To its horror, America witnessed on January 6, 2021, an insurrection. Millions watched, in real time.
Domestic terrorists laid siege to the U.S. Capitol building in an effort to disrupt Congress from performing its constitutional duty to count and certify the Electoral College results. The attempted coup by supporters of President Trump failed, of course, for after a delay of several hours, Congress was able to resume its business in the damaged chambers of the U.S. House of Representatives, and it duly certified the election of Joe Biden, who will assume the presidency on January 20.
Our constitutional democracy, and our reputation abroad as a beacon of liberty—a shining city on a hill that has stood as a model for all nations aspiring to be democratic—took a severe beating. America was knocked to the canvass, shaken by the deadly riots and more acutely aware than ever of the fragility of our democracy.
This was only the second attack on the U.S. Capitol building. The first occurred in the War of 1812, but that was the work of the invading British army. This attack was instigated by the President of the United States, whose seditious rhetoric inspired his followers to lay siege to the temple of our democracy.
At the rally, which he organized, and to which he invited his supporters from across the nation—“it’s going to be wild”—President Trump encouraged the crowd to march on the Capitol. The election had been stolen, he said again, without any evidence, and declared, they have to “fight like Hell.” He told his throng that they needed to march to the Capitol, and that he would walk with them, although he did not. He told them to be strong and to show strength, and to take back their country, which was being stolen from them. Trump lit the match.
The crime of sedition, as old as civilization itself, and embedded in U.S. law from the start, is staggering, for it involves speech that incites revolt or acts of violence against governmental authority. All nations have a right to protect themselves, not only from foreign enemies, but from domestic individuals and organizations that would harm and undercut governing bodies, including Congress.
But sedition is difficult to prove, and rightly so, since the First Amendment provides broad protection, in the name of critically important democratic values such as freedom of speech and press. The question of whether potentially seditious speech is protected, the Supreme Court said in 1969, in Brandenburg v. Ohio, is whether it is advocacy “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Whether President Trump’s speech constitutes sedition will be debated. What happened at the Capitol building was the work of a violent, unlawful mob, committed to obstructing a fundamental constitutional duty. Did Trump inspire them to these ends? This is a serious question that all citizens should address.
But even if President Trump did engage in sedition, it is highly unlikely that he would be prosecuted for it. The US Department of Justice currently labors under an indefensible “policy,” based on a memorandum written by the Office of Legal Counsel in 1973, which declares that the president may not be prosecuted. Recall Robert Mueller’s frustration in his observation that Trump had, at different times, engaged in roughly 10 acts of obstruction of justice, crimes that would typically lead to prison terms for ordinary Americans, but not for the president, given the policy of the Justice Department.
The new Congress, under Democratic control, must write a statute that overrules the conclusion in the OLC memo and provide that the president of the United States, like all citizens, is subject to criminal laws, and may be held accountable for violations. Such a statute would meet the expectations of the framers of the Constitution, who were determined to subject the nation’s chief executive to the rule of law.
The deep concerns surrounding the insurrection, and belief that it was incited by President Trump, has prompted a growing number of both Democratic and Republican officials to call for President Trump’s resignation and, indeed, his removal from office, either through impeachment or invocation of the 25th Amendment.Both remedies face stiff challenges, but pressure to invoke one or the other is likely to increase in the hours and days ahead. We will explore these measures next week.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.