Yes it was an insurrection, Ross.

Ross Douthat is Wrong TL;DR: Yes, J6 was an insurrection - just read the J6 report or the Colorado Griswold decision - yes DT was involved and thus can be barred from office under the United States.

To proceed at some length, then:

If you don’t know who Ross Douthat is, bless you. But if you want to brush up on this conservative columnist, blogger and author before continuing with the rest of this post, well, the link is in the previous sentence.

I’m going to quote him enough throughout that you’ll get a strong-enough (but not thorough) sense of his positions to correlate with my responses to him (which he is never going to read - not that he’s the audience for this post anyway - and I’m going to spend too much time on it because I’m annoyed with him, the NYT Opinion editors, and generally anyone and argument taking the position that politics Trump law). I’ll source those quotes using my subscriber “gift links” which will work for anyone for a while.

Douthat and the like are enamored of the argument that using 14A.S3 * to prevent Donald Trump from taking office under the United States is improper use of the ammendement’s scope, and some kind of crime against the vital politics of the moment which must obviously be settled by the electorate choosing their candidates rather than the law removing candidates from eligibility.

My first problem with this argument is that we exclude candidates from eligibility all the time. For example. If you are not 35 years of age you can’t run for President of the United States. Oh, and you must be a natural - not naturalized - citizen of the United States. And there’s another one! You have to have been a resident of the U.S for fourteen years. See? It’s right there in the Constitution, ArtII.S5 . Turns out, 14A.S3 is also in the Constitution and thus, as being included in the primary law of the land, has the force of law, not merely politics. Folks will accept there is no good argument against ArtII.S5 short of a Constitutional Amendment that alters it, so I encourage them to likewise accept that we live with 14A.S3 as a matter of law unless a similar nation-wide, democratic agreement can be made.

My second problem with this argument is that it exemplifies (among many, many examples) just how radically far off the rails one of the two major political parties (let’s be honest, there are only two who are at all likely for the foreseeable future to manage to win elections of consequence) has gone, and how hard some (LOTS) moderate members of that party are clawing their fingers bloody dragging mud over the plainly visible and rotting murder victim of the party’s previous incarnation.** Let’s take a look.

What transforms a political event from a violent riot or lawless mob (which Jan. 6 plainly was) to a genuinely insurrectionary event is the outright denial of the authority of the existing political order and the attempt to establish some alternative order in its place. [source]

The above is what Douthat expresses is his understanding of an insurrection. Well, I can argue with him but I can also just point to this section of the Colorado Supreme Court decision in No. 23SA300, Anderson v. Griswold

¶224 Moreover, the record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process. ¶225 For these reasons, we conclude that the record fully supports the district court’s finding that President Trump engaged in insurrection within the meaning of Section Three.

But for the sake of argument, if I did want to argue with Douthat’s understanding’s relevance to J6, I would start with pointing out that the mob did, indeed, in their own words, seek the outright denial of the authority of the existing political order and the attempt to establish some alternative order in its place. That is exactly what is happening when a violent mob wants to stop the Constitutionally-(remember, primary law of the land!)-mandated counting of the Electoral votes and/or hang the legitimate Vice President of the United States unless he counts them the way they want / hang VPOTUS on general principle and make the combined houses of Congress count the votes the way they want (not sure the mob was clear on this point, itself).

Let’s get another quote from Douthat (who, remember, is just the one of these argument makers I’m annoyed with today and so gets to be my go-to example today):

Obviously, there was no such equivalent declaration when the QAnon Shaman ascended to the Senate rostrum; no serious claim of military or political authority made on behalf of the assembled mob, no declaration of a dissolved Congress and a new Trumpist Reich. Had there been — had, say, one of Trump’s aides rushed to the Capitol and announced that Congress was disbanded and that President Trump was declaring a state of emergency and would henceforth be ruling by fiat — then the riot would have been transformed into an insurrectionary coup d’état. But nothing like that happened: The riot did not culminate in an attempt to depose the Congress; it dissolved before lawful authority instead, remaining a mob until the end. [source]

Again, we can just look at Griswold, but I wanna take a less-wordy and legalistic crack at it too. They can’t have all the fun!

