If It Was an Insurrection, Why Hasn’t Anyone Been Charged with ‘Insurrection’?

It doesn't matter what I believe. It only matters what I can prove.

Trump supporters try to break through a police barrier, Wednesday, Jan. 6, 2021, at the Capitol in Washington. As Congress prepares to affirm President-elect Joe Biden’s victory, thousands of people have gathered to show their support for President Donald Trump and his claims of election fraud. (AP Photo/John Minchillo)

In separate posts this morning, Dave Schuler observes,

1. January 6, 2021 was significant and the actions of those who breached the Capitol were wrong.

2. All of those involved should be prosecuted to the full extent of the law.

3. I think it’s important to distinguish between a reasonable revulsion at the events and partisan posturing or battlespace preparation.

4. There’s a lot of the latter going on.

Just as with 9/11 practically nothing has been learned since the breaching of the Capitol. It’s a terrible commentary on us.

and muses,

So far none of the 700 some-odd individuals who have been charged with crimes in connection with the January 6, 2021 breaching of the Capitol has been charged with insurrection. Does the same standard apply to the election and the breaching of the Capitol? If not, why not.

If so, there was no insurrection and claiming there was is mischievous.

My sensibilities here are similar to Dave’s in that we both believe Biden clearly won the election, that the events of a year ago went well beyond lawful protest, and that there is a lot of hysteria and grandstanding going on.

While I quickly embraced the “insurrection” label, it didn’t take me long to come to the conclusion that what happened that day was not a single event but a series of overlapping ones: insurrectionists legitimately hoping to overturn the election/seat the person they believed the rightful winner via violence; violent extremists using the mob to engage in mayhem with little interest in the election results; Trump supporters who came to demonstrate and got caught up in the frenzy of the riot; and yahoos, most of them Trump supporters, who went into the Capitol after the barricades had been abandoned who went in for shits and giggles and to take selfies for social media. The exact extent of the relationship between them still remains unclear to me.

I have therefore long been using “riot” as a blanket term to describe what happened and have gone to great pains to distinguish between the conduct of individual cases, usually based on incomplete media accounts.

As to “why hasn’t anyone been charged with insurrection (or treason, or sedition, or whathaveyou)?” the answer is that our lay use of these terms differs from the legal standards and burdens of proof associated with them.

So, for example, I have maintained since the earliest days that Trump is morally and politically guilty of inciting the riots and should have been impeached (which he was), found guilty (which he predictably wasn’t), and shunned (which is true for roughly the half of Americans who opposed his reelection). At the same time, I have simultaneously maintained that he almost certainly hasn’t met the extremely high bar the Supreme Court has set for charging him with criminal incitement.

So it is with insurrection. And we’ve known that since the beginning.

The folks at The Marshall Project put out “A Civilian’s Guide to Insurrection Legalese” on January 8, 2021–less than two days after the events in question.

Treason

Treason is unique: It is the only crime defined by the U.S. Constitution rather than by the laws that Congress has passed in the centuries since. The Founders intentionally described it narrowly, so that any repressive future president could not use it to punish political opponents. There are only two ways to commit this offense, they said: “levying war” against America or “giving aid and comfort” to one of the nation’s enemies—typically a foreign adversary.

Over the years, the Supreme Court and Congress have further narrowed the scope of what constitutes treason: To be guilty, you must have the specific intent to betray the U.S. on behalf of an enemy and then commit an overt act of such betrayal. Given the prevalence of American flags on the Mall this week and the rioters’ chants of “U.S.A.! U.S.A.!”—however malicious their deeds—it would be nearly impossible for prosecutors to prove their goal was treasonous.

[…]

Sedition

On Wednesday, President-elect Joe Biden said that some of what unfolded at the Capitol “borders on sedition.”

This term has a long, complex history; wartime legislation passed in the late 1700s and early 1800s used the concept to criminalize any criticism of the government’s actions, leading to thousands of prosecutions, sometimes just for writing a pamphlet. These laws were unpopular, especially when they were used to target people who posed no physical threat, and they were eventually repealed or struck down.

