Gut Decisions
“I know it when I see it”. That quote is from Supreme Court Justice and former Cincinnati City Council member Potter Stewart. He was talking about pornography. The Supreme Court itself ruled if individual films were pornographic, and therefore not an exercise of First Amendment free speech. The Justices gathered once a month in the basement movie theatre of the Court Building, to watch films and make individual judgments. It was also a popular day among the almost all male young staffers of the Court.
Stewart was unable to reach a strict “definition” of pornography, but he could make a “gut decision” about it. Ultimately, the Court got out of the “critic” business in 1973 with the Miller decision. That established a three step process to determine if a film should be banned because it had “…no redeeming social value”. That finally ended the monthly shows.
There is a technical definition of “Insurrection”, but like pornography, we know it when we see it. We saw it on January 6th, 2021, when the followers of Donald Trump attempted to seize the Capitol Building and change the outcome of the 2020 Presidential Election. We saw it when the ex-President himself pressured state and local election officials to alter election results in his favor. And we saw it in the elaborate scam of fake Electoral College votes.
Legal Insurrection
“Insurrection” is now dramatically important in our law. Not only is insurrection criminal, subject to long prison terms and fines, but it carries a ban on holding further office in the United States.
“Insurrection” has already been bandied about. In North Carolina, opponents of Congressman Madison Cawthorn brought a serious legal charge against his candidacy, based on his participation in Insurrection. They not only cited the US Code (Federal Law), but also the Fourteenth Amendment of the Constitution, Section 3. That states that anyone who first took an oath to support the Constitution, and then acted against it in insurrection, is banned from office.
The North Carolina Courts determined that while Cawthorn might have committed Insurrection in the “know it when I see it” sense, he never was convicted of it. Cawthorn’s name was allowed on the ballot, but he failed to win the primary. The same argument was made against Marjorie Taylor Green in Georgia, with the same legal outcome. She won re-election and now stands as a powerful member of the Republican House of Representatives.
Charging the ex-President
The January 6th Committee issued their final report yesterday. They recommended that the Justice Department charge ex-President Donald Trump on (at least) four counts. The Committee recommended charges:
- obstruction of an official proceeding of the United States government,
- conspiring to defraud the U.S.,
- making false statements to the federal government, and
- inciting or engaging in an insurrection. (Forbes).
The “top charge” is Insurrection. We knew it when we saw it. And the January 6th Committee has gone a long way to demonstrate that Trump committed the crime. The Committee acted like a Congressional “grand jury”, examining the evidence and recommending charges.
Good Guys
But in one sense, Democrats (and the Republicans on the Committee) are hamstrung. While Trump/Republicans could ignore subpoenas, violate norms, and skirt the laws; Democrats have placed themselves on the side of – wait for it – Law and Order. By taking that side, they are constantly restrained by the fairness of the Law itself, that “awful” legal term, due process. (We will see how Democrats continue to be the “good guys” of law and order when the Republican “revenge committees” start up in January. Will Democrats ignore Jim Jordan’s subpoenas as Jim Jordan ignored theirs?)
Merrick Garland was appointed Attorney General to change the Department of Justice. Trump used the Department as a political cudgel against his enemies. Trump’s Attorney General Bill Barr misinterpreted the results of the Mueller investigation, and stood as a block to other inquiries into his Presidency. President Biden specifically appointed Chief Appellate Judge Merrick Garland to the head the Department and make Justice as apolitical as possible.
Justice
Garland is already investigating Trump. There are two “known” Federal investigations; one directly involving January 6th, and the other Trump’s removal of secured documents. Justice has their own grand juries, looking at the same evidence that the January 6th committee found or developed. Those juries, Garland’s handpicked leader of the investigation Jack Smith, and Garland himself will determine what charges (if any) will be brought against Trump. They will be sure to make due process, fairness, the highest priority. That’s what “law and order” is supposed to be all about.
Many suggested that the January 6th Committee was developed like a serial television show. They created a series of presentations, each with compelling video evidence, and each ending with a “cliffhanger” for the next “show”. Like any good, “Sorkin-like” series, the last show must have a satisfying end. It couldn’t be just a re-hash of the series. And so this Committee that acted as “America’s Grand Jury” offered its final bombshell. They called for the trial of the ex-President of the United States on the highest charge possible. If convicted, he would be banned from office for life.
Trump, like any American citizen, deserves due process. But I hope that Merrick Garland realizes that the American people, who suffered the Insurrection and the threat to their Democracy, deserve the same.
