Scott Tibbs
January 6, incitement and the Fourteenth Amendment
By Scott Tibbs, February 28, 2024
As I wrote at the time, January 6 was
a sad and embarrassing day for America. Posting clips of protesters peacefully wandering the Capitol Building cannot erase and should not make us forget the dangerous acts of a mob chanting "hang Mike Pence," breaking windows,
smearing their
own feces everywhere, trying to break down doors and assaulting police officers.
It is also reasonable to conclude that Donald Trump had been deeply irresponsible in the weeks leading up to the riot, that he used needlessly inflammatory rhetoric, and that he did not act quickly enough to tell the rioters to stand down and go home. What Trump did not do was incite a riot or an "insurrection" on January 6. He explicitly told the crowd to "peacefully" protest the certification of the election, and he did tell them to stop rioting. Trump's encouragement to "fight like Hell" is boringly normal political rhetoric that has been used by both sides for generations.
Removing Trump from the ballot via judicial fiat, absent an actual conviction for incitement, is a dangerous attack on the First Amendment. Remember, Trump has not even been
charged with incitement or insurrection. Trump's haters might argue the Fourteenth Amendment is "self executing," but there is nothing in that amendment that indicates the Fifth Amendment right to due process has been eliminated in the case of an "insurrection."
We should not forget that members of Congress who merely
voted against certifying the election have been fraudulently labeled "insurrectionists." If the mere act of casting a vote against certification is an "insurrection," why do we have a vote at all? Why are the results certified by the state governments not automatically accepted? Charging people with crimes for
voting the "wrong" way is what totalitarian regimes do.
Trying to remove Trump from the ballot, and criminally prosecuting him for the terrible events of January 6 sets a dangerous precedent that could well eviscerate free speech surrounding elections. This is aimed at Trump right now, but it was not that long ago that the elections of George W. Bush were hotly contested by some Democrats. If Trump is re-elected in November and there is any violence at all by "Antifa," Trump could easily use the precedent Democrats are using right now to criminally prosecute Democrats, and Republican states could retaliate by banning prominent Democrats from appearing on the ballot.
January 6 was messy, violent and an embarrassment to our country. I understand the desire for "accountability," but we should not tear down the First Amendment and the Fifth Amendment to do that. Those who are outraged by January 6 and want to keep Trump out of the White House have a remedy that is readily available to them: Voting against Donald Trump and encouraging others to do the same. Going too far with criminal prosecutions and ballot removal for First Amendment protected activity, though, creates a backlash that motivates Trump supporters and turns off persuadable voters.
Speaking of going too far and provoking a backlash, Trump is not helping himself with his response to the prosecutions. He could make the argument that he advocated peaceful protest (with admittedly spicy language) and some people acted without his approval, but he has instead posited the theory that he has "total presidential immunity," or TPI. Does he actually believe this? I doubt it. Most likely, this is a negotiating tactic. He is setting up the TPI position as the baseline, and then negotiating down from there. That way, he sets the terms of the negotiation to get a better deal.
The problem with this is twofold: First, that's now how the law works. Second, it damages him politically and makes him look wacko. This is not trying to buy property, build a casino or negotiate a path for legislation to get through Congress. This is both a political and legal battle, and Trump's strategy fails on both fronts.
There is also a psychological element to Trump's demand for immunity. Trump believes that once you take a stand, you can never admit you are wrong, even if you are obviously wrong. Instead, you double down and triple down. Admitting any wrong shows "weakness." None of this is me approving of this strategy or agreeing with Trump. I am analyzing and explaining how he thinks.
As I have made clear by this point, I am not a supporter of Donald Trump. I believe he has made it clear that he does not deserve a second term, due to his character, increasingly unhinged rants, and significant moves to the Left on policy - especially in the area of fiscal responsibility and entitlement reform. But the place to decide who will occupy the Oval Office on January 20, 2025 is not the courts, the criminal justice system or renegade election officials. The place to make that decision, as always, is at the ballot box. By trying to short-circuit that process, Democrats are proving that they are the true enemies of democracy.
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