Today, the U.S. criminal code defines sedition as part of a broad category that includes treason. The actual crime is called “seditious conspiracy.” This involves using—or planning to use—physical force against the U.S. government, as well as efforts to “seize, take, or possess” government property, or “delay the execution of any law of the United States” by force. The punishment can be up to 20 years in prison.

[…]

Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, has already told the Detroit Free Press that more “seditious conspiracy” charges may result from the Capitol takeover, and legal experts told the newspaper that interrupting the counting of electoral votes clearly violated the ban on delaying the execution of U.S. law. Other federal prosecutors around the country have made similar statements.

Insurrection

“What happened here today was an insurrection,” said Sen. Mitt Romney, Republican of Utah, on Wednesday night.

Insurrection also falls under the same suite of federal laws as sedition, and the two can be difficult to distinguish. But it is charged by federal prosecutors far more rarely—almost never in American history. It means, essentially, to incite, assist in or engage in a full-on rebellion against the government: a step beyond just conspiring against it, and requiring that significant violence be involved.

Cliven Bundy, a Nevada rancher, mounted an armed standoff with the federal government in 2014—his son, Ammon Bundy, did the same in Oregon in 2016—on the basis of an explicitly anti-U.S. government philosophy. Still, prosecutors did not charge them with insurrection, which legal experts say is nearly impossible to prove in court.

Rioting

A riot is a protest that turns violent, which clearly happened this week. The criminal charge of rioting, though, is often pursued under state law.

Federal prosecution can result if a person traveled from another state to be part of a riot, or used interstate communications (internet, phone, etc.) to plan it. A riot that takes place on U.S. property, which includes the Mall and the Capitol building, is also subject to federal jurisdiction.

The Trump administration has repeatedly charged Black Lives Matter protesters and others expressing dissent in the streets with “rioting.” Whether Trump supporters who rioted on federal property, after crossing state lines in cars and buses, will be prosecuted in the same way will test whether the law is being enforced equitably, regardless of race or ideology.

Incite/incitement

President Trump has faced accusations of “inciting” violence at least since his first presidential campaign in 2016, when he obliquely suggested that people with guns use them to attack his opponent, Hillary Clinton. This week, he was accused again, based on his urging an angry crowd to march toward Congress and “fight.” His lawyer, Rudy Giuliani, also encouraged “trial by combat” at the rally.

At the same time, Trump’s statements to crowds have often been interpreted as legal, because the First Amendment’s guarantee of free speech sets a very high bar for what words can be criminalized.

In 1969, Ku Klux Klan leader Clarence Brandenburg made a speech at an Ohio rally. “If our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken,” he said. Brandenburg was fined and sentenced to prison under Ohio state laws. But the U.S. Supreme Court overturned his conviction, saying that such speech couldn’t be punished unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The “Brandenburg test”—also known as the “incitement test”—has been used repeatedly to protect speakers across the political spectrum who stop short of offering what one ACLU lawyer has described as an “immediate roadmap for violence.”

There are DOJ officials who have been quoted in the press as saying that seditious conspiracy charges are justifiable in some instances. And they may well be.

The legal process, alas, is slow. We have processed hundreds of cases but, for the most part they’re the simple ones: the simple assaults, simple trespass, and the like. They’re pleading out and getting, with rare exception, mild sentences. A handful have gotten significant prison time.

In this morning’s open forum, a commenter posted a link to a Raw Story report headlined “‘To save America’: Jan. 6 rioters networked in advance, planned to storm the Capitol and fantasized about hanging lawmakers for ‘treason’.” I find it somewhat overwrought and sensationalized, being a little too cute with sleight-of-hand. But it details real evidence of the most serious parts of the Capitol Riot I pointed to earlier (“insurrectionists legitimately hoping to overturn the election/seat at the person they believed the rightful winner via violence; violent extremists using the mob to engage in mayhem with little interest in the election results”).

