Trump lied about the results of the 2020 presidential election. We know this from the evidence of an overwhelming number of REPUBLICAN witnesses to, and documentation produced in, the House Committee investigating the events from 2020 and early 2021. On top of that, Trump's public comments in the period from the 2020 election through and after January 6, 2021, including his speech that fateful day (under Brandenburg v. Ohio, 395 US 444 (1969), one looks to the circumstances and overall tone of the language of a speech to see if its meaning is for "imminent illegal action," which negates First Amendment "free speech" rights), and the other speakers Trump designated to speak with him, showed an intent to at least physically intimidate congress-members from certifying the results of the 2020 US presidential election.
For those who claim fealty to the US Constitution, think themselves patriots, and claim our Republic is one of laws, not of powerful individual people, there are two cases from the very early Republic which explain the meaning of the Treason clause which should be considered. But, first, let's review the Treason clause of the US Constitution, particularly Article III, Section 3. That section states:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Note first Treason does not mean one must consort with the enemies of the United States, which we know have to be declared "enemies" because there must be a state of war (or an act of rebellion for the president to act as commander in chief of the armed forces). The language of the Treason clause is adhering to enemies OR "levying war" against the United States.
But, what does "levying war" mean? The answer first came just six years after the start of our Republic. In US v. Mitchell, 2 U.S. 348 (1795), the Court interpreted the Treason clause in the context of the Whiskey Tax rebellion of 1793. Please read carefully the following italicized quote--and think about the evidence against Trump from his own circle around him, Trump's own public statements, and the fact that no lawyer for Trump has ever tried to adduce actual, factual evidence supporting the case that there was widespread voter fraud that resulted in a made up or fraudulent majority of votes for Biden over Trump:
By the English authorities, it is uniformly and clearly declared, that raising a body of men to obtain, by intimidation or violence, the repeal of a law, or to oppose and prevent by force and terror, the execution of a law, is an act of levying war. Doug. 570. Again; an insurrection with an avowed design to suppress public offices, is an act of levying war: And, although a bare conspiracy to levy war, may not amount to that species of treason; yet, if any of the conspirators actually levy war, it is treason in all the persons that conspired; and in Fost. 218, it is even laid down, that an assembly armed and arrayed in a warlike manner for a treasonable purpose is Bellum levatum, though not Bellum percussum. Those, likewise who join afterwards, though not concerned at first in the plot, are as guilty as the original conspirators; for in Treason all are principals; and whenever a lawless meeting is convened, whether it shall be treated as riot, or treason, will depend on the quo animo. 4 Bl. Com. 81. 1 H. H. P. C. 133. 4. Fost. 213. 210. 215. 218. 1 Hawk. P. C. 37. 4 Bl. Com. 35. 1 Hal. P. C. 440. 8 St. Tr. 247. 2 St. Tr. 586. 7. Keil. 19. 3 Inst. 9. The evidence, unfortunately, leaves no room for excuse, or extenuation, in the application of the law to the prisoner's case.
The one thing you can say for the Whiskey Tax rebels is the tax existed, and was not made up out of whole cloth. But, reading the above quote should make every person squirm who otherwise tries to claim what Trump did to be normal partisan politics. It should make every person who claims fealty to the US Constitution, the idea of true law and order, or claiming to support John Adams' dictum that we are a government of laws, not of men (persons) deeply offended by what Trump did. Again, Trump created a lie he saw had no factual basis, that of widespread election fraud, and then turned out people to intimidate or threaten or use violence to stop a presidential transition. Note, too, the language about anyone not concerned at first in the plot who joins in is as guilty as the original plotters. This is similar to the well-known criminal law known as the felony-murder rule, which our courts routinely follow up through the present century.
Then, in the first decade of the 19th Century, the US Supreme Court took the opportunity to further define the law of Treason under Article III, section 3. This time, the cases they were deciding were in the context of then-Vice President Aaron Burr's conspiracy and acts to take over parts of the Louisiana territory, which the US under President Jefferson had recently purchased in 1803. Burr's goal was to establish himself and a Colonel James Wilkinson as a nation-state empire with Burr acting similar to an emperor. He and Burr had people who conspired with him, and two of them, named Bollman and Swartwout, were arrested, tried, and convicted of Treason. Their cases went to the US Supreme Court. The US Supreme Court, in Ex Parte Bollman (1807) 8 US 75, held in part:
To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, the distinct offenses. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself or the fact of levying war cannot have been committed.
The Court then held:
To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the Court, a design to overturn the government of the United States in New Orleans by force would have been unquestionably a design which, if carried into execution, would have been treason, and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war.
The Supreme Court then stated:
...(I)f war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.
The Supreme Court also held the following, which should be really eerie to read for those who think Trump did not commit constitutionally defined Treason:
This position is correct, with some qualification. It cannot be necessary that the whole army should assemble and that the various parts which are to compose it should have combined. But it is necessary that there should be an actual assemblage, and therefore the evidence should make the fact unequivocal.
The traveling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous would be such an assemblage.(Underline added)*
Every American who truly cares for law and order, and for protecting and maintaining the US Constitution, should have shuddered when reading the above--especially considering the ample, and frankly materially undisputed, evidence from Republicans around Trump in their testimonies. And people of good will should wonder no more as to why there has been no direct refuting evidence adduced in the State Bar proceedings against Trump's lawyers about the supposed widespread fraud in the 2020 election. There should be no more wondering why Trump keeps using technical defenses of claimed executive immunity and never produces evidence that would prove his case of widespread fraud that deprived him of the presidency. One should also note the Colorado State Republican Party's appeal from the Colorado Supreme Court opinion depriving Trump of ballot access does NOT challenge the Colorado Supreme Court's finding that Trump engaged in an insurrection under the 14th Amendment, section 3. See Petition from the Colorado State Republican Party.
