Was the Capitol Riot an ‘Insurrection,’ and Did Trump ‘Engage in’ It?

Published

11 months ago

December 22, 2023

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“It’s self-evident,” President Joe Biden told reporters on Wednesday. “You saw it all. He certainly supported an insurrection. No question about it. None. Zero.”

Biden was referring to the Colorado Supreme Court’s recent ruling that Donald Trump is disqualified from that state’s presidential primary ballot under Section 3 of the 14th Amendment, which was originally aimed at barring former Confederates from returning to public office after the Civil War. As relevant here, Section 3 says “no person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

Biden, whose reelection bid would get a big boost from Trump’s disqualification, takes it for granted that the January 6, 2021, riot at the U.S. Capitol qualified as an “insurrection” under the 14th Amendment, and he says there is “no question” that Trump “engaged in” that insurrection. But the Colorado Supreme Court’s reasoning on both of those crucial points is iffy, and I say that as someone who thought Trump richly deserved his second impeachment, which was provoked by his reckless behavior before and during the riot.

On its face, that impeachment supports the court’s decision, which was joined by four of seven justices. The article of impeachment, after all, charged Trump with “incitement of insurrection” and explicitly cited Section 3. But that debatable characterization was not necessary to show that Trump was guilty of “high crimes and misdemeanors.”

Trump’s misconduct included his refusal to accept Biden’s victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to “faithfully execute” his office and to “preserve, protect and defend the Constitution.” It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.

Achieving the same result under Section 3 of the 14th Amendment, by contrast, does require concluding that Trump “engaged in insurrection.” But in reaching that conclusion, the Colorado Supreme Court never actually defines insurrection.

“At oral argument,” the opinion notes, “President Trump’s counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct.” But the court does not offer “a specific definition” either: “It suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”

That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to “hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power” by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.

They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court’s premise that Trump’s hotheaded supporters acted in concert with the intent of forcibly preventing “a peaceful transfer of power.”

Nor is it clear that Trump “engaged in” the “insurrection” that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that “‘engaged in’ requires ‘an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'”

Trump’s pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump’s demand that his supporters “fight like hell” to “save our democracy” literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump “literally exhorted his supporters to fight at the Capitol.”

The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be “marching to the Capitol building to peacefully and patriotically make your voices heard.” But they discount that phrasing as cover for Trump’s actual intent. Given Trump’s emphasis on the necessity of “fight[ing] like hell” to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence,'” which he accomplished by “develop[ing] and deploy[ing] a shared coded language with his violent supporters.”

That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context. It is harder to believe that he cleverly developed a “coded language” that he knew some of his supporters would understand as a call to violence.

Nor is it clear how the violence that Trump allegedly intended was supposed to benefit him. There was no realistic prospect that it would actually stop Biden from taking office, and in the end it did no more than delay completion of the electoral vote count. Meanwhile, it alienated former Trump allies (albeit only briefly in some cases), led to his second impeachment, and left an ineradicable stain on his presidency.

The Colorado Supreme Court’s belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both “directed” at inciting “imminent lawless action” and “likely” to do so.

The Colorado Supreme Court quotes the 6th Circuit’s elucidation of that test in the 2015 case Bible Believers v. Wayne County: “The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.”

It is hard to deny that Trump’s speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?

Applying the first prong, the court cites “the general atmosphere of political violence that President Trump created before January 6” as well as the “coded language” of his speech that day. As evidence of the “specific intent” required by the second prong, it notes that “federal agencies that President Trump oversaw identified threats of violence ahead of January 6.” It also cites what it takes to be the implicit message of Trump’s speech and his reluctance to intervene after the riot started.

“President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power,” the court says. “Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended.”

All of this evidence is consistent with recklessness and dereliction of duty. But it falls short of proving that Trump deliberately “encouraged the use of violence” or that he had a “specific intent” to cause a riot, let alone that he thereby “engaged in insurrection.”

Business

Apple sued by Which? over iCloud use – with potential payout for 40 million UK customers

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1 hour ago

November 14, 2024

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Apple sued by Which? over iCloud use - with potential payout for 40 million UK customers

Consumer rights group Which? is suing Apple for £3bn over the way it deploys the iCloud.

If the lawsuit succeeds, around 40 million Apple customers in the UK could be entitled to a payout.

The lawsuit claims Apple, which controls iOS operating systems, has breached UK competition law by giving its iCloud storage preferential treatment, effectively “trapping” customers with Apple devices into using it.

It also claims the company overcharged those customers by stifling competition.

The rights group alleges Apple encouraged users to sign up to iCloud for storage of photos, videos and other data while simultaneously making it difficult to use alternative providers.