I suspect that we’ll see very serious criminal charges forthcoming against the worst of the worst: the Proud Boys, Oath Keepers, and other “militia” types intent on violence. Maybe we’ll see sedition charges. I doubt we’ll see insurrection charges; they’re just too hard to prove.

And, alas, I continue to seriously doubt enough evidence will emerge for the Attorney General to charge former President Trump himself.

UPDATE: The Lawfare gang remind me that the Attorney General spoke on this matter yesterday. He spells out much of what I’ve said above emphatically:

Only a small number of perpetrators were arrested in the tumult of January 6th itself. Every day since, we have worked to identify, investigate, and apprehend defendants from across the country. And we have done so at record speed and scale — in the midst of a pandemic during which some grand juries and courtrooms were not able to operate.

Led by the U.S. Attorney’s Office for the District of Columbia and the FBI’s Washington Field Office, DOJ personnel across the department — in nearly all 56 field offices, in nearly all 94 United States Attorneys’ Offices, and in many Main Justice components — have worked countless hours to investigate the attack. Approximately 70 prosecutors from the District of Columbia and another 70 from other U.S. Attorney’s Offices and DOJ divisions have participated in this investigation.

So far, we have issued over 5,000 subpoenas and search warrants, seized approximately 2,000 devices, pored through over 20,000 hours of video footage, and searched through an estimated 15 terabytes of data.  

We have received over 300,000 tips from ordinary citizens, who have been our indispensable partners in this effort. The FBI’s website continues to post photos of persons in connection with the events of January 6th, and we continue to seek the public’s assistance in identifying those individuals.

As of today, we have arrested and charged more than 725 defendants, in nearly all 50 states and the District of Columbia, for their roles in the January 6th attack. 

In charging the perpetrators, we have followed well-worn prosecutorial practices. 

Those who assaulted officers or damaged the Capitol face greater charges.

Those who conspired with others to obstruct the vote count also face greater charges.

Those who did not undertake such conduct have been charged with lesser offenses — particularly if they accepted their responsibility early and cooperated with the investigation.

In the first months of the investigation, approximately 145 defendants pled guilty to misdemeanors, mostly defendants who did not cause injury or damage. Such pleas reflect the facts of those cases and the defendants’ acceptance of responsibility. And they help conserve both judicial and prosecutorial resources, so that attention can properly focus on the more serious perpetrators.

In complex cases, initial charges are often less severe than later charged offenses. This is purposeful, as investigators methodically collect and sift through more evidence. 

By now, though, we have charged over 325 defendants with felonies, many for assaulting officers and many for corruptly obstructing or attempting to obstruct an official proceeding. Twenty defendants charged with felonies have already pled guilty. 

Approximately 40 defendants have been charged with conspiracy to obstruct a congressional proceeding and/or to obstruct law enforcement. In the months ahead, 17 defendants are already scheduled to go to trial for their role in felony conspiracies.

A necessary consequence of the prosecutorial approach of charging less serious offenses first is that courts impose shorter sentences before they impose longer ones.

In recent weeks, however, as judges have sentenced the first defendants convicted of assaults and related violent conduct against officers, we have seen significant sentences that reflect the seriousness of those offenses — both in terms of the injuries they caused and the serious risk they posed to our democratic institutions.

The actions we have taken thus far will not be our last.

The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.

Because January 6th was an unprecedented attack on the seat of our democracy, we understand that there is broad public interest in our investigation. We understand that there are questions about how long the investigation will take, and about what exactly we are doing.

Our answer is, and will continue to be, the same answer we would give with respect to any ongoing investigation: as long as it takes and whatever it takes for justice to be done — consistent with the facts and the law.

[…]

We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.

Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

But most important, we follow the facts — not an agenda or an assumption. The facts tell us where to go next.

My general instinct in these matters is to fear overzealousness of prosecution, in that there is enormous pressure to bring charges after the expenditure of so much time and money. And that it’s generally a bad thing when the essentially unlimited resources of the state are unleashed against citizens. Thus far, at least, the process has struck me as methodical and, with the exception of the standard sentencing disparities based on the luck of the draw of judicial assignment fair.

