Acting AG Rosen Must Bring the Full Weight of the Law Against Today’s Violence at the Capitol
Numerous reports say that pro-Trump protesters have invaded the Capitol to make it impossible for Vice President Pence (who has been evacuated) to count the electoral votes. One woman has been shot, although the specific circumstances are unclear at this hour.
This is intolerable. If the rule of law means anything, it means that we forswear violence and intimidation in favor of peaceful persuasion and legal process. I understand that many on Trump’s side feel urgently, and not entirely without basis, that the election was infected with fraud. But adherence to law is so hard precisely because its value is so great: It demands that we restrain even our most urgent feelings in favor of peaceful (though often maddening) process. The alternative to the rule of law is the rule of the jungle.
The upshot is that Acting AG Rosen must see to it that the full weight of the law be brought against the Capitol invaders. If intimidation and force are not acceptable for BLM and Antifa — and they aren’t — they are not acceptable for anyone else, either. Let the prosecutions begin.
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Can you more fully explain the foundation for your statement that the Trump’s sides feelings “that the election was infected with fraud” is “not entirely without basis.” I have seen lots of claims of widespread election fraud, but little solid evidence in support of those claims. Can you more fully explain what you view as the reasonable basis for feeling “the election was infected with fraud”?
Sure. Big city fraud (e.g.,Chicago, Philly) is common. No serious person even disputes it any more. I don’t know how much there was, but you’d have to be nuts to say that, out of 154,000,000 votes cast, none of them was fraudulent. Since even one phony vote qualifies (though not by much) as an infection (ask what happens when you get just one coronavirus), it’s fair to say that a claim of fraud is not “entirely” without basis. And neither I nor Bill Barr nor Andy McCarthy nor other sensible conservatives have made claims of “widespread” fraud, whatever unknown number that might turn out to be.
But let’s not miss the obvious main point of my post, which is that even if there was fraud ALL OVER THE PLACE, or that Mr. Protester sincerely thinks there was, he is STILL bound to abjure violence and self-help in favor of the rule of law and legal process.
You will recognize this as being the first cousin to my arguments against jury nullification. A juror has every right to think drug laws stink, but no right to put his own opinions ahead of those that lay behind the democratic adoption of drug prohibition, and no right to ignore the outcome of the democratic process in favor of what he (very sincerely) believes it should have been. I would say exactly that to today’s protesters when they go on trial. Wouldn’t you?
To be clear, Bill, you seem to admit there there is no reasonable basis to believe there was any widespread fraud, and you seem to have no actual evidence of any fraud at all. I have seen the PA lieutenant gov has found evidence at least two cases of fraudulent votes in PA as part of efforts to create additional Trump votes, but that would not seem in any way to provide a basis for Trump supporters to feel “that the election was infected with fraud.” It is telling, but sad, that you seem keen to legitimate the feelings of rioters without being able to provide any sound justification for those feelings. It is quite interesting to discover that you are willing to be a snowblower for seditious snowflakes.
In any event, I would be eager to hear your guess as to how many of today’s rioters will be federally prosecuted. If federally prosecuted, I assume you think “decency defenders” should urge them all to plead guilty, right? I actually think it could be quite useful to have a trial if the rioter was eager to claim that he was reasonable motivated to prevent the certification of a fraudulent election. The trial could allow the rioter to put forward claimed evidence of election fraud (since it seems you cannot), and it would make for a remarkable setting for a jury to adjudicate a common-law claim of necessity. I would trust jurors to adjudicate these kinds of claims, since that is the reason we have juries and I have great faith in our adversarial system.
If prosecuted and ultimately sentenced after pleading guilty, I wonder if you think a “decency defender” would be doing his job well if she sought to submit in mitigation that former DOJ lawyer Bill Otis had witten that the rioter had a sound basis to feel “that the election was infected with fraud”? As you know, trials are rare, sentencings common. I sincerely wonder if you think it a valid sentencing consideration that a person’s protest went too far when that person felt “urgently, and not entirely without basis, that the election was infected with fraud.”
