The "That's What the Insurrection Act is For" Edition
The Republican Party is an "Infiltrative Insurgency"
I tried, but it was too hard not to write something regarding the most recent indictment of Former Second Confederate President Donald Trump for his conspiracies to overturn his defeat in the 2020 election. I’ve touched only lightly on his indictments before, because a) I’m not a lawyer, and b) until now, the crimes he’s been accused of have been just that: crimes, violations of law. New for a president, sure, but not new in and of themselves.
But this is different. These charges go directly to an attempt to prevent the peaceful and constitutional transfer of power, and that’s as destabilizing to a union as you can get. They have implications and lessons for our stability beyond strictly legal questions. So, without further ado…
It’s a good thing we all listened to me! I won’t pretend my reach is that vast and influential, but it’s really important that we all collectively chose to stay off the streets on January 6. As Co-Conspirator 2 (John Eastman) confirmed in saying “that’s what the Insurrection Act is for,” violence was essential to the plan, actually more so than Smith indicates in the rest of the indictment. We foiled their plan by giving them nothing to respond to.
I should say violence was essential to Plan B. Plan A, according to the indictment, was to get Republican governors or legislatures in battleground states to ignore their popular votes and send up the fake Republican slates of electors instead. Credit is due to Republican leaders who stood by the Constitution, though I say that in the same way I say credit is due to the July 20, 1944 conspiracy plotters against Hitler—“troubled” by Trump for all kinds of reasons, but still sticking with him as long as he was winning.
Plan B was for Vice President Pence to refuse to certify the electors sent from those states. Ideally, he’d recognize the “fake elector” slates, but he didn’t have to; he simply had to refuse to take the submitted elector slates and thus throw the certification into chaos. That’s what the Jan. 6 rally was intended to pressure him to do.
The indictment shows that the conspirators assumed this action by Pence would bring “BLM” and “Antifa”—which they mistakenly believed were cohesive organizations like the Proud Boys and Oathkeepers—into the streets in violent riots across the country. This would give Trump the excuse to invoke the Insurrection Act, which basically means martial law. Then, with troops in the streets, he would have time to strong-arm key legislatures into sending up his chosen electors, which he would use to maintain himself in office. If needed, he would have had the military and federal law enforcement hold the ring while he would deputize friendly local law enforcement, the Proud Boys, and the Oathkeepers to terrorize his enemies.
I still think this would have failed in the end. I truly believe that even had all that happened, at 12:00 noon on January 20, Chairman of the Joint Chiefs of Staff Mark Milley would have gone to House Speaker Nancy Pelosi and said, “What are your orders, Madam Acting President?” There simply is no precedent or provision for a sitting president to remain in office after Jan. 20 absent clear agreement about their successful reelection. But I’m glad we didn’t find out.
Do we need insurrection, seditious conspiracy, or incitement charges? In an ideal world Trump would be convicted of “insurrection,” to clearly disqualify him from office under the 14th Amendment. Smith opted not to charge that. Is that a mistake? This moves me uncomfortably close to lawyer territory, but “insurrections” and “seditious conspiracies” are in the “stability” wheelhouse, so here go some thoughts:
1. Smith always can file these charges later;
2. He may not have the smoking gun for these charges yet. While we have convictions for seditious conspiracy against the Oathkeepers and Proud Boys, it’s quite likely none ever spoke directly with Trump, and their cutout—Rudy Giuliani? Roger Stone?—may not have flipped yet to create that direct link;
3. I hear some lawyers say these charges are like “incitement” in that they veer very close into questions of First Amendment speech, and Smith’s sticking with conspiracy charges because those aren’t protected by the good ol’ 1A;
4. I’m disappointed that the charges don’t reference what to me is the surest indicator we know of that Trump anticipated and welcomed violence: that before his speech on Jan. 6 he was warned by the Secret Service that many of the attendees were being stopped at the magnetometers with weapons, to which he responded, “get rid of the magnetometers, they haven’t come here to hurt me.” But of course, Smith doesn’t have to put every single thing he knows into the indictment; maybe this will come up at trial; finally
5. The charges are momentous enough. There is something pretty karmic about a lifelong fraudster being charged with defrauding the entire United States, and being prosecuted under one of the Reconstruction-Era Klan Acts is just delicious.
