically dismantled the country’s democracy — undermining the basic fairness of elections, packing the courts with cronies, and taking control of more than 90 percent of the country’s media outlets. He has openly described his form of government as “illiberal democracy,” half of which is accurate.

Since the coronavirus, Orbán’s authoritarian tendencies have only grown more pronounced. His allies in parliament passed a new law giving him the power to rule by decree and creating a new crime, “spreading a falsehood,” punishable by up to five years in prison. The Hungarian government recently seized public funding that opposing political parties depend on; through an ally, they took financial control of one of the few remaining anti-Orbán media outlets. In May, the pro-democracy group Freedom House officially announced that it no longer considered Hungary a democracy.”

“Religious conservatives find Orbán’s social policies to be a breath of fresh air. Orbán has given significant state support to Hungary’s churches, officially labeling his government a “Christian democracy.” He provided generous subsidies to families in an effort to get Hungarian women to stay at home and have more babies. He launched a legal assault on progressive social ideals, prohibiting the teaching of gender studies in Hungarian universities and banning transgender people from legally identifying as anything other than their biological sex at birth.

Conservative nationalists focus on the Hungarian approach to immigration and the European Union. During the 2015 migrant crisis, Orbán was the most prominent opponent of German Chancellor Angela Merkel’s open borders approach; he built a wall on Hungary’s southern border with Serbia to keep refugees from entering. He has repeatedly denounced the influence the EU has on its member states, describing one of his governing aims as preserving Hungary’s national character in the face of a globalist onslaught led by Brussels and philanthropist George Soros.

For Western conservatives of a religious and/or nationalist bent, Orbán is the leader they wish Donald Trump could be — smart, politically savvy, and genuinely devoted to their ideals. Hungary is, for them, the equivalent of what Nordic countries are for the American left: proof of concept that their ideas could make the United States a better place.

Yet while the Nordic countries are among the world’s freest democracies, Hungary has fallen into a form of autocracy.”

“Orbán and much of his inner circle are lawyers by training; they have used this expertise to set up a political system that looks very much like a democracy, with elections and a theoretically free press, but isn’t one. This gives intellectually sympathetic Westerners some room for self-delusion. They can examine Hungary, a country whose cultural politics they admire, and see a place that looks on the surface like a functioning democracy.”

“If these thinkers continue to insist that Hungary is just another democracy — despite copious evidence to the contrary — how can we expect them to call out the same, more embryonic process of authoritarianism happening at home? If American conservatives won’t turn on a foreign country’s leadership after it crosses the line, what reason would we have to believe that they’d be capable of doing the same thing when the stakes for them are higher and the enemies more deeply hated?”

Clearing Out Lafayette Park for Trump’s Church Photo Op Was Wrong, Even If Cops Didn’t Use Tear Gas

“On Monday, President Trump left the White House, walked across Lafayette Park—where rioters burned a public restroom the night before—and posed in front of St. John’s Episcopal Church while holding a Bible. This photo op was made possible by U.S. Park Police, who cleared overwhelmingly peaceful protesters from the area using aggressive crowd control tactics.

People are now debating whether those tactics included the use of tear gas, which swiftly became central to the mainstream media coverage of the incident, and a focal point of criticism from former Vice President Joe Biden. Multiple on-the-ground reporters said they suffered the effects of tear-gassing—burning in the throat and eyes—but Park Police have emphatically denied this, claiming that officers fired canisters of smoke rather than tear gas. It’s hard to know for sure what happened, but it seems plausible that the protesters directly in front of Lafayette Park were, in fact, hit with smoke.

Whether the Park Police used tear gas or smoke matters because the truth always matters. If media reporting on that detail was wrong, they should correct their reporting. But whatever kind of canister was fired into the peaceful crowd, the most important point is that the entire episode was completely unacceptable. Law enforcement officers who harass peaceably assembled citizens are violating the First Amendment, whether or not they use tear gas.

Park Police have claimed they didn’t know of Trump’s plans to walk to the church, and that they began clearing the area prior to the curfew going into effect because protesters were throwing water bottles at them. Reports on the ground suggest some throwing of objects, but also tons of protesters instructing the throwers to stop it immediately. Multiple things could be true here, of course: The police might not have known precisely why they were instructed to push the protesters back, but if Trump had his heart set on walking to St. John’s, the cops were going to have to move the protesters to accommodate him. That the scene on ground was more complicated than it may have appeared is not an excuse for voiding the right to protest. ”

“It was morally wrong to disperse protesters at 6:30 p.m., and it would have been wrong to disperse them at 7:05 p.m.—curfew or not. Public officials at every level of government are making arbitrary decisions about whether such-and-such activity should stop being practiced in such-and-such manner and at such-and-such time. These excuses for violating civil liberties are just not compelling.”

“By all means, let’s pursue the truth of exactly what happened outside Lafayette Park. But let’s not get lost in the weeds along the way. The government’s rough handling of protesters—not rioters and looters, but citizens engaged in constitutionally protected demonstrations against police violence—is unlawful. It’s immoral. And it’s making things worse.”

It Wasn’t Tear Gas. It Was a Gaseous Substance That Causes Tears.

“No, President Donald Trump didn’t have police shoot tear gas at innocent people so he could pose for a pic with an upside-down Bible. Both the president and his lackeys at certain media outlets want to make sure we’re clear on that. You see, the truth is that Trump had police bombard a law-abiding crowd with a gaseous substance that produces tears.

You see the difference? Not really? It doesn’t matter. We’re talking about this right now, and that’s what Trump boosters and predator-cop stans want. The more time people spend debating the difference between tear gas and “smoke canisters and pepper balls,” the less focus on the fact that the Trump administration had peaceful citizens attacked so he could pretend on camera to be brave and religious.

This is the same tactic we’ve seen again and again from the Trump administration: deny, shift stories, and quibble over inane particulars.

It doesn’t matter if most media or even most Americans don’t really buy the administration’s deflections and lies. The point is to shift the public conversation, give Trump supporters an easy retort to critics, and to present enough reasonable doubt that folks not especially attuned to politics tune out. Getting people to see this as just another far-removed partisan squabble is essential to covering up the heinous and extreme nature of the stunt the administration pulled in Lafayette Square.”

“Trump folks want to pretend that masses of individual protesters and members of the press were lying, in coordination, to trick people into thinking the administration behaved worse than it did. But the fact of the matter is that being tear-gassed and being bombarded with a pepper-spray bomb produce the same effects, and people were reporting on what they had experienced and witnessed directly.

Accuracy in media matters, of course, and Reason has often been the first to point out when most press is getting a story wrong. But reporting accurately and truthfully means doing the absolute best you can with the facts that are available to you, admitting what you don’t know, and updating your narrative when new information arrives. And it certainly doesn’t mean describing things in exactly the terms that government officials or other powerful people prefer you to use.

The Trump administration might not want to call the substance law enforcement agents deployed “tear gas.” But under the common understanding of tear gas—”an umbrella term for about a half-dozen so-called ‘riot-control agents’ or ‘less lethal’ chemical weapons” per Mother Jones—and according to the Centers for Disease Control and Prevention’s definition, it was.”