In your first paragraph, you again bank on the conspicuously undefined phrase “widespread fraud.” I don’t know what that means and you don’t say. I agree with Bill Barr that there is no visible evidence of fraud sufficient to have changed the outcome. If your proposition is that there was no fraud at all, hey, go right ahead and believe that! But you give away the game by your use of the phrase,”widespread fraud.” If you actually thought there was no fraud at all out of 154,000,000 votes, you wouldn’t need or use the word “widespread.” (Of course you’re way too smart to hold the belief that there was no fraud, but you seem to enjoy batting it around).
“It is telling, but sad, that you seem keen to legitimate the feelings of rioters without being able to provide any sound justification for those feelings.”
Are you missing the point or evading it? I don’t care what their feelings were, and I don’t care if they were justified. The gist of my argument, which you can’t help but understand, is that feelings no matter how sincere don’t justify illegal behavior. That’s the whole point of my opposition to jury nullification (an opposition with which you strenuously disagree, at least when it comes to drug pushers).
“In any event, I would be eager to hear your guess as to how many of today’s rioters will be federally prosecuted.”
Don’t know. It will probably be up to Merrick Garland. I hope every last one of them.
“If federally prosecuted, I assume you think ‘decency defenders’ should urge them all to plead guilty, right?”
Right. I think people should tell the truth about their behavior and accept the consequences. I understand that view is considered an outrage by the defense bar, accountability being for suckers.
“I actually think it could be quite useful to have a trial if the rioter was eager to claim that he was reasonable[y]motivated to prevent the certification of a fraudulent election.”
The whole point of having law rather than muscular solipsism is that individuals don’t get to decide all by themselves what is and is not legally fraudulent. They can have their opinions, sure, but they don’t get to act on them by storming the Capitol. I had thought this was pretty elementary.
Vigilantism is really a bad idea, no?
“The trial could allow the rioter to put forward claimed evidence of election fraud (since it seems you cannot), and it would make for a remarkable setting for a jury to adjudicate a common-law claim of necessity. I would trust jurors to adjudicate these kinds of claims, since that is the reason we have juries and I have great faith in our adversarial system.”
The reason we have juries is not to make ad hoc judgments about what this particular group of 12 views as a necessity — that would be the reason we have MOBS. The reason we have JURIES instead of mobs is to distill the facts from admissible evidence and apply the law AS ENACTED BY THE LEGISLATURE AND GIVEN BY THE COURT.
“If prosecuted and ultimately sentenced after pleading guilty, I wonder if you think a ‘decency defender’ would be doing his job well if she sought to submit in mitigation that former DOJ lawyer Bill Otis had written that the rioter had a sound basis to feel “that the election was infected with fraud”?
Nope, I would think that defense counsel was trying the all-too-typical fancy dance of delving into Mr. Nicey’s feelings, from whatever source allegedly derived. Feelings have no legal relevance, as defense counsel would know. A violent trespass onto public property doesn’t become any better because you “feel” justified. I’m sure you can find a bank robber who “feels” justified because “property is theft,” or a child rapist who “feels” justified because he has concluded the age of consent should be six. No normal person takes an interest in such malarkey, however, and still less should the law do so.
Bill, I am trying to better understand what you think is the “basis” for the Trump side’s feelings “that the election was infected with fraud.” As I mentioned, the concrete evidence of fraud I have seen put forward has involved a few Trump supporters. (Notably, Trump claimed there was fraud during the 2016 election, but the commission he created to investigate concluded with no findings. And, if I recall correctly, the only big recent example of election fraud involved Republicans in North Carolina.) Given the state of the evidence, I remain eager to unpack the evidentiary foundation for your effort to legitimate the Trump side’s feelings “that the election was infected with fraud.” Your explanation so far suggests to me that you may be infected by Trumpism, but I am still unsure if you are prepared to state that there is no REASONABLE basis for anyone to feel the 2020 election was “infected with fraud.”
