The Supreme Court just handed Trump an astonishing victory

“The Supreme Court ruled on Wednesday that Trump’s DC criminal trial, the one concerning his attempt to steal the 2020 presidential election, must be delayed for at least another two months. The Court already effectively delayed his trial for an additional two and a half months in an order handed down last December.
This order is a colossal victory for Trump, and could potentially allow him to evade criminal responsibility for his attempts to overthrow the 2020 election altogether. Trump’s goal is to delay his trials until after Election Day. Should he prevail in that election, he can then order the Justice Department to drop all federal charges against him.

Trump was able to secure such an order from the justices by exploiting the fact that the federal judiciary ordinarily does not allow two different courts to have jurisdiction over the same case at the same time. So, when a party to a lawsuit or criminal proceeding appeals a trial court’s decision, the trial court often loses authority over that case until the appeal is resolved.

The ostensible reason for the Court’s order putting the trial on ice is that the Court needs that time to consider a weak appeal challenging a ruling by Judge Tanya Chutkan, the judge presiding over his DC criminal trial.

According to Trump, the Constitution forbids any prosecution of a former president for any “official acts” he engaged in while in office. The implications of this argument are astounding, and Trump’s lawyers haven’t exactly tried to hide them. During one court hearing, the former president’s lawyer told a judge that Trump could not be prosecuted even if he had ordered “SEAL Team 6 to assassinate a political rival,” unless Trump were also impeached and convicted by the Senate.”

“Yet Trump has now, with Wednesday’s ruling, leveraged this ridiculous legal argument to delay his DC trial for at least four and a half months, and the delay will likely extend much longer because the Court will need time to produce an opinion. The Court will hear oral arguments in late April.

Simply put, Wednesday’s order is a disaster for anyone hoping that Trump may face trial before the November election. And, because the nominal reason for this order is to give the justices more time to decide if the president is completely above the law, this decision raises serious doubts about whether this Court can be trusted to oversee Trump-related cases in a nonpartisan manner.”

https://www.vox.com/scotus/2024/2/28/24086046/supreme-court-donald-trump-sabotage-delay-dc-trial-judge-chutkan

Who Decides Whether Trump Can Run, and What Sort of Evidence Suffices?

“”The mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force,” Magliocca wrote. Furthermore, the criminal charges against some of the rioters indicated that they “intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government.””

https://reason.com/2023/12/29/who-decides-whether-trump-can-run-and-what-sort-of-evidence-suffices/

What’s the insurrection clause? Here’s what it says.

“Here’s the full text:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Quite a mouthful, right? Let’s simplify. Here’s a streamlined version of the clause with only the most relevant parts highlighted:

“No person shall … hold any office, civil or military, under the United States, … who, having previously taken an oath, … as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same …”

The justices are sure to delve into the precise meaning of those pivotal phrases. For example:

Was the Jan. 6, 2021, attack on the Capitol an “insurrection”? If not, the insurrection clause doesn’t apply.
Even if Jan. 6 was an insurrection, did Trump “engage” in it? If not, he is eligible to hold office again.
When Trump took his oath of office as president, did he take that oath as “officer of the United States”? If not, the disqualification provision does not apply to him.”

https://www.politico.com/live-updates/2024/02/08/trump-supreme-court/what-is-the-insurrection-clause-00140188

Was the Capitol Riot an ‘Insurrection,’ and Did Trump ‘Engage in’ It?

“Trump’s misconduct included his refusal to accept Biden’s victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to “faithfully execute” his office and to “preserve, protect and defend the Constitution.” It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.”

“”At oral argument,” the opinion notes, “President Trump’s counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct.” But the court does not offer “a specific definition” either: “It suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to “hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power” by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.

They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court’s premise that Trump’s hotheaded supporters acted in concert with the intent of forcibly preventing “a peaceful transfer of power.”

Nor is it clear that Trump “engaged in” the “insurrection” that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that “‘engaged in’ requires ‘an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'”

Trump’s pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump’s demand that his supporters “fight like hell” to “save our democracy” literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump “literally exhorted his supporters to fight at the Capitol.”

