The Resurrection of the Insurrection Question

Did the events of January 6, 2021 amount to an insurrection? The question comes into fresh focus in a lawsuit seeking to thwart the establishment by President Trump of a $1.8 billion “Anti-Weaponization Fund.” The endowment comes as part of the settlement of Mr. Trump’s $10 billion lawsuit against the IRS for illegally leaking his tax information. Two police officers who worked at the Capitol that day allege that it violates the 14th Amendment.For that argument to carry the day, a court would have to conclude that an insurrection transpired on January 6. Section Four of the 14th Amendment ordains that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States” and that “all such debts, obligations and claims shall be held illegal and void.” The plaintiffs argue that January 6 was a “planned insurrection.”The complaint contends that the “rioters engaged in an act of “insurrection . . . against the United States” by attacking the Capitol in an attempt to prevent the lawful certification of a presidential election.” As our A.R. Hoffman reports, though, not a single January 6 defendant — and there were some 1,600 of them, one of DOJ’s largest law enforcement efforts ever — was ever charged with the crime of insurrection.Mr. Trump was tried in the Senate after being impeached for insurrection. The Senate discovered he was not guilty. Colorado wanted to bar him from the ballot on the basis of Section Three of the 14th Amendment. That bars from office anyone who once took the oath of office and then “engaged in insurrection or rebellion.” Only Colorado sought to disqualify Mr. Trump. It was blocked by a unanimous Supreme Court.It requires no brief for the events of January 6 — or for the fund chartered by Mr. Trump to compensate the participants in the riot — to mark the strangeness of alleging an insurrection when none has been charged in federal court or held to have occurred. Even Special Counsel Jack Smith, who held Mr. Trump singularly responsible for the events of January 6, demurred from seeking an indictment on the basis of insurrection.Democrats regularly refer to January 6 as an insurrection, but the most serious crime charged was seditious conspiracy. Mr. Smith declined to pursue that course against Mr. Trump, instead opting for deprivation of rights and other conspiracy and obstruction allegations. The 14th Amendment, drafted in the aftermath of the Civil War, requires a finding of “insurrection or rebellion” — by someone, somewhere.Mr. Trump’s anti-weaponization fund faces other hurdles. CNN calls it “a political liability for the GOP.” Support on Capitol Hill seems scant. Senator Thom Tillis calls it “stupid on stilts” and declares “my God, do you see where this would head? ” The question for the federal court in the Southern District of Florida is whether to find now that an insurrection occurred that long-ago January day.

The Resurrection of the Insurrection Question

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