Since you know basic criminal law, you know that sincere feelings that have a REASONABLE basis can sometimes justify otherwise illegal behavior. If I sincerely and reasonably feel my life is in danger because a visitor in my house is wielding a kitchen knife, it can be legal for me to shoot him (perhaps even seven times) in self defense. But a feeling of fear would not justify my shooting if a reasonable person could clearly see that the visitor was using the knife just to chop onions. Because the reasonableness of “feelings” can be quite consequential in many applications of criminal law, I am so very eager to unpack what you might consider the basis for the Trump side’s feelings “that the election was infected with fraud.”
What is notable in this setting is a rioter might say he had a “reasonable” basis to feel “that the election was infected with fraud” because that is what the President of the United States has been saying over and over and over again. If a person was told over and over and over again by a local police department that, say, someone in a stolen FedEx truck was scheming to break into houses in his neighborhood, that person might have a reasonable basis for feeling he needed to “stop the steal.” Indeed, if that person were thereafter to do something rash in response to those feelings (say break into a FedEx truck), I would certainly be keen to investigate further the particulars surrounding the local police department egging on this person.
So, as I think this through, I am eager to hear, Bill, if you would call for AG Rosen to open a criminal investigation ASAP into Prez Trump’s role and mens rea in fostering “violence and intimidation” among his supporters. I think it could be important for Rosen to start the investigation ASAP so that future AG Garland can continue what a Trump appointee started rather than seem partisan for starting this himself (and perhaps so this does not become a confirmation debate)..
I keep asking about your basis for legitimating the feeling “that the election was infected with fraud,” because that seems to be the key “malarkey” fostered not only by Prez Trump but by a sizeable number of elected GOP officials. I continue to want to better understand if you think there is REASONABLE basis for such a claim, as the underlying realities ought to be critical in effectively sorting through moral and legal responsibility for the dramatic acts of sedition we all witnessed yesterday.
As I was saying, if you want to take the position that there was no fraud in this election, feel free. I doubt, however, that that’s the position you want, since it’s nuts. In an election of this size, there is certain to have been fraud. I don’t know how much and neither do you. Because Bill Barr, who had vastly more investigative resources at his disposal than either of us, concluded that the amount of fraud — whatever it was — was insufficient to change the outcome, and because that finding was difficult for him to make because it got him in hot water with his boss, I will go with it as being a necessarily imprecise, but good enough, estimate.
Your example of when a person can act with force is illuminating, but not in the way you intend. The LAW provides, and has provided for centuries, that a person can react with deadly force when he has an objectively reasonable, even if mistaken, belief that he is in imminent danger of grave bodily harm or death. But absolutely no law provides that, if you have an objectively reasonable (or other) belief that an election was infected with fraud, YOU PERSONALLY can react by forcibly invading the Capitol to prevent the electoral votes from being counted. Instead, the law remands you to pursuing peaceful remedies: You file a suit. The Trump forces filed dozens of them.
They all flopped. At that point, your remedies have come to an end (unless you believe in vigilantism — do you?).
If I didn’t know you to be a smart guy, I would think your stance here exposes a misunderstanding of the most basic groundings of law. To live by the rule of law, and attain all the benefits and protections that confers, means that you as an individual surrender what would be your option — in the jungle — to use forcible self-help. Instead, you agree to confine your conduct to what the law allows even if you have a legitimate, or even a compelling, basis for thinking the legally-embraced outcome was wrong.
The failure to understand all that was the basic failure of yesterday’s rioters and the reason they belong in the slammer. It doesn’t make any difference how much election fraud there was (something, that as I mentioned, neither one of us knows and they don’t know either). The remedy under the rule of law is not self-help. It’s not invading the Capitol. It’s the next election, and working before then to persuade the authorities to adopt and enforce stronger measures to combat fraud.
Again — do you believe in vigilantism or not?