Regardless, I have every confidence Garland and his Department are focused on the task at hand and determined to punish to worst offenders.

The aforementioned Lawfare gang, Quinta Jurecic, Andrew Kent, and Benjamin Wittes, have this to say:

It’s hard to say exactly what to make of this statement. It could imply trouble for political leadership that engaged and encouraged the rioters, or the operatives who organized the event itself. Or it could, in the alternative, mean that the Justice Department is continuing aggressive investigations of groups like the Proud Boys and Oath Keepers, some of whose members have already faced conspiracy charges in relation to the riot. In the case of both of these groups, a number of key leaders who were not physically involved in the violence themselves remain unindicted, despite evidence that they were in contact with those who were. Or perhaps the department might also be considering unveiling charges of seditious conspiracy or “rebellion or insurrection,” statutes weighted with political significance that the Justice Department has not yet made use of when it comes to Jan. 6.

[…]

Articulating the values that guide him is valuable. We argued previously that Garland needed to speak publicly about his vision for the department precisely because so many Americans are unfamiliar with the norms governing its work. Here, he is doing just that. 

But it is also frustrating to someone looking for any kind of guidance about where this is all heading. It would be a gross overreading of what Garland said-and didn’t say-to think that the public learned anything yesterday about whether the Justice Department is criminally investigating anyone in political leadership for a supposed role in encouraging the insurrection, much less whether such people might face charges. This point includes, but is not limited to, former President Donald Trump. On all such matters, Garland remained silent.

While unsatisfying, it’s likely correct. While Wittes and I have defended former FBI Director James Comey’s unusual speech explaining why he didn’t prosecute former Secretary of State Hillary Clinton in the matter of her emails, we have seen the backlash it caused. It’s likely better to have an impatient public annoyed that, a year later, no major charges have been leveled than to further politicize this mess. With the person who defeated Trump in charge of the Executive Branch and a man whose rightful place on the Supreme Court was taken away by Republican hijinks in charge of the prosecution, we don’t need to add even more fuel to that fire.

FILED UNDER: Crime, Democracy, Law and the Courts, , , , , , , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. flat earth luddite says:

    IANAL, but this strikes me as a clear, well-reasoned explanation for anyone who doesn’t understand that life is not an episode of Law and Order. (or, gods forbid, Chicago PD). This will take time to prosecute everyone that is going to be prosecuted. I only hope that America holds together long enough for us to see that justice occurs.

    11
  2. Stormy Dragon says:

    And, alas, I continue to seriously doubt enough evidence will emerge for the Attorney General to charge former President Trump himself.

    1/6 is going to keep happening until either this is no longer the case or Trump is successful in overthrowing the government.

    6
  3. John430 says:

    As to “why hasn’t anyone been charged with insurrection (or treason, or sedition, or whathaveyou)?” the answer is that our lay use of these terms differs from the legal standards and burdens of proof associated with them.

    No shit, Dick Tracy. It took you a year to figure that out and post it?

    2
  4. Jay L Gischer says:

    Given what we now know, it is clear and apparent that Trump attempted to reverse the outcome of a legally conducted election. This is a betrayal of America, to the core idea of America, of the highest order.

    I do not think it wise or prudent to get bogged down in legal definitions. This is a discussion, a blog, not a court. Perhaps in what Trump did, he managed to avoid legal charges. That’s exactly what this kind of person does. Keep themselves clean, let others do the dirty work and go to jail for you. But it doesn’t matter, what happened is on his shoulders. Completely.

    And frankly, we need to be bold in public. It’s fine to understand legal definitions and skirt them. AND, we need to be direct and bold in what we say about him. (And yes, I think both Steven and James have done so!) There is no retreat. This was a betrayal of America.

    6
  5. Matt Bernius says:

    @John430:

    No shit, Dick Tracy. It took you a year to figure that out and post it?