Here, Douthat is making a strawman argument by creating the bar to clear of “[a] serious claim of military or political authority made on behalf of the assembled mob”, which apparently (J6 report, Griswold) and obviously isn’t necessary to have yourself a whole hoedown of an insurrection. Douthat agrees that we had a mob. Douthat builds a new road to avoid traveling the one right in front of him which leads to the unassailable fact that it matters what Congressional business the mob was not only interrupting, but trying to determine the outcome of. Since it’s a matter of record that none of the persons democratically elected in specific elections under the Constitution and thus the only persons empowered by the Constitution to enact the business of the Constitution in Congress did not take part in the actions of said mob, and that the specific business being addressed by Congress on J6 was the lawful and orderly succession of the office of the Presidency of the United States which said mob unlawfully attempted to determine the outcome of (remember, they are not sitting members of Congress, the only ones who get a vote on the outcome of this business!), well, we have ourselves an insurrection.

Also it’s dumb to say there was “no serious claim of military or political authority made on behalf of the assembled mob” since we have video of them saying “Trump asked us to come” which we can nicely chain together with the mobs’ intent of determining the outcome of the Electoral College count by hanging the Vice President of the U.S. Or something. Really, I don’t think they thought through the specifics of executing their will regarding this point, but it hardly matters in the scope of the argument. We know the outcome they wanted and the lengths they were willing to go. And to that last, I’m focusing on the wanted execution of VPOTUS but we can’t leave out the hours of destructive assault on the Capitol Police, the Capitol building and offices, and the several deaths that occurred during and as result of the same.

OK. What’s the next annoying quote. Ah yes:

But one can abuse the powers of the presidency for one’s own political benefit without it being an insurrection or rebellion under the terms of the 14th Amendment. Woodrow Wilson engineered legislation that led to the imprisonment of a political rival; that was wicked and abusive, but it was not insurrection. Richard Nixon covered up an election-year criminal conspiracy against the Democratic Party; that was abusive, but it was not an insurrection. Trump’s scheme to manufacture supposed proof of voter fraud, had it found many more cooperators among Republicans, would have been worse — but “worse than Watergate” is not in the text of the 14th Amendment. [source]

This is so, so, so obviously another strawman argument. Correct! A sitting president sabotaging a political rival is not an insurrection! The political rival is not POTUS nor a Congress sitting in the official act of certifying the election of a POTUS! But that’s not even at all like what we’re talking about here because, again, the context of the act of Congress that was interrupted and on whose urging it was attempted and by what means is deterministic!

“But, but, Trump wasn’t the only or likely the first to call for a violent determination of the EC count…” some might blather. And, certainly and probably not, respectively, but respectfully, he only had to be any one of those people and we absolutely as a matter of fact exemplified across many media types and venues know that he was. By his own hand.

“Will be wild!”

Remember that?

Here’s the last one I wanna talk about:

So if I were creating a strong rebuttal to my own argument, I would try to fit Feb. 6, 1934, into the framework of the 14th Amendment, rather than relying on historical analogies that are more famous but whose details just don’t match what happened here. [source]

The fallacy here is that we have to have any historical precedent or comparison at all in order to understand the plain meaning of 14A.S3. We do not. I mean, that’s so obvious I almost don’t know how to respond to this type of argument. But, okay. If it was the first time any person(s) saw another person(s) killed against their will by the deliberate act of other person(s) outside of the parameters of a lawful target on a battlefield, then that must necessarily be not-murder because they’ve never seen a murder before? Come fucking on, man! I think they’d be able to compare the definition to the act and get somewhere, you know?

Lastly, I want to address the editorial staff at the New York Times. You continue - not at all alone among other publications or media but certainly very notably as “the paper of record” - to try to keep the old “balance” of the behaviors of Democrats and Republicans roughly equivalent. In this day and age that is simply unethical. While not all registered Republicans have jumped the tracks into MAGA battlefields, when a majority of the party stands behind a finding-of-fact-by-a-state-Supreme Court-determined insurrectionist running for the highest elected office, you have you have failed consistently to put your readers into the complete context of this almost unprecedented behavior; the violence and its costs, the abuse of high office, the culpability of media. When you publish stuff like this Douthat newsletter without any of that it doesn’t stand on its face as some opinion that one might reasonably have and be considered reasonable and worth reasonable discusison. What it does is cause my pals to say stuff like “NYT continue to be fascist apologists” and well, I find that a take that’s hard to argue against.

You stewards of the paper of record should be guiding your publication in a way that doesn’t elicit such response by reasonable people.

* I debated the styling of this and did some web searching and decided to merge common usage like "#2A" with the style guide for representing a section of the amendment. OK I just didn't like how "Amdt14.S3" looks, okaaaayyy?!
** Let's be real. You have to go back several incarnations, past the Tea Party, to at least somewhere before Reagan to get to something we moderns could call "reasonable", reasonably.
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