Still Not a Political Article: the Capitol Siege
- I began my last article by disclaiming any political intent or content, in advance of the US presidential election last November. Likewise, this one is not intended to assert any partisan or party positions and is thus not political either, though the topic is the state of our core institutions of government here in our country, and its principal objects are our current President and his most ardent adherents. No one who values expressive freedoms and civil liberties would deny anyone their rights to protest, petition and redress grievances openly and directly to their elected leaders. The right of peaceable protest and free expression applies to all: BLM, Antifa, the Proud Boys, the Bernie Bros, President Trump's loyal base in all its varieties, white supremacists, black separatists, fascists, Marxists, you and me. This seems elementary and that it should be uncontroversial to anyone who's taken middle school civics.
- Equally obvious seeming is the idea that these expressive freedoms don't include the right to commit crimes, engage in violence or seek to overturn institutions and democratic processes with force. Sometimes the contours between permissible speech and impermissible conduct aren't completely clear, and context may blur boundaries, requiring legal interpretation by the courts. But some actions are simply out of bounds beyond any reasoned dispute. I expected some kind of disturbance during the joint session of Congress last Wednesday, given all the news reports and social media activity indicating that those unhappy with the election results would promote their "Stop the Steal" agenda more forcefully than the outer limits of the First Amendment permit. But I was not prepared for the size, scope and extent of the melee which ensued, the physical breach of the Capitol or the spectacle of the seditious mob ransacking it. I was shocked and angered, feeling personally affronted much as I did during and after the September 11 terrorist attacks. This after all, was another terror attack, which reached one of the targets the 2001 Jihadists were unable to penetrate. Indeed, the Confederate Army never succeeded in raising its battle flag at the US Capitol, but these rioters did. They physically damaged it for the first time and to the worst extent since the British Army burned the Capitol during the War of 1812, over 200 years ago. People died--officers with the Capitol Police were killed and maimed trying to protect the Capitol and those working inside from those who were storming their way in.
- For the sake of our republic, let's all of us who love it, regardless of party affiliation, political views or preferences in any particular race at any level, look clearly and talk honestly with each other and ourselves about where we are in this moment. We face an existential crisis of a kind not seen since the Civil War. This is a test of whether we are and will remain a republic. Of whether our fundamental institutions can survive. Of whether a sufficient number of our citizens view the nature of the United States similarly enough to one another, that the nation can remain recognizable as what we had believed it to be only a few years ago. These questions which might have been dismissible as hyperbolic and paranoid exaggerations even a couple of weeks ago are statements of undeniable reality today.
- Any society which wishes to govern itself as a free republic must have a broad consensus about generally accepted facts as a predicate for governance, or it will fail. As the late Senator Daniel Patrick Moynihan wrote in 1983 (a bygone era seemingly beyond memory or relevance): "Everyone is entitled to his own opinion, but not his own facts." The scenes from last week showed rampaging, raging intruders shattering physical barriers, battering law enforcement and menacing Capitol staff as they assaulted and invaded the seat of our government. Painted, fur-clad, horn-helmeted ransackers howling in the halls of Congress evoke the Vandals and Visigoths sacking Rome, then at its perigee following decline from a republican state governed by a Senate, since decayed into undemocratic empire and ultimate dissolution. The metaphorical comparison of ancient Rome to present-day America which has been cliché for decades appeared to manifest into current reality on January 6. Yet the signs and slogans of the massed invaders of Congress reflected their apparent belief that they were in fact the true patriots, and the members of Congress, the Vice President and those working inside to confirm the electoral college ballot count were traitors to our country. We cannot persist in a public reality in which polarized camps each claim the mantle of patriot and label the other traitor. We must reject the false equivalence that each subjective view is equally valid objectively. Therein lies no government, law or society anymore, but only a free-for-all where might makes right and the strongest wins each contest. That is anarchy, or at best the pre-medieval world made and inhabited by those who sacked Rome. Is that the America we want for ourselves and our children?
- No: instead, as of now if not before, it is time to confront reality and acknowledge that there are not two equally valid points of view reflected by these events, even if each of the Capitol rioters sincerely believed he or she was acting to save the nation from a cabal or conspiracy. It is time for honest and forceful condemnation of intolerable criminal conduct and these threats to our continued existence as a republic, premised on the real facts. The 2020 election was secure, free, fair and properly conducted. There was no steal to stop. The President, his allies and enablers are and have been engaged in a deliberate effort to spread lies and propaganda in order to undo the results of that election. The actions which those who sieged the Capitol took were sedition, insurrection and an attempted coup, among other more ordinary felonies. Treason is defined in Article III, Section 3 of the Constitution as levying war against the United States: an armed assault upon the Capitol during a joint session of Congress assembled to confirm a presidential election may not quite make the cut, but a skilled prosecutor could charge it and make a persuasive case. The fact that we can debate the legal definitional boundaries of the various offenses committed by citizens attacking their own country and government tells you just how bad things are at present.
- Those who continue to persist in their beliefs based upon demonstrably false propositions are just as entitled to do so as are the flat earthers, moon landing skeptics and all others who prefer to ignore inconvenient facts. They may hold as many rallies and rave away in cyberspace to their hearts' content. The First Amendment remains an eternal shield for folly and foolishness, as much as for the highest expressions of art and thought. All those who had any role in the Capitol invasion should be pursued by the criminal justice system appropriate to their respective levels of involvement. Anyone who engages in comparable behavior in the future must earn a similar fate. Motivating political views are irrelevant. Whether anyone in opposing groups ever also misbehaved at a rally is immaterial. This was a mass criminal act perpetrated upon the seat of our government for which there is no excuse and about which there can be no reasoned debate. The President's shocking, unprecedented role in all this is inexcusable, and has since earned him a second impeachment in the House.
- This short post is intended as a summary of my top-level impressions and conclusions: there are dozens of factual and legal issues bearing on and lurking within them. There is spacious room for fair-minded disagreement about many important particulars. Again, we can debate the level and technical legal category of the President's culpability--whether he incited insurrection, committed sedition or some other or further felonies--but when we are left to calibrate the degree to which any sitting US president betrayed his oath and country in service of personal power and interest we are already beyond unimaginable (sur)reality. For the President of the United States to do these things brands him as a traitor in my eyes, meaningfully and colloquially if not technically under the law. How we can possibly heal as a functioning society is a difficult question for a later day: but it can only be built on a foundation of accountability for the outrages which have now occurred, and a return to a sane, shared reality worthy of a great republic.
Environmental Attorney
4 年Excellent. Thanks for sharing. I remain thankful for having had the opportunity to work with you as a law clerk and young lawyer.
Medical Director at Ednem Family Medicine Clinic
4 年Agree 100% Scott. Let’s hope that normalcy and reality will fall on this Republic on the 20th. Happy New Year to you!!!