    So, after a year, you finally summon up the testicular fortitude as a past Trump supporter to post something about this riot and it’s a snarky attack at the host of this blog trying to unpack a particular topic.

    You, as always, are a profile in Republican/Conservative courage.

    BTW, I forget, is your current position on 1.6:
    (a) I support it because the election was stolen
    (b) It really was antifa
    (c) I’m pretending it didn’t happen and plan to vote for Trump again if he runs in 2022
    (d) It was just a bunch of peaceful real patriot tourists

    Because so far it appears that it might be:
    (e) I’m pretending it didn’t happen because I know it was really bad and that’s why I never comment on it.

    Extra points if you actually respond to this (versus going silent again).

    Extra-extra points if you have a coherent response that doesn’t attempt to handwave 1/6 away with references to BLM protests.

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  6. James Joyner says:

    @John430: Smart people are literally still asking the question this morning! (There’s also an op-ed at WSJ this morning but I don’t subscribe and it’s paywalled.)

    @Jay L Gischer: Right. The problem is that people are using the lack of prosecutions as proof that people using terms like “incitement” and “insurrection” are political grandstanding. I don’t like “insurrection” for other reasons, as noted in the post.

    7
  7. grumpy realist says:

    I’ve always suspected that the main reason the Founding Fathers put the definition of “treason” into the Constitution was because they saw what mischief had occurred in European history by the collapse of the hierarchy of treasons outlined in Roman Law….(Also the tyranny of allowing a ruler to define treason as he pleased, cough cough bloody English government….)

  8. Matt Bernius says:

    @Jay L Gischer & @James Joyner:
    100% agreed that we’re in a situation where colloquial and expert language are crashing into each other. On a similar note are discussions about the use of “Autogolpe” versus “Coup.” While I think these are useful to have, they also risk allowing specific details to get in the way of the broader conversation.

    I also want to second something James wrote:

    The legal process, alas, is slow. We have processed hundreds of cases but, for the most part they’re the simple ones: the simple assaults, simple trespass, and the like. They’re pleading out and getting, with rare exception, mild sentences. A handful have gotten significant prison time.
    […]
    I suspect that we’ll see very serious criminal charges forthcoming against the worst of the worst: the Proud Boys, Oath Keepers, and other “militia” types intent on violence. Maybe we’ll see sedition charges. I doubt we’ll see insurrection charges; they’re just too hard to prove.

    This is 100% the case. What we are watching unfold is most likely the largest ongoing investigation in the history of the Justice Department (ultimately larger than 9/11 due to the sheer number of participants). And this is happening while other unrelated cases are still being investigated and moving forward.

    That’s why to date it’s largely been the lowest hanging fruit. Additionally, due to the high-profile nature of the investigation, there is a bias towards moving slower because–if those higher-profile cases go to trial, and many will–they need to make sure they are able to make the charges stick. Again, saying this as someone who is often critical of prosecutorial overreach, this is a good thing.

    4
  9. Dude Kembro says:

    There is a 0% chance that if Jan 6 had involved brown Muslims in turbans instead of white people in MAGA hats anybody would call it anything but a terrorist attack and its perpetrators anything but terrorists.

    The reason the white terrorists in MAGA hats aren’t being charged with insurrection is the same reason they weren’t mowed down in a hail of gunfire (like an angry, violent mob of black and brown Capitol stormers would have been) and were instead allowed to return to their homes where citizen sleuths had to do the FBI’s job in ID-ing them.

    It’s the same reason why too many good white men who should know better have, predictably and as usual (see Hillary’s emails), fallen for Republican spin downplaying the terror attack and accusing those who see it with clarify of hysteria and grandstanding.

    It’s the same reason why a black or brown Kyle Rittenhouse would never be allowed to be caught on video beating a girl, and saying of rioters “Bro, I wish I had my f-g AR, I’d go shoot some people,” then menace a crowd with said AR-15, kill those who bravely tried to disarm him, pose with Proud Boys flashing white power signals — only have a chorus of white folk insist his actions were justified.