Which? says Apple doesn’t allow customers to store or back-up all of their phone’s data with a third-party provider, arguing this violates competition law.

The consumer rights group says once iOS users have signed up to iCloud, they then have to pay for the service once their photos, notes, messages and other data go over the free 5GB limit.

“By bringing this claim, Which? is showing big corporations like Apple that they cannot rip off UK consumers without facing repercussions,” said Which?’s chief executive Anabel Hoult.

“Taking this legal action means we can help consumers to get the redress that they are owed, deter similar behaviour in the future and create a better, more competitive market.”

Apple ‘rejects’ claims and will defend itself

Apple “rejects” the idea its customers are tied to using iCloud and told Sky News it would “vigorously” defend itself.

“Apple believes in providing our customers with choices,” a spokesperson said.

“Our users are not required to use iCloud, and many rely on a wide range of third-party alternatives for data storage. In addition, we work hard to make data transfer as easy as possible – whether it’s to iCloud or another service.

“We reject any suggestion that our iCloud practices are anti-competitive and will vigorously defend against any legal claim otherwise.”

It also said nearly half of its customers don’t use iCloud and its pricing is inline with other cloud storage providers.

How much could UK Apple customers receive if lawsuit succeeds?

The lawsuit will represent all UK Apple customers that have used iCloud services since 1 October 2015 – any that don’t want to be included will need to opt out.

However, if consumers live abroad but are otherwise eligible – for example because they lived in UK and used the iCloud but then moved away – they can also opt in.

The consumer rights group estimates that individual consumers could be owed an average of £70, depending on how long they have been paying for the services during that period.

Apple is facing a similar lawsuit in the US, where the US Department of Justice is accusing the company of locking down its iPhone ecosystem to build a monopoly.

Apple said the lawsuit is “wrong on the facts and the law” and that it will vigorously defend against it.

Big tech’s battles

This is the latest in a line of challenges big tech companies like Apple, Google and Samsung have faced around anti-competitive practices.

Most notably, a landmark case in the US earlier this year saw a judge rule that Google holds an illegal monopoly over the internet search market.

The company is now facing a second antitrust lawsuit, and may be forced to break up parts of its business.

And in December last year, a judge declared Google’s Android app store a monopoly in a case brought by a private gaming company.

“Now that five companies control the whole of the internet economy, there’s a real need for people to fight back and to really put pressure on the government,” William Fitzgerald, from tech campaigning organisation The Worker Agency, told Sky News.

“That’s why we have governments; to hold corporations accountable, to actually enforce laws.”

World

‘He was the light of my life and I lost him’: How a famous surgeon died in an Israeli prison after being taken from Gaza hospital

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1 hour ago

November 14, 2024

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'He was the light of my life and I lost him': How a famous surgeon died in an Israeli prison after being taken from Gaza hospital

As a famous orthopaedic surgeon, Dr Adnan Al-Bursh spent much of his career fixing broken limbs and broken bodies at Gaza’s Al-Shifa Hospital.

One of the best-trained doctors in the enclave, a photo showing him covered in blood in Al-Shifa’s operating theatre went viral in 2018.

When war broke out last October, he worked around the clock. Pictures stored on his mobile phone show him standing in a hole, swinging a blunt-edged shovel as the hospital descended into crisis.

It had run out of fuel, food and basic pain relief and there was no more space to store dead bodies. Dressed in hospital scrubs, Dr Al-Bursh and his colleagues dug mass graves as the sound of explosions rang out behind the hospital’s walls.

Soon after the outbreak of the conflict, the surgeon, along with his wife Yasmin, realised that their world had changed forever.

“Adnan was needed every time there was a war,” she recalled. “So, I told him, ‘get ready, there will be lots of operations, they will need your help’. He went to hospital to receive the injured and stayed for 24 hours. He did not stop.”

Dr Al-Bursh spent his days in the operating room and slept in the staff room at night.

He also kept a diary of sorts with his mobile phone, documenting the increasingly desperate scenes unfolding around him.

“Despite the pain, we are steadfast,” he said as he filmed the scene in a crowded operating theatre.

Israel said the foundations of Al-Shifa were laced with tunnels where Hamas operated a ‘command-and-control centre’, something Hamas denies.

As Israeli troops advanced towards the facility, Dr Al-Bursh captured the mood inside. Another video found on his mobile phone shows a colleague in the staffroom recalling a painful conversation with his wife.

“I remember that she only asked one thing of me, what do you think it was? That request was ‘just let me see you smile’.

“Smile. It’s the first thing I want to do after this war, if God saves us.”

By mid-November, Al-Shifa was under siege by Israeli troops.