P.S. What the concerned citizen does in your FedEx truck example is call 911 and say, “There’s a suspicious FedEx truck in the neighborhood. Send the cops!” He does NOT just break into the truck himself.
I do not believe in vigilantism, Bill, nor do I believe in fueling or legitimating potential vigilantes by lying in order to stoke grievances. Based on what I have seen, any assertion that the election was “rigged” or “stolen” is a bald-faced lie. Do you agree? Let’s start there.
Though I do not know the particulars of a possible charge of “seditious conspiracy,” I share your sense that even an “objectively reasonable” belief that an election was infected with fraud would not present a legal defense at trial to any charges based on forcibly invading the Capitol. But I do think it likely such a belief could and would be presented as a sentencing consideration under 3553(a)(1). (I recall that the “pizzagate” armed gunman advanced his unreasonable QAnon beliefs in mitigation.) And I think prosecutorial and judicial responses to such claims in mitigation might well be influenced by the reasonableness of the offender’s belief that served as the motive for his or her wrongful behavior.
I do not seek in any way to defend vigilantism, Bill, but rather seek to understand whether you think there was a reasonable basis for the “feelings” driving yesterday’s vigilantism. I share Senator Romney’s view that the failure of many GOP officials to tell their supporters the truth about the election played a critical role in what we witnessed. And that is why I now seek your clear statement as to whether you think assertions about a “rigged” or “stolen” election amounts to lying. For someone who says “people should tell the truth,” I am trying to understand your version of the truth about the election and your claims that there was a basis for Trump supporters to feel that it was infected with fraud.
I have not said there was “no fraud” — I have noted that extent evidence of fraud appears to be fraud attempted by Trump supporters, which is why I do not see any reasonable basis for Trump supporters to feel the election was “infected with fraud.” And that is precisely why I am asking you to explain what you think is the basis for the feelings that produced yesterday’s lawlessness. I surmise you are content to just say “because there has to be some fraud in a big election.” Okay, if that is really all you have in support of your claim, that is very helpful and telling. But I want to make extra sure there is nothing more you have in mind, because I have heard all sort of remarkable claims in recent months from other former Justice Department lawyers.
“I do not believe in vigilantism, Bill, nor do I believe in fueling or legitimating potential vigilantes by lying in order to stoke grievances.”
Wow, I sure wish you had said that when the BLM crowd was lying about the Ferguson incident in order to stoke grievances against the police. The lie was (and in many leftist circles remains, “Hands up, don’t shoot.”). But the evidence showed that Michael Brown’s hands weren’t up and that instead the officer, who was run out of his job and out of town by race-huckstering hate, fired in legitimate self-defense.
“Based on what I have seen, any assertion that the election was “rigged” or “stolen” is a bald-faced lie. Do you agree? Let’s start there.”
No, let’s start with my comment above. But after that, sure: The claim that Biden stole the election and that is was rigged for him is false. He got more legitimate votes in the states he needed, so far as I have any reason to believe. Trump lost, as almost all my conservative friends expected him to. He just squeaked by in 2016, and a pandemic year is not going to be kind to incumbents. This is not really all that hard to understand. Many conservatives are just in denial about Trump just as many liberals and libertarians are in denial about crime.
If I were a judge, a convicted rioter who claimed at sentencing that he was acting as a patriot because he believed the election was rigged would get a harsher sentence, not a more lenient one. Such a claim would demonstrate that he still hasn’t learned that his beliefs do not entitle him to take the law into his own hands. That view of the social contract is false, inconsistent with the rule of law, and dangerous. No grounds for leniency there in my book.
As I think you know at this point, I’ve had more of my fill of criminals claiming that someone else is responsible for their behavior. Thus, that Trump egged them on (or at least arguably egged them on) reflects quite poorly on Trump but does not abate the rioters’ own responsibility. This is just a variant of the MS-13’s low level member trying to abate responsibility for slashing some competing gang member to death because, “the head of the gang said I should.” Sorry there, fella. It was your decision to “follow directions” rather than doing what you full well knew was the right thing. Now you can be accountable for it.