    That reason is white privilege. Or white nonsense. Take your pick.

    13
  10. CSK says:

    @John430:
    I believe the proper phrasing is :”No shit, Sherlock.”

    You’re welcome. Or, as a true MAGAite would write it: “Your welcome.”

    9
  11. Just Another Ex-Republican says:

    It is baffling to me that it apparently isn’t obvious that Trump’s behavior at the 1/6 rally clearly passes the Brandenburg test and is incitement.

    …the U.S. Supreme Court overturned his conviction, saying that such speech couldn’t be punished unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

    Stopping the vote counting is clearly a lawless action, he incited it by telling his followers to march and make sure Pence knew he better not certify the election, and it was clearly imminent (mere hours after his speech ended). In any rational population this wouldn’t even be a debate. Of course, this is the US, so we are screwed.

    4
  12. Joe says:

    At the same time, I have simultaneously maintained that he almost certainly hasn’t met the extremely high bar the Supreme Court has set for charging him with criminal incitement.

    There’s a young man named Shamar Betts sitting in jail in Illinois who has some questions for you on that statement.

    1
  13. Just nutha ignint cracker says:

    @John430: No, actually not. In fact, I recall him reminding us of it more than once early in the evolution of the story and being asked words to the effect of why he was carrying water for traitors. Easy to forget these days with community memory being measured in picoseconds.

  14. Stormy Dragon says:

    Because January 6th was an unprecedented attack on the seat of our democracy, we understand that there is broad public interest in our investigation. We understand that there are questions about how long the investigation will take, and about what exactly we are doing.

    The problem is that Garland may not have “as long as the investigation will take”.

    4
  15. Just nutha ignint cracker says:

    The reason the white terrorists in MAGA hats aren’t being charged with insurrection is the same reason they weren’t mowed down in a hail of gunfire…

    THIS! 🙁

    5
  16. Scott F. says:

    Seditious conspiracy seems the most applicable actual crime. IANAL, but it seems to me that the element of “conspiracy” would allow implicating some of the instigators beyond those dupes who actually breached the Capitol.

    And while “seditious conspiracy” doesn’t roll off the tongue as easily, I think it works as a better blanket term for what happened on and before the day than either “insurrection” or “riot.”

  17. dazedandconfused says:

    @Just Another Ex-Republican:
    The last thing Trump said to his mob was “Go peacefully”. You might convict a poor man despite of that, but not someone with millions to spend on the finest lawyers.

    According to Navarro’s revelations on Bannon’s “Green Bay Sweep” plan, he would not want the Capital over run. The plan was to have insiders working the thought while a mob raging outside, hopefully affecting the decision making process on the many Republicans in the House and Senate who weren’t buying in. There were quite a few, notably Pence.

    The 187 minutes tells us Trump may have liked seeing it happen, but it’s unlikely he planned it that way. I hope to find out what the plan’s mastermind, Bannon, was doing during that 187 minutes.

    2
  18. Just nutha ignint cracker says:

    It’s the same reason why too many good white men who should know better have, predictably and as usual (see Hillary’s emails), fallen for Republican spin downplaying the terror attack and accusing those who see it with clarify of hysteria and grandstanding.

    Speaking of which…https://www.msn.com/en-us/news/politics/tucker-carlson-mocks-ted-cruz-republicans-for-saying-jan-6-was-a-violent-terrorist-attack

    The lede (??):

    After Sen. Ted Cruz (R-Tex.) on Wednesday described the Jan. 6 riot as “a violent terrorist attack on the Capitol,” GOP strategist Karl Rove urged Republicans nationwide to reflect on the first anniversary and show their patriotism by offering “no absolution for those who planned, encouraged and aided the attempt to overthrow our democracy.”

    But on Fox News, Tucker Carlson not only mocked the idea that the storming of the Capitol was an insurrection but also accused Cruz and other Republicans of “repeating the talking points that Merrick Garland has written for them.” The attorney general earlier Wednesday vowed to hold accountable all those responsible for the Jan. 6 riot — whether they were at the U.S. Capitol or committed other crimes surrounding the day’s events.