This man hunts traitors from beyond the grave!
Trump’s “defense” will be to win the election. He’s got his lawyers tossing out multiple theories of innocence, none of which are likely to work in court as well as they will on FOX. But then he’s not trying to win in court; his narcissistic ego can only find redemption in reelection. His defense is built around rallying his base to him, and it almost certainly will work to win him the nomination. I expect him to support (as I do) televising his court proceedings, and I’d be very surprised if he didn’t want to take the stand. Court-wise, testifying would be insane. But an electoral victory would overturn any conviction and allow him to avenge himself against his enemies, and Trump testifying would be magnificent spectacle for his base—him courageously facing his Deep State attackers.
“Infiltrative Insurgency:” I just finished reading “The Insurgent’s Dilemma” by David Ucko, a survey of the successes and failures of modern insurgent movements. Ucko finds that insurgencies increasingly are unsuccessful in their classic mission to overthrow governments, but are showing some success in other forms: “localized,” “infiltrative,” and “ideational.” “Localized” insurgencies are like secessionist groups—they aren’t trying to take over the whole country, just to control part of it, and they sometimes get away with it if they don’t push the central government too hard and don’t threaten its core areas of support. I’d argue some red states and “constitutional sheriffs” already are practicing this. “Infiltrative” insurgents use a combination of violence and the regular political process to advance their objectives jointly—think of the Klan and the Southern Democrats, or the PIRA and Sinn Fein. “Ideational” insurgency is more like the term “stochastic terrorism” you’ve doubtless heard: a very diffused leadership with plausible deniability for violence, a strong and threatening information warfare component, especially on social media, and plenty of disturbed people who will act violently when radicalized sufficiently.
I really respect Ucko’s work even if I don’t think his “ideational insurgency” stands up; an insurgency is contesting for government power, and his “ideational insurgency” is too diffuse for that. It’s basically terrorism, which also isn’t a viable alternative governing system. But what impressed me was Ucko’s willingness to use right-wing domestic extremism in the U.S. as his case study for ideational insurgency, and directly connecting it to the January 6 uprising. Ucko does a lot of work for the Defense Department, and his writings are widely read in the national security and special operations communities—communities with no small number of people who, sadly, wish 1/6 had ended differently. It takes real professional courage to call them out in this way.
I actually think Ucko missed the mark in evaluating the Maga insurgents as ideational insurgents when it’s very clear to me they perfectly reflect his idea of infiltrative insurgents. The Magas are a combination of a “legitimate” (leaning more on those quotation marks every day!) political party that also uses violence and the threat thereof to advance its political agenda while staying below the threshold of violence that would demand a full-throated government response. While Nazi comparisons are fraught, this isn’t meaningfully different from the way the Nazi Party used the Sturmabteilung in their rise to power, except the SA had cool uniforms.
Are Nazi comparisons fraught? Well, Ron DeSantis just vowed to “slit my throat” if he’s elected, so I’m fine calling him the Gauleiter of Florida.
Do. Not. Panic. I concede none of this is good. Biden’s current polling numbers suck, even as the economy is doing great (I hate that we connect presidential popularity with economic performance, but that’s what we do). If Trump had a 15 percent chance of beating Hillary in 2016 (as 538 gave him), he’s got at least a 40 percent chance of beating Biden now. That’s bad! But I argue we’re still in a good place.
Magas and the relatively-small number of Resistance-anti-Magas like you MSU subscribers are the only people in America closely following politics or current events. We’re the only ones with strong opinions. The rest of America won’t pay attention for at least another year. That’s plenty of time for them to notice things are perking up.