Same deal with the rioters.
“And that is precisely why I am asking you to explain what you think is the basis for the feelings that produced yesterday’s lawlessness.”
I have this strange sensation that I’m repeating myself. I don’t care what the basis of the rioters’ “feelings” was because, as you sometimes seem to agree, their feelings do not justify their acts. It wouldn’t make any difference if they claimed (as some defendants do) that “the voice of God told me” (to take the TV or swipe Grandma’s purse or rape the ten year-old). First, it’s a lie — God said no such thing — and second, even if it were true, you, Mr. Defendant, are obligated to follow the law, not your feelings and not voices in your head — and not, in the present context, what you take Donald Trump to be saying.
“But I want to make extra sure there is nothing more you have in mind, because I have heard all sort of remarkable claims in recent months from other former Justice Department lawyers.”
Somehow I don’t think you mean the former DOJ lawyer who fabricated part of a FISA application in order to obtain authorization to electronically spy on some of Trump’s aides. But correct me if I’m wrong about that.
I am troubled by the “former DOJ lawyer who fabricated part of a FISA application,” and it confirmed my sense that DOJ lawyers should not get the deference that they seem all too often to get from federal judges in all sorts of settings. And that other former DOJ lawyers like Rudy Guliani and Sydney Powell seem comfortable telling one fabulous lie after another while inciting others to violence worries me still further that many prosecutors come to believe they can lie with impunity based on their feelings that the end justifies the means. I do not think I have seen you call out the lies by Guiliani and Powell (let alone Prez Trump) which all seem to me particularly corrosive to our democracy. (Meanwhile, I do share your concern that the facts of the Ferguson incident got lost as the BLM movement sought another signature concern after Zimmerman was acquitted.)
Conservatives being in denial about Trump seems a lot different than a large number of GOP officials embracing and advancing Prez Trump’s repeated lies about the election being “rigged” and “stolen.” And your MS-13 analogy is useful: I agree that the low-level folks do not escape responsility by saying gang leaders pushed them to commit crimes. But I here, the “gang leaders” would seem to be Prez Trump and others around him who continued pushing patently false claims about the election being “rigged” and “stolen.” Do you support DOJ at least exploring charges against Prez Trump and others around him who have been inciting violence and related criminal behaviors with these lies about the election being “rigged” and “stolen”?
You call in this post for “the full weight of the law be brought against the Capitol invaders.” I would like to know if you believe that should include exploring possible charges against Prez Trump and others around him who have been inciting violence and related criminal behaviors with lies about the election being “rigged” and “stolen.”
Some of this information looks a lot like evidence of a significant problem . If Trump had won, and this information were presented implicating GOP voter fraud, I suspect that Douglas would want a full hearing, and question why the major media was not digging into it.
Forensics expert testimony before Georgia Legislative committee: https://youtu.be/KWmPp4lFOCU
Data presented to Nevada Superior Court: -2,468 votes by voters that legally changed their address to another state or country
-Appx 42k voters who voted twice in NV
-Appx 1,500 voters listed as deceased by the SSA
-Almost 20k NV voters with a non NV mailing address
-Appx 6k USPS flags on vacant addresses
December 28, as reported by Gateway Pundit: The Pennsylvania House has just uncovered that the certified results in Pennsylvania for President are in error by more than 200,000 votes. This is more than twice the difference between President Trump and Joe Biden.
https://pjmedia.com/election/tyler-o-neil/2020/12/01/whistleblower-i-drove-thousands-of-ballots-from-new-york-to-pennsylvania-n1184008
December 1, USPS truck driver testified that he had driven thousands of ballots from Bethpage, N.Y., to Lancaster, Pa., two weeks before Election Day. Phill Kline, a former attorney general of Kansas and director of The Amistad Project of the Thomas More Society, said The Amistad Project has corroborated the truck driver’s story.
