Category Archives: 1/6

The Amars Have Done it Again

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.)

Posted in 1/6, Law: Constitutional Law | 7 Comments

The Case of the Capitol Police and the January 6 Near-Putsch

Cop Jan 6

Capitol Police officer on Jan 6, 2021
© 2021 lvert Barnes via Creative Commons Attribution-Share Alike 2.0 Generic License

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.

Posted in 1/6, Dan Froomkin | 2 Comments

Accountability, Just Maybe

65 project logoOne more item like this and I’m going to declare a trend.

According to Axios, a bunch of Democrats are planning to play ethics offense against lawyers who signed complaints or phony electoral returns in the meritless attempt to overturn the last election.  They’ve created the “65 project“, so named because the courts kicked all 65 lawsuits filed on Trump’s behalf unceremoniously to the curb.

The 65 Project is targeting 111 attorneys in 26 states who were involved to some degree in efforts to challenge or reverse 2020 election results. They include lawyers at large national law firms with many partners and clients and lawyers at smaller, regional firms.

  • It will air ads in battleground states, including Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.
  • It also will push the ABA and every state bar association to codify rules barring certain election challenges and adopt model language stating that “fraudulent and malicious lawsuits to overturn legitimate election results violate the ethical duties lawyers must abide by.”
  • It plans to spend about $2.5 million in its first year and will operate through an existing nonprofit called Law Works.

[David] Brock [, founder of Media Matters for America] told Axios in an interview that the idea is to “not only bring the grievances in the bar complaints, but shame them and make them toxic in their communities and in their firms.”

And, indeed, the 65 project filled its first wave of ethics complaint yesterday, against Jenna Ellis, Joseph doGenova and seven others.

Posted in 1/6, Law: Practice | Comments Off on Accountability, Just Maybe

The Missing Link

Watching the 1/6 invasion of the Capitol on TV in real time, it was easy to think that most of the people were a strange sort of riot tourists. Yes, a vanguard looked tooled up, but the mass we saw on TV looked more along for the ride than anything else.

Since then, we’ve learned that key things were not on camera. There was some substantial advance planning among at least a portion of the insurrectionists. They may have had help from inside the building, both police and even members of Congress. They had phone calls or texts to people in the White House. There was a lot of big financial support from groups committed to overturning the election.

We also learned that Trump’s efforts to get certain states to overturn their results were much more extensive than first appeared from the inconclusive meeting with Michigan electoral officials. There were, at least, extensive efforts in Arizona and in Georgia, a key piece of which we have on tape.

And of course there were three score and more lawsuits around the country.

What was missing from the picture was the military angle. To run a real coup requires troops. We knew that Trump cleaned out top officials from the Pentagon and replaced them with acting officials who had the mien of stooges. That seemed to have cleared the decks for some sort of military action. The prospect of something certainly scared Dick Cheney enough that he convened a large group of former Defense Secretaries to write a warning to the military to stay out of the election. Yet, no sign of actual military activity manifested. Did the Cheney letter head something off?

Now, however, a different story seems to be coming into focus. The military angle wasn’t action as such: rather it was enforced inaction. Not only were the Capitol Police kept from preparing, or lulled into inaction, but so too was the National Guard. And this goes much further than not activating them: Acting Defense Secretary Miller tied the DC National Guard’s hands in what seems an extraordinary fashion, forbidding all the following from being deployed, used, or done by the Guard on Jan 5-6 without his personal approval:

  • Weapons, ammunition, protection gear such as helmets and body armor
  • Interacting physically with demonstrators except in self-defense
  • Employing any riot control agents
  • Sharing equipment with law enforcement
  • Using any “intelligence, Surveillance, and Reconnaissance” assets to monitor the demonstrators.
  • Helicopters or other air assets
  • Conducting searches or seizures arrests or anything else directed by law enforcement
  • Seeking support from law enforcement

In short, the Guard was rendered completely ineffective.

In other words, there was a plan: the plan was to remove all impediments both civilian and military that might get in the mob’s way, and then, to coin a phrase, unleash the Kraken.

And, it came quite close to working, in the sense that had there been a bloodbath then Congress might have found itself unable to act on the 6th. Personally, I don’t think that would have sufficed to keep Congress from doing its job the next day if it needed to and I don’t think that a majority (if living) would have given in, but maybe the plan was to have a long-run standoff like at Waco.

Since Trump and Pence’s terms would have ended on the 20th anyway, this would not have kept them in office.  But if the insurrectionists had killed the Speaker and managed to keep Congress from meeting elsewhere and selecting a new Speaker, then presumably Chuck Grassley, the President Pro Tempore of the Senate would have become President.  And we know what a profile in courage he is….

Posted in 1/6 | 9 Comments

More Like This Please

A member of the ‘Sedition Caucus’ gets the ad he deserves:

Posted in 1/6 | Comments Off on More Like This Please

A Hideous Proposal to Use No Fly Lists to Ban Alleged Insurrectionists

I hope they throw the book at all the people who we think stormed the Capitol. And the people who egged them on. And I hope they get fair trials.

But not this: Senator Chuck Schumer on Tuesday called for federal law enforcement to add participants from last week’s riot in the U.S. Capitol to the Transportation Security Administration’s no-fly list.

Do I have to explain how bad this is? No trials. No due process. Restrictions on freedom of movement on bare allegations. To the extent we limit it — this time — to persons believed engaged in armed trespass, or even just trespass to the Capitol, that’s different from making it purely political. But it’s moving in that direction. And, recall, that even insurrectionists are to be presumed innocent until proven guilty.

The right to travel should not be infringed because someone somewhere who is not accountable puts you on some list that is next to impossible to get off. That applies to all citizens and permanent residents, whether the list-maker thinks you are someone who makes suspicious visits to Muslim-majority countries, whether you are accused but not convicted of a crime, or because they just don’t like you.

I would be OK with a travel restriction (‘don’t go near DC’) for out-of-towners as a condition of their bail after they were arrested and indicted. That’s done by a judge or magistrate, it’s public, and it’s publicly appealable. The no-fly-list is none of those things; there is an appeal process of sorts, but it’s totally opaque.

Update:
Retired firefighter, comedian and Chuck Norris falsely accused of being Capitol rioters — this is why we have trials.

Posted in 1/6, Civil Liberties, Law: Right to Travel | Comments Off on A Hideous Proposal to Use No Fly Lists to Ban Alleged Insurrectionists