My points here are simply these:
First, US Attorney General Merrick Garland and his special counsel, Jack Smith, should have charged Trump with Treason. Doing so would have allowed people to understand what I am saying about the law of Treason. It would have focused even quite a few Trump fans to realize the gravity of Trump's statements and actions. It would force people to grapple with the evidence adduced, and why and how Trump and those around him are unable to produce refuting evidence that any reasonable court would even consider.
Second, as someone who mostly votes for persons with the Democratic Party, I believe it is, from a politically partisan stance, better for the Democrats for Trump to remain on the ballot. But I support law over politics, no matter how quaint that sounds. I think Trump is vulnerable no matter what current polling data says, as we are a long way off to November 2024. I think the economy may be getting better for people with tamed inflation, and people will see how the generally positive economic indicators are now better for them. It remains depressingly unfortunate that Palestinians being killed in Gaza and the West Bank will be ignored, no matter what those of us who oppose Israel's actions believe. But, as with most foreign policy matters over the two plus centuries of American politics have shown, foreign policy matters are most often sadly subordinated to domestic politics even when the US is either enabling or instigating the foreign policy crises.
I believe the Colorado Supreme Court and Maine's Secretary of State were each legally, and as a matter of constitutional history, correct regarding the 14th Amendment, section 3 to the extent a state does not need to wait for a formal criminal finding against Trump, or wait for Congress to act, when the evidence for engagement in an insurrection is not materially challenged. That italicized part is key! For then, the point becomes as clear as the case of someone running for president who would not reach the age of 35 before the inauguration date.
The people who are being politically partisan are those who want Trump to be on the ballot and potentially serve again as president of the United States. Democrats who want Trump to remain on the ballots of the various states know what I know about Trump's electoral vulnerability, and are thus good with dispensing with legal arguments for short term politically partisan motives. Either that, or they are scardey-cat libs who don't want to defend their own arguments. Republicans who want Trump to remain on the ballot are either (a) Trumpers, (b) anti-Trumpers who somehow believe Trump will more naturally implode, or (c) Republicans afraid of death threats or worse from Trump fans for saying what I am saying.
I think it is past time for people of good will and good faith across the political spectrum to acknowledge the law of Treason reasonably, and frankly, conclusively, applies to Trump's statements and actions. What happened from Election Day 2020 through January 6, 2021 was not Yippies gathering people at the Pentagon to levitate the Pentagon to protest an undeclared and unjust war. Those Yippies and their supporters were not engaging with violent intent or even the type of intimidation the term "intimidation" was meant to convey in US v. Mitchell, supra. It was not a sit-in in the lobby of one of the Congressional buildings protesting a foreign crisis in which the US is directly enabling and actively involved in. What occurred on January 6, 2021, even when one accepts how some Capitol Police let in those entering the Capitol, was about actions that were essentially about true physical intimidation, and a threat of or acts of violence, through an assembly of truly angry people. In 1968, Pentagon officials didn't run for their lives from yippies and hippies who had flowers in their hair and hands. Senators or Congresspeople did not run for cover during the recent sit-in which concerned a protest against the US complicity with Israel in bombing Gaza. And even the riots that broke out after the George Floyd murder in several cities in 2020 were not organized as riots by the amorphous Black Lives Matter movement leaders.
What is really ridiculous about what Trump did, on top of its illegality, was to push the delusional belief that massive numbers of votes were stolen from Trump and that Trump actually somehow won the popular vote and Electoral College vote. That belief is a lie when it is not a delusion, and a delusion that became for too many a lie. At least with the Whiskey Tax rebels, those peasant farmers were dealing with an actual tax they reasonably believed was unfair to a point where it threatened their livelihoods and small plot ownership. They were not engaged in delusional thinking based upon lies. And even President George Washington recognized this as he pardoned various leaders of the Whiskey Tax rebels toward the end of his second presidential term.
Again, once one focuses on the facts of Trump's statements and conduct, it becomes far easier to understand Trump violated his promise to protect and defend the Constitution. It becomes far easier to see why the Maine Secretary of State and Colorado Supreme Court decided what they did. The procedural and related non-substantive arguments begin to fade away, and make those decisions from the Colorado Supreme Court and Maine's Secretary of State denying Trump the ballot designation as not fundamentally different than denying ballot certification for someone not meeting age or residence requirements.
I would also like to send this personal message when dealing with Republicans and Trump fans of all stripes: I am of the personal opinion there is a Venn Diagram overlap between those who want to protect Trump and those who were fine with blacklisting Colin Kaepernick from the NFL for taking a knee during the national anthem during football games. Those folks who now want us to believe it is anti-democratic to deprive Trump from being on the ballot or serving again as president with the evidence adduced against him--and Trump's refusal to attempt to actually refute the evidence against him--were and are perfectly fine with a group of billionaires running the NFL to deprive Kaepernick of his entire livelihood to play in the NFL with no due process. Yeah, yeah, the NFL is a privately run organization. However, it is so often tied up with public funds and is an important element for our society's view of itself as a meritocracy of talent, not one's political opinions. With Trump and his words and actions, we are talking about allowing a guy to potentially become president of our nation again when faced with what is materially undisputed evidence supporting a finding of Treason. This is surely not normal, but it is one that people who believe in John Adams' dictum should be outraged about that Trump is this far along the path to the Republican nomination and remaining on various state certified presidential ballots.
*It should be noted the US Supreme Court ordered the two fellows released for a lack of material evidence against them beyond talk, and that they were not involved in any sufficient action.