The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be “marching to the Capitol building to peacefully and patriotically make your voices heard.” But they discount that phrasing as cover for Trump’s actual intent. Given Trump’s emphasis on the necessity of “fight[ing] like hell” to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence,'” which he accomplished by “develop[ing] and deploy[ing] a shared coded language with his violent supporters.”

That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context.”

“The Colorado Supreme Court’s belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both “directed” at inciting “imminent lawless action” and “likely” to do so.

The Colorado Supreme Court quotes the 6th Circuit’s elucidation of that test in the 2015 case Bible Believers v. Wayne County: “The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.”

It is hard to deny that Trump’s speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?

Applying the first prong, the court cites “the general atmosphere of political violence that President Trump created before January 6” as well as the “coded language” of his speech that day. As evidence of the “specific intent” required by the second prong, it notes that “federal agencies that President Trump oversaw identified threats of violence ahead of January 6.” It also cites what it takes to be the implicit message of Trump’s speech and his reluctance to intervene after the riot started.

“President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power,” the court says. “Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended.””

https://reason.com/2023/12/21/was-the-capitol-riot-an-insurrection-and-did-trump-engage-in-it/

Special counsel probe uncovers new details about Trump’s inaction on Jan. 6: Sources

“Special counsel Jack Smith’s team has uncovered previously undisclosed details about former President Donald Trump’s refusal to help stop the violent attack on the U.S. Capitol three years ago as he sat watching TV inside the White House, according to sources familiar with what Smith’s team has learned during its Jan. 6 probe.
Many of the exclusive details come from the questioning of Trump’s former deputy chief of staff, Dan Scavino”

“Sources said Scavino told Smith’s investigators that as the violence began to escalate that day, Trump “was just not interested” in doing more to stop it.

Sources also said former Trump aide Nick Luna told federal investigators that when Trump was informed that then-Vice President Mike Pence had to be rushed to a secure location, Trump responded, “So what?” — which sources said Luna saw as an unexpected willingness by Trump to let potential harm come to a longtime loyalist.

House Democrats and other critics have openly accused Trump of failing to do enough that day, with the Democrat-led House select committee accusing Trump of committing “an utter moral failure” and “a clear dereliction of duty.” But what sources now describe to ABC News are the assessments and first-hand accounts of several of Trump’s own advisers who stood by him for years — and were among the few to directly engage with him throughout that day.”

“According to sources, when speaking with Smith’s team, Scavino recalled telling Trump in a phone call the night of Jan. 6: “This is all your legacy here, and there’s smoke coming out of the Capitol.””

https://www.yahoo.com/gma/special-counsel-probe-uncovers-details-130200050.html

Enrique Tarrio, Proud Boys leader on Jan. 6, sentenced to 22 years for seditious conspiracy

“Tarrio’s sentence closes a significant chapter in the investigation of the Jan. 6 attack. His 22-year sentence is likely to remain the lengthiest for anyone charged in connection with the attack itself — a mark that exceeds the 18-year sentences handed down to Oath Keepers founder Stewart Rhodes and Tarrio’s ally Ethan Nordean.
Prosecutors portrayed Tarrio as a uniquely influential figure who singularly organized a group of hardened Proud Boys members and aimed them at the Capitol on Jan. 6. They said his sentence had to serve as a deterrent to anyone who might target America’s system of government in the future.

“He was on a tier of his own,” said Assistant U.S. Attorney Conor Mulroe. “This was a calculated act of terrorism.””

“Tarrio also apologized to police officers, lawmakers and D.C. residents for the carnage of Jan. 6.

“I had the choice multiple times to calm things out and I didn’t. I persisted when I should have calmed,” he said.”

https://www.politico.com/news/2023/09/05/sentencing-enrique-tarrio-proud-boys-00114095

Proud Boys who led march to Capitol get two of the lengthiest sentences since Jan. 6 attack

““That day broke our tradition of peacefully transferring power,” said U.S. District Court Judge Timothy Kelly as he delivered Biggs’ sentence. “The mob brought an entire branch of government to heel.””

“Kelly, an appointee of Donald Trump, agreed with prosecutors that the crimes committed by Biggs and Rehl amounted to an act of terrorism aimed at influencing the government. In Jan. 6 cases, that distinction had until Thursday been applied only to members of the Oath Keepers who were similarly convicted of seditious conspiracy or obstruction.

