Tag Archives: Day of Rage

The January 6 Video Tapes

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Republicans are having hysterical conniption fits about the thousands of hours of January 6 security tapes recently released. They seem to have three main claims:

    1. The FBI infiltrated the mob that desecrated the Capitol [https://tinyurl.com/56ydb6hf], and
    2. The Capitol Police welcomed the mob and facilitated their entry into the Capitol, and
    3. The Capitol Police and others defending the Capitol were mean to the desecrators attacking them – they “beat them” bigly, according to, among others, Donald Trump

I have a few observations to offer those Republicans.

First, regarding the FBI, if it’s true that there were many FBI agents on the scene, wonderful. That means they expected trouble and when it came, they were on the scene doing their job. Now, to be sure, I don’t know whether the tapes actually establish that FBI agents were in the mob, or how the tapes could possibly do so, but the FBI certainly should have been there. The claim is there were at least 200, but all of this appears to be based on an unverified suspicion, without evidence, that FBI agents sent “ghost buses” full of agents dressed as Trump supporters, that the FBI “infiltrated” websites, social media accounts, and online chat groups “related to people who discussed “objections to COVID oppression.” Further, again without evidence,

when you track the text threads and the communications within those groups, and find the origins of suggestions of potential violence or an act of occupation of the Capitol on January 6, you’ll find that those messages were led by members of the groups and ended up to be the FBI agents that had infiltrated the group.

These are the ravings of Rep. Clay Higgins (R-La.) in a private “news” site under the name, American Military News, reporting on an interview Higgins gave to Newsmax, a cable news outlet so far right it fell off the flat earth. They ignore entirely the speech Trump gave on January 6 and his thoroughly documented refusal to call off the mob and stop the violence. Many of the convicted desecrators testified they believed they were simply answering the call and direction of their leader, Donald Trump, whose every word they believed.

Second, the Day of Rage video from the New York Times (https://tinyurl.com/242urbtu) and many others make clear that the attack started at the outer perimeter of the Capitol, that the mob attacked and overwhelmed the under-staffed and under-prepared Capitol Police before they approached, entered and desecrated the Capitol building.

Third, there are indications of Capitol Police, in most cases individuals facing massive numbers of violent intruders, failing to fight the mob inside the building. To the extent those officers failed to do their duty, they should be appropriately disciplined. But it’s likely that they decided resistance at that point was futile and that a more passive approach might be more effective than fighting a losing battle against an overwhelming and angry mob. This issue has, I believe, been addressed within the force, as it should be. It is no excuse for the behavior of the mob. The Republican claim amounts to, “the attack was the police’s fault because they didn’t fight back hard enough.”

Fourth, every member of the mob had the option at almost any time to turn around and walk away. The excuse of “I was swept up in the passion of the moment” is a child’s excuse. Any thinking adult could have seen the obvious: the mob was out of control, violence was occurring everywhere, police were being attacked (“support the Blue? Sure, but not today). Note also the conflict between “the Capitol Police welcomed the intruders” and “the Capitol Police violently beat the intruders.” I have commented before on the ability of Republicans to believe as simultaneously true two inconsistent concepts.

Fifth, the Republican hysteria fails to account for the role of the Proud Boys and other right-wing groups, many of whom were armed (Trump knew this and was furious that his instruction to remove the security apparatus to keep armed people away from his speech stage) and the massive evidence of what actually happened on January 6.

Sixth, and finally, the multitude of convictions resulting from trials and guilty pleas by mob participants so far (“More than 1,202 defendants have been charged in nearly all 50 states and the District of Columbia”), are conclusive evidence that many violent crimes were committed by the mob. You can see the latest data here: https://tinyurl.com/yry4jn2t

So, Republicans, you can continue whining about how the big bad police beat up on your band of fools or you could try, just once, facing reality. Trump incited an insurrection to overturn the 2020 election. Those who attacked the Capitol on his behalf deserve everything that is happening to them. And Trump belongs in prison. The End.

The Answer is Blowin’ in the Wind

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Those of you close to my generation will recognize that phrase as part of the refrain from Bob Dylan’s famous song that became a 1960s anthem against oppression and war. The song was made broadly famous by Peter, Paul & Mary, singing it here in 1966: https://bit.ly/3J6WK2w Joan Baez, among others, sang it in 1967: https://bit.ly/3SHSEB8

The lyrics to that song came immediately to mind when I read the report that the Department of Justice has, at long last, rejected Trump’s claims to be above the law. DOJ filed a brief arguing that Donald Trump’s claims of “absolute immunity” from civil suits must be limited at least regarding the January 6 abomination he sent to descrate the Capitol  https://bit.ly/3moh3jm

You know the story: Trump summoned the mob to DC and incited them to attack the Capitol to stop the final certification of Joe Biden’s electoral victory. True, he mentioned in passing that they should be peaceful, but that was classic Trump. Say one thing, then the opposite again and again. He also said, for example, “if you don’t fight like hell, you’re not going to have a country anymore.” His message was received loud and clear as evidenced by what the mob did. One of the many remarkable videos was produced by the New York Times, showing exactly what happened: Day of Ragehttps://nyti.ms/3mlhISw Many of those later arrested have testified under oath that they understood Trump had invited them to Washington and urged them to do just what they did.