“The evidence demonstrates, and it’s through eyewitness testimony that’s been corroborated by others by their eyewitness testimony, that 130,000 to 280,000 completed ballots for the 2020 general election were shipped from Bethpage, New York, to Lancaster, Pennsylvania,” to a facility incapable of processing them, Kline explained in the press conference. A spokeswoman later clarified that the estimate ranges from 144,000 to 288,000 ballots.
Michael, if you really believe some of these outlandish contentions, I have a lot less respect for you and the veracity of your work. All of these claims and so many others have been thoroughly debunked by state election officials and others. The claims by Phil Kline are especially comical because they defy all logic — why would someone in PA send fraudulent ballots to NY to then have them driven back to PA to a facility that could not process them?
(Phil Kline, as you should know, was indefinitely suspended from law practice in 2013 by the Kansas Supreme Court which “found that Kline violated 11 rules governing the professional conduct of attorneys during his tenure as the state’s highest law enforcement officer and while he served as Johnson County district attorney.” https://www.kansascity.com/news/local/article329802/Phill-Kline-is-indefinitely-suspended-from-practicing-law.html )
Of course, state and federal courts were open to hear these and other claims of fraud, and dozens of them considered and rejected a wide array of far-fetched allegations on the merits. The US Attorney General stated he saw no evidence of significant fraud. This is why I was pressing Bill Otis to explain if and how he thought there was a reasonable basis for feelings “that the election was infected with fraud.” The allegations that I have seen strike me as quite comparable to allegations that 9/11 was an inside job or that QAnon is really onto something. If that is the quality of allegations serves as your standard of proof and veracity, I will now better understand what to make of some of your other claims.
As Bill Otis is rightly keen to say, “people should tell the truth,” and the truth is that people asserting that the election was “rigged” or “stolen” are simply lying. If you are fine with liars “on your team,” so be it. But take the time to realize they are lying so you do not risk being conned again and again.
All of the information has been debunked? By state election officials who have no desire to find fraud in an election that put people they support in office. It was the Pennsylvania House that found that the certified election results were off by 200,000. Douglas, I’m beginning to wonder what it would take to make you skeptical. I have a lot less respect for your willingness to look outside of your bubble. I am guessing that you are still convinced the evidence of Russian collusion was legitimate. By the way, Bill Clinton was also disbarred. Does that mean nothing he says has any veracity. I guess that the 900 or so folks who gave sworn affidavits under penalty of perjury are also all liars. Nothing to see here folks.
I do not believe much of what Bill Clinton has to say because he lied under oath. Interestingly, he is also a former prosecutor (as he was AG in Arkansas) Meanwhile, it was not the entire PA House in toto that made any finding, it was some PA GOP members, and that was soundly debunked by others. Do you think Trunp-appointed Judge Bibas got it wrong when he dismissed PA fraud claims? Do you not trust our courts? Can you cite to a single court ruling upholding a claim a fraud? A single one? I just ask for one, con you cite one? Or do you think are court are corrupt, too? I am happy to debate these issues for as long as you would like, Michael. Please show me all the evidence you have that supports fraud.
Just want to make sure you did not miss this bit of recent reporting about the views of then-Attorney General William Barr concerning the various foolish election fraud claims: “The president’s theories about a stolen election, Barr told Trump, were ‘bullshit’.” https://www.axios.com/trump-barr-relationship-off-the-rails-b33b3788-e7e9-47fa-84c5-3a0016559eb5.html
I did miss that, but it’s in line with other things he’s said, so I’m not surprised. If you’d ask Barr, “Was there fraud in the election?” he’d say, sure, there’s fraud to one extent or another in every national election, and there were more opportunities for fraud with increased mail-in balloting in this one. If you’d ask him whether there was a giant (international?) conspiracy to steal the election, joined by, among others, the Republican governors and secretaries of state in Georgia and Arizona, he’d tell you that, whatever drug you were on, you need to quit right fast.