The riot on January 6, 2021, is to insurrection as sticking pins into a voodoo doll is to murder. The deed and the intended result are connected only by a magical cause-and-effect. Imagine that the rioters had taken over the Capitol and driven Congress away. Imagine that they had stayed for longer than a few hours, like the more numerous protesters who occupied the Wisconsin state capitol for a month in February and March 2011. If you seriously believe that their action would or could have kept Donald Trump in office after January 20th, your grip on reality is on the level of Alex Jones or Joy Reid. The riot was an explosion of irrational anger, much like, though far less deadly and destructive than, the rioting that swept major cities during the summer of 2020.
This week, Democrats in Congress and progressive commentators in the media are calling on us to remember January 6th as a day that will live in infamy. On New Year’s Day, the New York Times published an editorial that deserves comparison with the John Birch Society’s declaration that the United States under President Eisenhower was “60 percent communist controlled”. According to the Times editorial board, the insurrection that began last January 6th is ongoing. “In short, the Republic faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends.” Tora! Tora! Tora!
That isn’t to say that the riot lacked consequences. It has become the bludgeon that the self-proclaimed “defenders of our democracy” wield to smash free speech, fair elections and the rule of law. As Roger Kimball suggests, the Times men were “writing with a mirror in front of them”.
The foremost grievance that motivated the January 6th rioters was their conviction that the 2020 election was marred by massive ballot fraud. What gave that grievance wings was the extraordinarily slovenly way in which the election was conducted. Unprecedented mail-in voting and lax attention to the accuracy of voting rolls offered unprecedented opportunities for fraud. We will never know, because comprehensive investigation after the fact is impossible, how many votes were cast by ineligible or fictional persons.
What I think is the right response to our invincible ignorance is acceptance of the results that were certified. Even if they are wrong, there is no prospect of finding evidence strong enough to prove that the real outcome was different, and in the absence of that evidence, reversing Joe Biden’s victory would have dire consequences. In 1960, when fraud in Illinois and Texas was barely hidden, Richard Nixon chose to step aside for an unqualified poseur rather than risk a Constitutional crisis. President Trump should have followed that precedent.
He didn’t. Instead, he pursued efforts to overturn the election through legal means. The theories that he and his lawyers put forward were, in my judgment, hopelessly weak. They went nowhere in either the courts or Congress. Making weak arguments is not, however, “insurrection”. If it were, very few politicians would be out of jail.
The riot didn’t threaten the American political order. The partisan reaction, of the sort that one expects in banana republics, is more ominous.
The Democratic majority in the House of Representatives has set up a committee to “investigate January 6th”, to which it has appointed nine Democrats and two Republicans who have already announced their verdicts. Although Speaker Pelosi likens it to the commission established to investigate the intelligence failures that led to 9/11, its mission isn’t to determine how it was possible for a mob to invade the Capitol and what measures can reasonably be taken to guard against repetition. Instead, its members have stated in advance that all blame lies with Donald Trump and his allies; the committee’s only task is to find evidence to support that conclusion.
Committee vice chairman Rep. Liz Cheney (?-Wyo.) has said of the riot, “I think what Donald Trump did is the most dangerous thing, the most egregious violation of an oath of office of any president in our history.” In the same interview, she asserted that Republicans in the House who voted against the second Trump impeachment were motivated by “their personal security or their family security, their concerns about that affected the way that they felt they could vote”. How can you doubt that Rep. Cheney has an open mind and judicious temperament?
The committee has not only prejudged the causes of the riot. It has also decided that giving or accepting mistaken legal advice is tantamount to insurrection. It has subpoenaed various Trump advisors not for anything they did in the Capitol or said to the rioters but for arguing that valid grounds existed to challenge some states’ certified electors and that the Electoral Count Act gives the Vice President the authority to rule on those challenges. Those opinions aren’t shared by many lawyers, but treating their espousal as a form of treason harks back to the Palmer Raids and Joe McCarthy.
Certain prominent Democrats have taken the next step, to open advocacy of deploying January 6th as a weapon to suppress political opposition. Marc Elias, the consigliere of Hillary Clinton’s 2016 campaign, recently tweeted a “prediction” that “we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress. We may even see litigation.”
Mr. Elias, the Democratic Party’s most active election lawyer, is in a position to make his prediction come true. In essence, he wants judges to expel from Congress members who engaged in conduct that falls within an extraordinarily strained definition of “insurrection”. The Constitutional provision that he cites was aimed at men who had disavowed allegiance to the United States and participated in a four year rebellion. Even with that provocation, the prohibition was laxly enforced. To apply it to Congressmen whose “treason” consists of disputing election results would combine tyranny with farce.
January 6, 2021, may live in infamy. If so, the reason will be not the violence of one afternoon but the ensuing quest to convert it into America’s counterpart to the Reichstag Fire.
Further Reading: Ann Althouse on “online sleuths who style themselves as ‘Sedition Hunters’”. Let me add that just as slovenly procedures undermine confidence in elections, so does official cooperation with “sedition hunters” undermine faith in the rule of law.
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