JACK SMITH, THE LAW, AND THE WOODEN STAKE
July 31, 2023 -Durt Fibo
Avalanche survival is at best 19% if one is fully immersed for 30 minutes. Donald Trump has been creating and escaping his own avalanches for 77 years, but even with the slabslide of criminal cases roaring down from the pinnacle, US law has one possibility of burying him forever.
The world laughs when America yodels that it is “a nation of laws.” While mobs and media continue to howl their opinions into the echoing gulches, we shall once and for all lay out the actual composition of the law as it exists, so that the readers may adduce for themselves the weight wobbling over the Trump: 74 felony counts and rising.
Firstly, due to the fractured system of state rule in the USA, most of them (with some variations) bar convicted felons from voting, but not from running for or assuming a federal-level office. The Federal laws themselves avoid the issue, and thus the holding of a federal position is – by omission – supported by the Constitution.
But the Constitution includes all its amendments; those become legally operative and fully integral parts of it as soon as they are adopted. The most vital of those today, and the only one which would absolutely preclude Donald Trump from holding any political office is Section 3 of the post Civil War 14th Amendment, reproduced here:
Fourteenth Amendment, Section 3:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
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We will return to this anon. Four years later, in 1872 (just over a year after President Ulysses S. Grant had to turn the force of law to ending the terrors of the Ku Klux Klan), Congress decided reconciliation was ripe, and passed the Amnesty Act, which has recently been cited in attempts to gouge out the purpose of the preceding 14th Amendment clause above. In relieving all but the formerly highest positioned secessionists of its its proscriptions, that amnesty read:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.”
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More recently – in 2022 – that Amnesty Act was the subject of a crucial legal case, when a coalition of North Carolina voters pressed state officials to disqualify U.S. Representative Madison Cawthorn from attempting to run for a second term because of his participation in the January 6 rally in Washington that erupted into the Capitol riot. Their written challenge claimed events on Jan. 6, 2021 “amounted to an insurrection” and that Cawthorn’s speech at the rally supporting then-President Donald Trump, his other comments and information in published reports provide a “reasonable suspicion or belief” that he helped facilitate the insurrection. The state’s attorney general’s office, citing a case from 1919 which considered the Amnesty Amendment, decided that Cawthorn was indeed blocked by the 14th Amendment “if a state board determines he aided or encouraged the Jan. 6, 2021, attack on the Capitol.” But the bellicose Cawthorn preemptively filed suit in a U.S. court to dismiss the challenge even before the state elections board could hear it. By March of 2022 A single judge, presiding over the United States District Court for the Eastern District of North Carolina, used the 1872 Amnesty to rule in favor of Cawthorn’s eligibility. Later that same month an appeals court, ruling not on the ultimate question of Cawthorn’s validity as a candidate but purely on the premise of the lower court’s decision, ruled that the Amnesty applied only to people who committed “constitutionally wrongful acts” before 1872. In sum, the 4th U.S. Circuit Court of Appeals ruled that amnesty given to people who rebelled against the United States in the Civil War did not apply to those who might be found to have participated in the Capitol insurrection of January 6, 2021.
That case was called (in short form) Cawthorn v. Amalfi, and we reproduce its relevant rulings here, as it made exceptional efforts in proving that in no way whatsoever is it possible to construe the 1872 retroactive Amnesty as exonerating any hypothetical future violator of the 14th Amendment, Section 3:
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Cawthorn v. Amalfi
Court: United States Court of Appeals, Fourth Circuit
Opinion: No. 22-1251
05-24-2022
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein) , That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.
17 Stat. 142.
The most fundamental problem with Representative Cawthorn’s proposed interpretation is that the Act’s operative clause refers to those “political disabilities imposed ” in the past tense rather than new disabilities that might arise in the future. The past tense is “backward-looking”; it refers to things that have already happened, not those yet to come. Cullen v. Pinholster , 563 U.S. 170, 181–82, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Of course, we must consider the text not just as a modern reader would but also its “plain meaning at the time of enactment.” Tanzin v. Tanvir , ––– U.S. ––––, 141 S. Ct. 486, 491, 208 L.Ed.2d 295 (2020). But Representative Cawthorn has not argued that this elementary rule of conjugation has changed in the last hundred and fifty years—likely with good reason. Cf. Blair v. City of Chicago , 201 U.S. 400, 465, 26 S.Ct. 427, 50 L.Ed. 801 (1906) (“This declaration is in the past tense, and can have no reference by any fair construction to future engagements.”).
Representative Cawthorn ventures no direct rebuttal to this straightforward principle of grammar. Instead, he notes that, as used in the 1872 Amnesty Act, “imposed” functions as a “participle” because it occurs in an adjectival phrase modifying “disabilities.” Appellee Br. 30. True enough, but that is beside the point. As Representative Cawthorn ultimately acknowledges, participles are a form of verbs—a form that comes in both “past” and “present” varieties. Id. at 30 n.5; accord Webster’s Third International 1646 (Philip Babcock Gove ed., 2002) (defining “participle” as “a word having the characteristics of both verb and adjective; esp : the English verbal adjective … that has the function of an adjective and at the same time shows such verbal features as tense and voice and capacity to take an object”). Here, Congress employed the past-tense version, indicating its intent to lift only those disabilities that had by then been “imposed.” Cf. Costello v. INS , 376 U.S. 120, 123–24, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964) (referring to the past participle in “have been” as a “use of the past tense” (quotation marks omitted)).