Those revelations can come as no surprise to anyone with a fully functioning mind. Recall that Trump famously said, “I have Article II where I have the right to do whatever I want as president.” It’s on tape. He said it. He believed it. Still does. Often wrong, but never in doubt.

As recounted in the USAToday story, a group of House Democrats filed two civil suits and two Capitol police officers filed the third one. USAToday reports that Trump’s lawyers have argued to the Court of Appeals for the District of Columbia Circuit that, “The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern? … The answer is undoubtedly, yes.”

The Department of Justice rejected that position: “The district court also correctly rejected President Trump’s categorical assertion ‘that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit.’”

Let’s briefly examine the “absolute immunity” claim. Let’s pretend you’re in law school. You adopt Trump’s position that he was addressing the election results, a “matter of public concern” and thus just “doing the job of the president.” He should, you contend, be immune from vexatious and meddlesome civil suits [law students love to talk like that] that could interfere with his ability to carry out his many constitutional responsibilities.

Having adopted the role of professor of law, I hook my thumbs in my vest [law profs love vested suits, or did back in the day], frown, pace a bit, spin, and face you: “That sounds pretty good, doesn’t it? Don’t we have to protect the nation’s chief executive and chief law enforcement officer from being hauled into court every time he says something that someone doesn’t like? Isn’t it true that someone always objects to virtually everything the president, any president, says?”

You smirk at having been recognized as oh-so-clever as to receive that rare law school commodity: praise from a professor. You are sure the other students are burning with envy at your achievement and recognition.

Then I, thumbs out of the vest now, lean forward closer to you, and you start to get a queasy feeling. I glare into your eyes and ask, “but suppose the president’s January 6 speech included this statement:

…and if you meet resistance from police at the Capitol, just knock them down, beat the hell out of them. Anybody gets in your way, kill them. I don’t care, but get the job done. Safe our country! Save meeee!

President still immune? Suppose Trump further said, “Mike Pence, the vice president I mistakenly chose to elevate from well-earned obscurity, failed to do his job. He needs to be set straight. Punished if he won’t do what needs to be done. If he refuses to comply, I say, Hang Mike Pence! Repeat after me, Hang Mike Pence! Hang Mike Pence!”

You spend the rest of class looking at your shoes, wondering why you didn’t just get a job.

You think back to Trump’s penchant for lying and making outrageous claims, then, when called out for it, saying, “oh, that? I was just joking.” On January 6, his followers knew he wasn’t joking. They understood exactly why he summoned them and what he wanted them to do.

The claim of “absolute immunity” is utterly implausible in a country with a democratic republican Constitution that sets up a three-part balance of power structure in which each of the three main branches acts as a check on the other two. It makes for complex problems and many troublesome questions, to be sure. Democracy is “messy,” according to a popular formulation. But one thing is clear: no man is above the law.  A president who incites violence in an effort to interfere with constitutionally mandated processes designed for the peaceful transfer of power must be held accountable by those directly harmed by his conduct.

Now, to return to our law school conceit for a bit longer, some will argue that the proper method for holding the president accountable is impeachment and nothing more. Impeachment certainly would work … if it worked. But Trump was impeached twice and not convicted because the Republican members of Congress refused to hear all the evidence, refused even to hear witnesses, and announced they would support him even before the “trial” occurred. Republicans thus made that constitutional process a sham.

It follows that the inherently political process of impeachment is not sufficient to hold a president accountable for inciting violence that harms not only the democratic system but individual citizens as well. Therefore, there must be another remedy.

To paraphrase Trump, if you don’t hold a president accountable for inciting insurrection, you’re not going to have a country anymore.

Now to conclude today’s lesson, let’s look at the broader implications of the position taken by the Justice Department. Despite what I’ve said above, I have little hope that the courts are going to agree with the Department of Justice. I am especially doubtful that the 6-Justice conservative majority on the Supreme Court, where the case is inevitably headed, is going to hold the president accountable as DOJ has proposed.

However, many observers, the writer included, have repeatedly expressed frustration that the Attorney General was going to let Trump skate despite his many crimes. While this set of civil cases is a far cry from a criminal indictment, the position taken by Justice signals that even its relatively conservative approach to “presidential law” has its limits. It may also signify that the Special Counsel appointed to independently investigate Trump’s many crimes has more juice behind his mandate than first appeared. Hope that it is so because our survival as a democratic republic depends on it. The answer, my friends, is blowin’ in the wind.

 [Pedagogical Note: in law school, the professor rarely jumped from one proposition you thought was right to the death blow to your sense of self-worth. Instead, they usually proceeded in small steps, slowly sucking the life out of what you thought was the intellectually plausible content of your thoughts, then delivering the coup de grace at the end. I have collapsed the dialogue in the interest of time and space. It was always worse.]