A week later, patients, staff and some 50,000 displaced residents sheltering in the compound were ordered to evacuate.

Dr Al-Bursh captured the scene of long columns of people walking towards southern Gaza.

But the surgeon did not follow them. Instead, he went northeast to another facility – the Indonesian Hospital – still operating in northern Gaza. What he found on his arrival horrified him.

“I was shocked by the size of the catastrophe here,” he said in a video. “There are injured people who have been waiting for their operations for more than ten days. [Their] wounds were severely infected.”

On 20 November 2023, the Indonesian Hospital was surrounded by Israeli tanks and later that evening, projectiles were fired into the second floor. At least 12 people were killed.

Dr Al-Bursh survived with minor scrapes but the front entrance of the facility was torn apart. “The destruction is everywhere,” he said in another video.

A spokesman for the IDF denied that Israeli forces were responsible.

By early December 2023, Dr Al-Bursh had moved to a small hospital, also in the north, called Al-Awda.

A series of pictures, posted on the hospital’s social media page, show him examining patients with fatigue etched on his face.

These are the last known images taken of the surgeon.

The Israeli military surrounded the hospital on 5 December, and the staff were worried about what the soldiers would do.

Dr Al-Bursh worked at Al-Awda alongside a friend and colleague, Dr Mohammad Obeid.

Eventually, the hospital’s director told them that they would have to leave the building.

“[The director] told us that the [Israeli army] have full data of all males aged between 14 and 65 at Awda hospital,” Dr Obeid said, tearfully. “They told him that if all men do not come down… they will destroy the Awda Hospital with all the women and children in it.”

We put this allegation to the IDF but they did not respond.

The men filed out of the hospital and five, including Dr Al-Bursh, were taken away.

“A soldier came up to us and called out Dr Adnan’s name, who was sitting next to me… I felt he was in a very difficult situation. The occupation soldier took him and the treatment was very rough.”

In a brief statement, the Israel Defence Forces (IDF) confirmed to Sky News that Dr Al-Bursh was detained by its personnel. On 19 December 2023, it says the surgeon was taken to an Israeli military base called Sde Teiman, which has been used for processing detainees since the early part of the war.

Allegations of physical, mental and sexual abuse are rife. A former camp inmate, Dr Khalid Hamouda, believes many of the prisoners at Sde Teiman were medical professionals.

“In the camp where I was, there were about 100 prisoners. I think at least a quarter of them were involved in healthcare. Some of them were doctors, nurses and technicians.”

Dr Hamouda was put to work by the guards at the base as their helper or ‘shawish’, and remembers being told to fetch Dr Al-Bursh at the gate. When he collected him, his fellow doctor said he had been badly beaten and felt pain all over his body.

“He thought he may have broken ribs,” Dr Hamouda said. “He was unable to even go to the toilet alone.”

The IDF told Sky News that after Dr Al-Bursh was processed, he left Sde Teiman on 20 December and became the “responsibility” of the Israeli Prison Service.

In April, the surgeon was taken to an incarceration facility near Jerusalem called Ofer Prison.

He died shortly after his arrival. News of the surgeon’s death was announced in a statement from two Palestinian prisoner support associations at the beginning of May. The Israelis offered no explanation or cause of death.

Sky News has spoken to people who claim to have witnessed the moments before Dr Al-Bursh’s death.

A prisoner, who says he previously knew Dr Al-Bursh in Gaza, provided details in a deposition to lawyers from the Israeli human rights organisation HaMoked.

“In mid-April 2024, Dr Adnan Al-Bursh arrived at Section 23 in Ofer Prison. The prison guards brought Dr Adnan Al-Bursh into the section in a deplorable state. He had clearly been assaulted with injuries around his body. He was naked in the lower part of his body.

“The prison guards threw him in the middle of the yard and left him there. Dr Adnan Al-Bursh was unable to stand up. One of the prisoners helped him and accompanied him to one of the rooms. A few minutes later, prisoners were heard screaming from the room they went into, declaring Dr Adnan Al-Bursh (was dead).”

While some people might suggest that Dr Adnan Al-Bursh was a terrorist, Daqqa said: “If you want to formally answer this question, he was not charged until now. And many of these detainees are not charged from Gaza.”

In a statement to Sky News, a spokesman for the Israel Prison Service said: “IPS is a law enforcement organisation that operates according to the provisions of the law and under the supervision of the state comptroller and many other official critiques.

“All prisoners are detained according to the law. All basic rights required are fully applied by professionally trained prison guards.

“We are not aware of the claims you described and as far as we know, no such events have occurred under IPS responsibility. Nonetheless, prisoners and detainees have the right to file a complaint that will be fully examined and addressed by official authorities.”