Kelly spoke at length about his decision to apply the terrorism label and how the Jan. 6 attack compared to other, more stereotypical acts of terrorism that involve mass casualties or bombings.

“While blowing up a building in some city somewhere is a very bad act, the nature of the constitutional moment we were in that day is something that is so sensitive that it deserves a significant sentence,” Kelly said.

The judge, however, did not use the terrorism designation to sharply increase his sentences for Biggs and Rehl. Doing so, he said, would result in an overly harsh punishment because the terrorism enhancement is primarily geared to actions with an “intent to kill” — which he did not attribute to Biggs or Rehl.

The sentences are an important marker in the fraught aftermath of the Jan. 6 attack. Prosecutors, who had asked for a 33-year sentence for Biggs and 30 years for Rehl, said they and their co-conspirators were the driving force behind the violence that unfolded that day, facilitating breaches at multiple police lines and helping the crowd advance into the building itself. A jury convicted the five Proud Boys of multiple conspiracies in June, after a four-month trial that recounted their actions in painstaking detail.

Prosecutors urged Kelly to severely punish Biggs and Rehl as a way to deter others who might consider similar actions in the future aimed at disrupting the government.”

“Prosecutors say the group amassed a force of 200 hand-selected Proud Boys and marched them to the Capitol, where many of them skirmished with police or removed barriers intended to keep the crowd at bay. Nordean and Biggs were convicted of dismantling a black metal fence that was one of police’s last obstacles before the crowd reached the building.”

“When Trump told supporters on Dec. 19, 2020, to amass in Washington, D.C., on Jan. 6, Tarrio and the Proud Boys leaders quickly responded and began assembling a new chapter that they described as a group of more disciplined and obedient men who would follow their orders. That group, which they dubbed the “Ministry of Self-Defense,” became the core of the group that descended on the Capitol on Jan. 6.”

“During Rehl’s sentencing, Pattis more squarely put the blame for the riot on Trump, saying many in the crowd were simply following his instructions and had no reason to doubt their commander in chief. Pattis mused that it seemed unfair for Rehl to be charged with seditious conspiracy while Trump was not.”

https://www.politico.com/news/2023/08/31/joe-biggs-proud-boys-leader-gets-17-year-prison-sentence-for-role-in-jan-6-attack-00113641

Opinion | Why Trump Was Indicted (Again)

“the notion that Biden or Garland was somehow determined to prosecute Trump relies on a serious distortion of the public record. Indeed, that record vexed some observers, including me, who repeatedly expressed frustration over how the two men seemed to be going out of their way for most of the first two years of the administration to avoid investigating and potentially prosecuting Trump.
What changed?

The best explanation at the moment — the one that most neatly fits the available facts and a robust body of credible reporting — is that the work of the Jan. 6 select committee spurred the Justice Department to action.

The committee’s investigation uncovered new and important information that was impossible to ignore, and their hearings last summer generated intense and legitimate political and public pressure on DOJ and Garland. Ultimately, it appears that they no longer had a choice but to shift course”

“As the hearings unfolded, there was testimony from former Attorney General Bill Barr, Trump 2020 campaign manager Bill Stepien and other Trump administration officials and campaign advisers indicating that Trump knew he had lost the 2020 election even as he began his monthslong campaign to overturn the results. There was firsthand testimony about the legally baseless effort to pressure then-Vice President Mike Pence to throw the election to Trump that featured White House lawyers and Pence advisers. There was also a hearing, among others, devoted to Trump’s personal efforts to pressure — or threaten — state officials to swing their election results to him.

Given the one-sided nature of the committee’s presentation, there were reasons to question whether all of the testimony provided the full picture of the underlying events. Still, it quickly became apparent that the committee had exposed some glaring shortcomings at the Justice Department. A series of stories last summer in the New York Times and the Wall Street Journal reported that senior officials at the Justice Department were not aware of critical evidence that the committee had obtained, and in fact had been trying to avoid directly confronting Trump and his potential criminal liability. Meanwhile, some of us were complaining (again) that the department seemed to be falling short of its duty to the country, and members of the media and the public began asking much harder questions about the department’s actions — or lack thereof.”