Votes matter, not polls, and Dems are over-performing their norms by ten points, and that’s even before counting the pasting Magas just got in Ohio’s referendum on referenda. Amazingly, pundits still aren’t connecting the Dobbs fallout—and Supreme Court corruption—to their Trump-Biden horserace talk. This is Trump’s Supreme Court, and they’re working as a perfect foil for Dems, and that’s not going to stop.
Even better, Trump officially is making this election a referendum on the 2020 election, and thus a referendum on 1/6. I’m deeply troubled that only about 60 percent of Americans believe Biden won fairly and 1/6 was bloody treason, but hey, 60 percent wins an election every time. No one outside Maga wants to re-litigate 2020, but that’s exactly what they’re going to do, and I remain confident they’ll be punished for it.
My biggest fear is third parties, and even there I’m not panicking yet. RFK Jr. is pushing right-wing talking points in almost exclusively right-wing media; I think he’ll peel more from Maga than from us. Cornel West is going to get pressure from wiser fellow-travelers like Bernie and AOC, and we’re already learning problematic things about him. No Labels and Joe Manchin are scaring me most, because No Labels really might be able to get on the ticket and put its Maga-funded Harlan Crow dark money into key states that could be a real danger. Or not: Manchin’s record on abortion is a mess, and he’s certainly not going to appeal to a youth vote.
It really bothers me that this election is even up for debate, but overall, I agree with Dan Drezner: I’d still rather be in Biden’s position than anyone else’s.
I’m a big fan of Robert Pape’s research at University of Chicago on radicalization and violent extremism, but as he looks at sentiments regarding the legitimacy of violence on Left and Right, I wonder if “violence” is too broad a term. I suspect Americans who say violence would be justified to protect Black voting rights probably are thinking more of deploying the 101st Airborne than a mob storming something.
Florida recently signed a deal to use material from the PragerUKids program in the public schools, and other states are thinking about it. Here’s a good look from Media Matters at just what’s in the Prager curriculum.
Florida Gauleiter DeSantis has removed another elected Democratic prosecutor for not doing her job the way he’d like it done. I guess this is legal under Florida law, but the idea of elected officials being able to remove other elected officials is just amazeballs to me.
Security Sector Reform
Cops do a lot of things, but not preventing or solving crime. Reuters’ Hassan Kanu notes that even the police’s own reporting doesn’t pitch them as crime-fighters.
Connecticut has a good news story to tell about bringing down both crime and incarceration.
This article from the Detroit News has some interesting takes on how the Michigan State Police are trying to improve, especially with better youth outreach, but the stats here on their makeup are as distressing as they are unsurprising.
Piper French nails two great points in one article: 1. U.S. Immigration and Customs Enforcement fancies itself above the law, and 2. Anytime Black people win elective office, some White people will act to limit their power no matter how hypocritical it makes them. Note to the Biden Administration: ICE works for you (in theory). Is this how you want them spending their time?
SpyTalk’s Jeff Stein flags there just isn’t much room for confidence that federal law enforcement is serious about right-wing threats until they’re right at the line of imminent. Hey, trying to frame Black protesters takes a lot of time!
Kristofer Goldsmith’s Task Force Butler does excellent work tracking extremist groups, especially their nexus with veterans. He has a great deep dive here on New England’s NSC-131. I think he’s a bit too kind to law enforcement, though. I’m sure there are plenty who have trouble imagining these guys are more than local punks, but I’m equally sure there are several in every local force who are supporting them, or at least their goals.
Good Reads
This Greg Sargent piece citing Harvard research from John Della Volpe came out a bit too late for my last youth-themed edition, but reinforces it nicely. At this point, the Magas are trying harder to suppress young voters than win them.
Citizens for Responsibility and Ethics in Washington (CREW) have put together an excellent brief we should all try using in our respective states to sue to disqualify Trump from the ballot under the 14th Amendment for leading an insurrection. As CREW notes, this doesn’t require some conviction for a particular crime of “insurrection” in court; it’s a disqualification that would be adjudicated like being underage, or not a resident.
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