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Coup? Insurrection? Impeachment? What Just Happened?

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I was deposing a witness last Wednesday and opposing counsel, who had been surfing the internet on his phone during most of my deposition (which is not uncommon) asked to take a break and I asked him if he was okay and he literally says, I quote, “I don’t know, the President is leading a rebellion – they are all over the Capitol Building.”  It was a strange week indeed.

It’s weeks like these that make me think law school messes your brain up a little.  You start to look at everything like it’s a legal case – it’s not normal.  If you have 10 minutes let’s do a legal analysis of this week of Coupes, Sedition, and Impeachment – oh my.  

Toto we are not in Kansas anymore.

So, this Wednesday began with the President’s speech to his supporters near the Capital just before Congress was going to certify the electoral votes for President-elect Biden.  Unfortunately, as we know, right after this rally the supporters marched on the Capital building and then INTO the Capital building, a young lady was shot and killed, apparently a police officer also died from injuries.  Tragedy.

So the first legal issue that jumped out at me, knowing what happened after the speech, is did the President commit a crime by inciting the violence that ensued?  Apparently ABC has a lawyer on staff because they jumped all over that possibility. 

Incitement to rebellion or insurrection is a Federal Crime codified in 18 USC 2383 and that would be the Federal crime that ABC is probably referring and the law is fairly straightforward in how it is written: 

“Whoever incites others to insurrection is guilty of a crime and may not hold any office under the United States.”  

This is the law that the Democrats have latched onto.  There is another law that makes it illegal to “Incite to violence” but it doesn’t have the last phrase in it about the person not holding office anymore.  Hmm … say what you will about her but the Speaker is not stupid.

Anyways, incitement cases go back a long way and the Courts have always struggled to apply incitement laws because they involve such a struggle between Free Speech and statutory law.  In 1919, Justice Holmes wrote the “Clear and present” danger standard which is still the law today.  A prosecutor must prove that the speech, in the context it was given, created a clear and present danger that it would cause the “evils” that the law means to prevent.  In the same opinion Justice Holmes made up the famous example of someone yelling “fire” in a crowded theater as an example of speech not protected by the 1st Amendment.  I talk in more detail about this in my vlog on Free Speech.

SO, did the President commit a crime here AND just to foreshadow our next topic, this is very important because new articles of Impeachment are coming Monday and this is the crime they are impeaching him for, Incitement to Insurrection.  So, now that you know the statutory and case law, what did the President say?

Did the President say “go and riot and break into the Capitol Building?”  No, of course not.  But that’s not the law – the law is whether the President’s words created a clear and present danger of an insurrection taking place.  This would be a case of circumstantial evidence but it can still be a good case – it just matters how much circumstantial evidence you have.  In this case prosecutors could use the President’s prior speeches, the setting, the hype, whether there were people in crowd with signs calling for violence, etc etc.  You could probably even get into the evidence that he didn’t really try to stop the incursion into the Capitol building – I think that’s relevant to Mens Rea.  But I think the President’s words alone without context don’t get you to Incitement.  So, I don’t know if this was incitement – what do you think? Let me know in the comments.

So, moving on from incitement I was then surprised yesterday to see that the Democrats this coming Monday were once again going to bring articles of impeachment against the President.  Why surprised?  Because he only has like ten days left in office.

I did a vlog on Trump’s first impeachment 2 years ago where, if I may toot my own horn, I told you it would fail and I told you EXACTLY why. 

Impeachment is a two-part process, and very difficult. First, the House votes on whether to impeach — the equivalent of indicting someone in a criminal case.

If a majority of the House votes in favor of pressing charges, the Senate must hold a trial. The House prosecutes the case, appointing impeachment managers to argue before senators who act as the jury, and the president is traditionally allowed to mount a defense with lawyers of his own choosing. The chief justice of the Supreme Court oversees the trial.

There’s just no way I see this happening, on a difficult charge of incitement, in ten days.  I just don’t think it’s possible to have a trial in that timeframe.

So what is the other option to remove the President from power and even more interesting?

25th Amendment, Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

The 25 the Amendment to the Constitution passed in 1967, in Section 4, allows for the Vice President and the President’s cabinet to vote that the President “ is unable to discharge the powers and duties” of the office.  Normally there are 15 cabinet members and have you noticed this last week that 2 or 3 of them quietly resigned?  Hmmm. Interesting. 

The 25th Amendment has never been invoked before but as soon as the vote takes place the transfer of power is automatic and the Vice President becomes acting President, stripping the President of his power but not his title. Right Away All the cabinet member have to do is send a letter to Congress and it happens.  Now, the President can object and then Congress has 21 days to deliberate and then vote on it but that takes us well past the natural end of Trump’s term.

With impeachment not looking possible, this is the avenue I’d be looking out for especially with the recent divide between the President and the Vice President and interesting timing of cabinet resignations if the play here is to remove Trump’s presidential powers.

After this week, nothing would surprise me.  What do you think is happening?  Let me know in the comments and thanks for watching.

Thien-Vu Hogan
Thien-Vu Hogan
Attorney Thien-Vu Hogan is the founding and managing partner of Hogan & Hogan.