    “Every word Ted Cruz uses is used intentionally. He’s a lawyer,” Carlson said Wednesday night. “He described Jan. 6 as a violent terrorist attack. Of all the things Jan. 6 was, it was definitely not a violent terrorist attack. It wasn’t an insurrection. Was it a riot? Sure. It was not a violent terrorist attack. Sorry! So why are you telling us that it was, Ted Cruz?… What the hell is going on here?”

    The question: What IS going on here? Has Cruz discovered that the well of the GQP is so poisonous that not even HE wants to drink from it? Has his soul (does he have one) received an awakening from the God he’s claimed to be a servant of? Has he figured out he’s not going further in MAGAtland and is tacking now? Is he donning his blue “Faithful American from Day One” hat and trying to blend in to avoid being named in a later indictment (fat chance THAT would happen)?

    Anybody got an explanation for a po confused cracker?

    5
  19. Matt Bernius says:

    @Joe:

    There’s a young man named Shamar Betts sitting in jail in Illinois who has some questions for you on that statement.

    Unfortunately, after reviewing the case of Shamar Betts as documented in The Intercept (https://theintercept.com/2020/10/30/federal-prosecutors-protests-pretrial-detention/), there’s a world of difference between the two cases.

    Sadly for him, Betts more or less committed the cardinal sin of doing the prosecution’s work for them. Through a variety of social media channels, he documented his participation in this, including clear and direct calls to action, and later took responsibility for the event on social media. In that respect, he’s much closer to the people currently being charged.*

    As a number of sources have repeatedly explained (I always suggest the now sadly defunct “All the President’s Lawyers” or Lawfaire), despite many of our wishes, that simply isn’t the case with Trump. Additionally, the political nature of the address (and the various speaker’s status as public individuals) also offers them protections that Betts doesn’t have access to.

    And, perhaps most important, the status of Trump as President (at the time) offers a lot of protection. It doesn’t completely prevent prosecution, but from the AG’s office they also have to take into consideration Omar Little’s sage advice: “If you come at the (former) King, you better not miss.”

    Based on the evidence made public to date, they don’t have a no-miss case. And taking that shot and missing could be far worse than not taking it at all.

    * – I’m not going to comment on the merit of the case. Simply the evidence against him made it really, really easy to get that conviction.

  20. Just nutha ignint cracker says:

    @CSK: I went with him choosing Dick Tracy because he couldn’t remember the actual cut but remembered it involved a detective–Dick Tracy being the only name that came to him under the circumstances.

    1
  21. Just nutha ignint cracker says:

    @Joe: Young Mr. Betts was black and the event he was involved in was small by comparison (IIRC) and involved crimes against the property of owners of capital and/or their commercial agents, so I’m not quite understanding your confusion. [eyeroll] There’s really no comparison at all.

    In addition, he apparently admitted his role.

    1
  22. Sleeping Dog says:

    @Stormy Dragon:

    Digby linked to a John Dean tweet pointing out that it was ~950+ days between Nixon’s resignation and the conviction of the final Watergate conspirator. His expectation is that DoJ will be thorough and will get those culpable.

    3
  23. Sleeping Dog says:

    @Just nutha ignint cracker:

    It is positioning for a post-Trump R party. Cruz and any number of other R’s with presidential aspirations want to see TFG out the door. Rove is untouchable, due to his age, so the trumpists will mostly ignore him. Cruz maybe making the calculated decision that getting rid of TFG needs to start with someone who is a sycophant pushing and a benefit will accrue to those who push first.

    1
  24. MarkedMan says:

    @Just nutha ignint cracker:

    Has Cruz discovered that the well of the GQP is so poisonous that not even HE wants to drink from it?

    F* no! Cruz wants to run for President in 2024 and needs Trump out of the way. Full stop.

    2
  25. Kathy says:

    If you set aside the legal niceties in favor of moral clarity, you wind up with “”What’s in a name? That which we call a putsch by any other name etc. etc.”