Sky News was told by colleagues and Dr Al-Bursh’s wife Yasmin that he was in good physical condition before his arrest.

“He was the light of my life and I lost him,” Yasmin said.

Dr Al-Bursh was prepared to risk his life to save others. This story is one of a countless number, now buried under the immovable weight of Gaza’s recent past.

But Dr Al-Bursh lived and lost his life in a manner that demands acknowledgement, his friends and family members say.

World

Ukrainian frontline commander warns: ‘The world is scared of Russia and losing is not only our problem’

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1 hour ago

November 14, 2024

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Ukrainian frontline commander warns: 'The world is scared of Russia and losing is not only our problem'

In the courtyard of a farmhouse now home to soldiers of the Ukrainian army’s 47th mechanised brigade, I’m introduced to a weary-looking unit by their commander Captain Oleksandr “Sasha” Shyrshyn.

We are about 10km from the border with Russia, and beyond it lies the Kursk region Ukraine invaded in the summer – and where this battalion is now fighting.

The 47th is a crack fighting assault unit.

They’ve been brought to this area from the fierce battles in the country’s eastern Donbas region to bolster Ukrainian forces already here.

War latest: Russia ready to carry out ‘massive attack’

Captain Shyrshyn explains that among the many shortages the military has to deal with, the lack of infantry is becoming a critical problem.

Sasha is just 30 years old, but he is worldly-wise. He used to run an organisation helping children in the country’s east before donning his uniform and going to war.

He is famous in Ukraine and is regarded as one of the country’s top field commanders, who isn’t afraid to express his views on the war and how it’s being waged.

His nom de guerre is ‘Genius’, a nickname given to him by his men.

‘Don’t worry, it’s not a minefield’

Sasha invited me to see one of the American Bradley fighting vehicles his unit uses.

We walk down a muddy lane before he says it’s best to go cross-country.

“We can go that way, don’t worry it’s not a minefield,” he jokes.

He leads us across a muddy field and into a forest where the vehicle is hidden from Russian surveillance drones that try to hunt both American vehicles and commanders.

Sasha shows me a picture of the house they had been staying in only days before – it was now completely destroyed after a missile strike.

Fortunately, neither he, nor any of his men, were there at the time.

“They target commanders,” he says with a smirk.

‘The world is scared of Russia’

It takes me a moment or two to realise we are only a few steps away from the Bradley, dug in and well hidden beneath the trees.

Sasha tells me the Bradley is the finest vehicle he has ever used.

A vehicle so good, he says, it’s keeping the Ukrainian army going in the face of Russia’s overwhelming numbers of soldiers.

He explains: “Almost all our work on the battlefield is cooperation infantry with the Bradley. So we use it for evacuations, for moving people from one place to another, as well as for fire-covering.

“This vehicle is very safe and has very good characteristics.”

Billions of dollars in military aid has been given to Ukraine by the United States, and this vehicle is one of the most valuable assets the US has provided.

Ukraine is running low on men to fight, and the weaponry it has is not enough, especially if it can’t fire long-range missiles into Russia itself – which it is currently not allowed to do.

If President-elect Donald Trump cuts the supply of military aid, the Ukrainians will lose – it’s that simple.

Sasha says: “We have a lack of weapons, we have a lack of artillery, we have a lack of infantry, and as the world doesn’t care about justice, and they don’t want to finish the war by our win, they are afraid of Russia.

“I’m sorry but they’re scared, they’re scared, and it’s not the right way.”

Like pretty much everyone in Ukraine, Sasha is waiting to see what the US election result will mean for his country.

He is sceptical about a deal with Russia.

“Our enemy only understands the language of power. And you cannot finish the war in 24 hours, or during the year without hard decisions, without a fight, so it’s impossible. It’s just talking without results,” he tells me.

‘Losing will be not only our problem’

These men expect the fierce battles inside Kursk to intensify in the coming days.

Indeed, alongside the main supply route into Kursk, workers are already building new defensive positions – unfurling miles of razor wire and digging bunkers for the Ukrainian army if it finds itself in retreat.

Sasha and his men are realistic about support fatigue from the outside world but will keep fighting to the last if they have to.

“I understand this is only our problem, it’s only our issue, and we have to fight this battle, like we have to defend ourselves, it’s our responsibility,” Sasha said.

But he points out everyone should realise just how critical this moment in time is.

“If we look at it widely, we have to understand that us losing will be not only our problem, but it will be for all the world.”

Stuart Ramsay reports from northeastern Ukraine with camera operator Toby Nash, and producers Dominique Van Heerden, Azad Safarov, and Nick Davenport.