The Amar brothers have filed a very fine amicus brief in the Supreme Court’s review of the Trump disqualification case, styled Trump v. Anderson. The argument is aimed squarely at ‘originalists’ by recovering critical history that shaped Art. 3 of the XIVth Amendment.
Here’s a portion of the summary:
Underlying Section Three of the Fourteenth Amendment, there resides […] an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned. The episode has gone almost unmentioned in all previous scholarship on Section Three and in all previous briefing in this case. We believe that this episode is a key that can unlock many of the issues presented by today’s case.
In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case.
Today’s facts are remarkably similar to those of the First Insurrection of the 1860s.
(Italics in original.)
President Franklin D. Roosevelt described December 7, 1941 as “a date which will live in infamy” in his speech the day after the Japanese attack on Pearl Harbor. 12/7 was a date seared into the memory of those who lived through it, although I think not nearly as meaningful to those who like me were born considerably later. Even infamy may have a half-life, and I suspect that today most people look at ‘Pearl Harbor Day’ on the calendar and don’t think that much of it.
We of the current generations have two dates of our own that live in infamy at least for now: 9/11 and 1/6. What these dates have in common with 12/7 is that they all represent thankfully rare dates on which the United States was attacked. But 1/6 isn’t quite like the others. The attack was from within not from a foreign power. And the evocative power of that date seems less universal, as some have taken to downplaying the significance of the sacking of the Capitol, and of the attempt to set aside the results of the Presidential election.
The January 6 Commission Report sought to nail down the history and to protect the popular memory, and the polity, from they-were-just-tourist revisionists and Big Lie conspiracists. In this, the Committee members were only partly successful, although the (multiple) juries are not just still out, but not even empaneled, as the Trump legal team tries to delay a formal reckoning of his and his associates’ conduct.
Here’s hoping the evocative power of those dates will fade with time in a normal, healthy way rather than being erased by lies or enshrined as the beginning of the end of the ‘American experiment’.
My brother Dan is very good at piercing through social niceties. Sometimes this can be a very good thing, as in his column today, at Press Watch, How much of Trump’s support is due to racism?.
Here’s a small taste:
There is one theory that fully explains the massive support that Trump continues to get among the Republican voting base: That they’re racist.
To be clear, this is a theory, not a conclusion.
But it’s certainly a likely enough theory that the mainstream media should be testing it to see if it’s true rather than avoiding the topic like the plague.
When mainstream journalists do address racism, they do so with euphemisms and denials. These days that means they understate the racist rhetoric from Trump and other leading Republicans, and they actively cover up the racism of his supporters and make excuses for them.
They don’t ignore racism entirely. What they do is worse: they normalize it.
The Washington Post, for instance, had a long, overdue front-page article on Sunday about how Trump and his fellow GOP candidates are taking overtly racist positions – except get this: They substituted the word “polarizing” for racist.
But there’s more, and even better, where that came from.
My brother, the journalist and now journalism watchdog, had a great idea:
Donald Trump took the stand on Monday in his civil fraud trial in a Manhattan courtroom.
But because television cameras were not allowed inside, the public was only given a filtered look at the proceedings, through the eyes of journalists whose takes varied considerably. Without the ability to record audio, reporters were unable to capture longer passages and exchanges.
Precisely what went on in that courthouse should not be shrouded in mystery. So I tracked down the court reporter working that day, and purchased from her the full transcript. (I raised the money to do so through a GoFundMe. Thank you to all who contributed!)
And now I’m making it public, for all to see. Feel free to download and repost.
You can read Trump’s trial testimony online or read Trump’s trial testimony in PDF.
Thank you, Dan!
At Press Watch my brother drops the results of an intensive investigation into the Jan. 6 committee documents and more in The story no one wants to touch: Why the Capitol Police enabled 1/6:
The news media’s continuing failure to explore why the U.S. Capitol was so scantily defended against an angry horde of white Trump supporters on Jan. 6, 2021, has now been compounded by the House select committee’s refusal to connect the most obvious dots or ask the most vital questions.
It’s true that there were countless law enforcement failures that day — indeed, far too many to be a coincidence.
But the singular point of failure — the one thing that could have prevented all of it from happening — was that Capitol Police leaders brushed off ample warnings that an armed mob was headed their way.
They lied to everyone about their level of preparedness beforehand. Then they sent a less-than-full contingent of hapless, unarmored officers out to defend a perimeter defined by bike racks, without less-than-lethal weaponry and without a semblance of a plan.
Even the insurrectionists who actively intended to stop the vote could never have expected that breaching the Capitol would be so easy.
An examination of the committee reports, the accompanying depositions and supporting documents leads to the following conclusion:
- The failure was not due to lack of intelligence. There was plenty. “I don’t think it was a failure of intelligence. I think it was a failure to operationalize the intelligence,” Julie Farnam, assistant director of the Capitol Police intelligence unit, told committee investigators. “They should have been ready for war, and they weren’t.”
- The lag in mobilization of the National Guard is a red herring. No one at the Capitol requested their presence until after police lines had been breached. To the extent that it was discussed beforehand, it was in order to have the Guard help direct traffic on surrounding streets.
- The Capitol Police were vastly unprepared. Despite Sund’s insistence that he was getting “all hands on deck,” he didn’t even cancel officers’ days off.
- The perimeter was defined with bike racks, which are good only for protests where most people are law-abiding. They do nothing to stop a horde. In fact, they get turned into weapons to use against the police.
- The Capitol Police had no backup plan in case multiple protesters posed a threat. Even as police lines had already collapsed, clueless police leaders were trying to deploy more bike racks.
- Incredibly, chief Sund ordered the removal of some bike racks late on Jan. 5, for reasons that some of his colleagues considered suspect.
- Actual calls for help were only made after it was too late. Justice Department officials said that even after they saw TV footage of insurrectionists parading through the Capitol Rotunda, Capitol Police officials told them they had things under control.
- Police leadership simply could not conceive of white Trump supporters as the enemy. Time and again, law enforcement leaders were presented with intelligence showing that desperate Trump supporters were targeting the Capitol, but didn’t take it seriously.
- Anti-scale fencing — the kind erected around the White House during the Black Lives Matter protests — would have stopped any of this from happening. It was never even considered.
There’s lots more where that came from. IMHO, this deserves wide attention.