    2
  26. Daryl and his brother Darryl says:

    @John430:

    No shit, Dick Tracy. It took you a year to figure that out and post it?

    Just this afternoon one of the top intellectual leaders of the Republican Party, M. T. Greene (Q-GA), raised this very question about insurrection, as well as domestic terrorism.
    Hint: Timothy McVeigh was not charged with, nor executed for, domestic terrorism. But he sure the fuq was a domestic terrorist.

    5
  27. Daryl and his brother Darryl says:

    @Sleeping Dog:
    That is certainly a valid point. However 950 days would put us perilously close to the end of Biden’s term and the potential for a new POTUS and a new AG who would put an immediate halt to the investigation even if it’s not Trump. There is definitely time pressure on this.
    Also, Watergate was a far different animal. It was all covert. We all watched this crime happen in realtime.
    I continue to think a major sticking point in this investigation is that once you start pulling on the thread you will find a good portion of the Republican party is implicated.
    McCarthy.
    Cruz.
    Hawley.
    Jordan.
    Gosar.
    Brooks.
    Cawthorn.
    Greene.
    Boebert.
    Finding someone with the balls to hold a huge portion of the GQP accountable won’t be easy. I’m convinced Garland doesn’t have the attachments. Imagine seeing all of them perp-walked like an old-time mafia sweep.

  28. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:
    I’ve got a handle of good bourbon that says @John420 screamed “no collusion” for months.

  29. Dude Kembro says:

    @Daryl and his brother Darryl:

    Timothy McVeigh was not charged with, nor executed for, domestic terrorism. But he sure the fuq was a domestic terrorist.

    Louder, for those in the back who should know better but are still helping Republican spin and downplay.

    4
  30. dazedandconfused says:

    @Just nutha ignint cracker:

    I look forward to Ted’s weaseling apology to Tucker. Will he blame it on his kids, like the trip to Cancun??

    1
  31. Just nutha ignint cracker says:

    @dazedandconfused: 😀 😛 😀 😛

    1
  32. gVOR08 says:

    @Just nutha ignint cracker: I’ve been of the opinion since Cheney started acting (emphasis on acting) reasonable that she sees her main chance as finding an anti-Trump lane against the 20 or so pro-Trumpers we can expect to see going after the 2024 GOP nomination. It’s odds against, but possibly better odds than being one of the crowd of pro-Trumpers. Cruz may have similar thoughts and think he can elbow his way into the reasonable (sic) Republican lane with Cheney.

    1
  33. Just nutha ignint cracker says:

    @gVOR08: Okay, but how is controlling a half-dozen votes gonna win either of them the nom? It’s even worse if they split the bloc, such as it is.

    1
  34. Lounsbury says:

    @Dude Kembro: Woke tone deafness is how one should write it. Only the Left woke would be so completely foolish to render this a racial idententarian issue, virtually handing the MAGA agit-prop angles.

  35. john430 says:

    @Daryl and his brother Darryl: Timothy McVeigh was not charged with, nor executed for, domestic terrorism.

    True, but the term “domestic terrorist” hadn’t been coined or in public use then. Is there a point in there somewhere?

  36. John430 says:

    @Matt Bernius: Extra-extra points if you have a coherent response that doesn’t attempt to handwave 1/6 away with references to BLM protests.
    I’ll take the extra-extra points and refer you to the Federalist article noting 8 times leftists stormed federal or state government buildings. Then you can take your complaint and upstuff it asswards.

  37. Turgid jacobian says:

    @dazedandconfused:
    Oh man it was so much funnier

  38. matt bernius says:

    @John430: Johnny boy, I’ve had to explain this to you time and time again, but whataboutism isn’t an answer to a direct question. But hey try again.

    Why is it that you can never actually tell us what you actually believe? It has to feel crappy to not be proud enough to say that. But hey, based on what I can tell from your non-answers, I’d be ashamed to share my sorry beliefs as well.