The operative clause’s principal verb—”removed”—reinforces this conclusion. In the mid-nineteenth century, as today, that word generally connoted taking away something that already exists rather than forestalling something yet to come. Dr. Webster’s Complete Dictionary of the English Language 1116 (Chauncey A. Goodrich & Noah Porter, eds., 1864) (defining “remove” when used as a verb: “To cause to change place; to move away from the position occupied; to displace. ” (emphasis added)).
Given all this, the district court’s focus on the 1872 Amnesty Act’s use of “all persons whomsoever”—which formed nearly the entire basis for its ruling—was misplaced. Without question, that phrase conveys broad action, and granting political amnesty to nearly all ex-Confederates in one fell swoop surely was a remarkable act. But the subject of the relevant sentence is the “disabilities” that are being “removed.” Thus, to understand what Congress did, we must look to any phrases modifying those “disabilities.” And that, in turn, brings us back to where we began: the fact that Congress did not purport to “remove[ ]” any disabilities that had not yet been “imposed.”
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Which brings us to what should be the most severe case against Trump: a criminal case to be prosecuted in the near (?) future by Jack Smith, DOJ special counsel, in the U.S. District Court for the District of Columbia. This case developed from federal investigations into Trump’s role in subverting and casting doubt on Joe Biden’s 2020 presidential victory and rousing a violent mob to attack the Capitol. Smith’s team also seems to be interested in whether Trump and his aides committed wire fraud or violated other federal laws by raising money through a political action committee based on known false claims of voter fraud, and conspiring to send fake electors from the states to Congress on January 6 who would declare Trump the victor of the election. On July 18, 2023, Trump raged that he had received a target letter inviting him to appear before the grand jury weighing evidence, which usually presages an indictment.
This only came after close to a year’s worth of investigating, which itself only began after an 18- month long investigation by the The United States House Select Committee to Investigate the January 6th Attack on the United States Capitol. The result of the Committee’s investigating, deposing and interviewing over 1,000 people was an 845 page report that recommended federal charges be levied against Trump consisting of: Obstruction of an Official Proceeding (18 U.S.C. § 1512(c)), conspiracy to defraud the United States (18 U.S.C. § 371), conspiracy to make a false statement (18 U.S.C. §§ 371, 1001) and to “incite,” “assist” or “aid and comfort” an insurrection (18 U.S.C. § 2383). They also recommended that the DOJ investigate two additional charges: conspiracy to prevent someone from holding office or performing the duties of their office, and seditious conspiracy (18 U.S.C. §§ 372 and 2384).
Related to, or directly charged with those crimes, over 1,000 participants and planners of the January 6 Beer Belly Putsch have been accused nationwide. Two of the most noteworthy are Stewart Rhodes and four other of his Oath Keepers who were found guilty of seditious conspiracy (among other charges), Oberkommandant Rhodes being sentence to 18 years in prison, and Henry “Enrique” Tarrio, erstwhile national chairman of the Proud Boys, who likewise was convicted of seditious conspiracy, along with four of his squadron. All those sentences were for their actions on January 6, 2021.
“Seditious Conspiracy” brings us as close as possible to the key of having “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”. That crime is defined by law as below:
18 USC 2384: Seditious conspiracy §2384
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
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The other charge inhabiting the halls we must enter is that of “Treason.” This is constitutionally defined, and applicable only to Americans who have betrayed the allegiance they are presumed to owe the United States. The literal definition per the Constitution is here (the penalties are attached by the criminal code):
18 U.S. Code § 2381 – Treason
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
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The Constitution, of course, gives Congress the power to impeach federal officials, including a President, for treason, bribery, and “other high crimes and misdemeanors.” But we have seen how little understanding the United States legislature has of high crimes and misdemeanors, of which the Constitution specifically included treason in its reckoning, and the 1917 Espionage Act which Trump’s slapstick coverup antics have entangled him in, also does not provide for the exclusion of federal office-holding, no matter how drastically this law is applied or how extreme it’s range of sentences. Which leaves one dank closet of turpitude relatively neglected, despite it adorning load-bearing joists, namely rebellion -sometimes called insurrection. This is defined thusly:
18 U.S. Code § 2383 – Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
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Crammed as it is under the stairwell, the specifications of “Rebellion or Insurrection” is an obvious model of “Treason.”
On mountains of paper, all the foregoing criminal charges are looming over Donald Q. Trump, or would be if prosecutors knew the law. Eschewing the option of impeachment – which is de facto an admission that the law is incapable of, or unwilling to address the res – the country is beholden to the comprehension, strategizing and vigor of its law enforcement elite. However, American prosecutors are remarkably poor at their job (as in many other nations), and habitually hurl a stew pot of wild charges at defendants, absently hoping some of the content will stick to them. Although Special Prosecutor Jack Smith has, in contrast, a clear and strong record, and the recommended charge from the January 6th Committee almost handed him the exact instrument (to “incite,” “assist” or “aid and comfort” an insurrection (18 U.S.C. § 2383)), no one has yet seen the vampire-slaying charges specified in the 14th Amendment, Section 3. Without that, the beast will remain at large.
In western civilization, laws were the social codes which evolved from the ancient Greek philosophical branch called Ethics. But as civilizations surge and crumble, and nations rise and crash, modern-day law is revealed to be a corroded cloaca of bribes and sophistries.