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

Published

5 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.”

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Stenhouse may face ban for swing at Kyle Busch

Published

2 hours ago

May 21, 2024

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Stenhouse may face ban for swing at Kyle Busch

Associated Press

May 20, 2024, 11:54 AM ET

NORTH WILKESBORO, N.C. — Ricky Stenhouse Jr. threw a right hook at Kyle Busch, and suddenly, an otherwise boring All-Star Race at North Wilkesboro Speedway had NASCAR fans buzzing heading into next weekend’s marquee Coca-Cola 600 at Charlotte.

Busch had wrecked Stenhouse on the second lap of the $1 million race Sunday night in a move that looked like retaliation for how Stenhouse had raced him earlier. Stenhouse drove his damaged Chevrolet to Busch’s pit stall and parked it, and with no way to get out of the track while the race was going on, stewed in street clothes for hours until Busch arrived at his hauler.

That’s when Stenhouse, after a brief conversation, threw a right hook at the driver of the No. 8 Chevrolet, setting off a brief melee that involved members of each driver’s crew — and Stenhouse’s father. The brawl was eventually broken up, but not before more words were exchanged from both sides and Stenhouse vowed, “I’m going to wreck you at Charlotte.”

“Bring it,” Busch replied. “I suck as bad as you,” implying that both drivers are not having great seasons.

The antics could result in a suspension for Stenhouse, the 2023 Daytona 500 champion, other crew members and possibly his father. Busch also could face a penalty if NASCAR determines that he deliberately caused the wreck.

Stenhouse’s fury was evident the moment he parked in Busch’s pit stall, then climbed the pit stand ladder and had words with members of his crew. As Stenhouse climbed down and walked away, his car had to be towed from pit road.

“I parked it there because I figured Kyle would do something similar,” Stenhouse said.

Later, during an interview with Fox Sports, Stenhouse indicated he would confront Busch after the race.

And then he did.

Stenhouse, dressed in yellow shorts and a gray T-shirt, waited for Busch in the infield and confronted him face-to-face before unleashing a punch. Security jumped in and pulled Stenhouse away, falling backward over a tire, while Busch likewise wound up on the ground. Stenhouse’s father, Ricky Sr., got into the fracas and appeared to take at least one of Busch’s punches.

Stenhouse could be heard yelling “Dad!” numerous times, but he couldn’t get to his father.

“First lap of the race, we don’t even have water temp in the car yet and we’re wrecking each other,” Busch said. “I am tired of getting run over by everybody. But that’s what everybody does: everybody runs over everybody to pass everybody.”

Stenhouse clapped back at Busch: “Go back and watch the replay. I didn’t touch you. Not once.”

Stenhouse took another shot at Busch after the fight, saying he had bad-mouthed him ever since Stenhouse once wrecked him at Daytona, and then went on to say that Busch is just frustrated because “he doesn’t run as well as he used to.”

Busch, a two-time Cup Series champion, is 13th in points and has yet to win a race this season.

The All-Star Race itself lacked any drama once Kyle Larson arrived by helicopter from Indianapolis Motor Speedway, where the 2021 Cup Series champion had qualified fifth for his Indy 500 debut earlier in the day.

Pole sitter Joey Logano led all but one of the 200 laps to take home $1 million. It was yet another example of NASCAR’s struggles to find the right short track setup despite allowing the use of multiple variations of tires at North Wilkesboro.

“You couldn’t pass,” runner-up Denny Hamlin said. “I would lose a little bit of air there, and I would try to give my car a break and then run at [Logano] again. Hats off to the track, NASCAR and Goodyear for giving it a try. Hopefully, we learned something here for future short tracks.”

Then he smirked and added, “But at least we had an exciting fight in the end. That’s something to talk about.”

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Logano dominates All-Star Race, Larson is 4th

Published

2 hours ago

May 21, 2024

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Logano dominates All-Star Race, Larson is 4th

Associated Press

May 19, 2024, 10:24 PM ET

NORTH WILKESBORO, N.C. — A little prep work paid off for Joey Logano.

Logano dominated the short track at North Wilkesboro Speedway leading all but one of 200 laps to win his second All-Star Race on Sunday night and earn $1 million.

Logano started on the pole after posting the fastest time in qualifying on Saturday and was never really challenged, setting a record by leading more laps than any driver has in the race’s 40-year history.

“We were so fast,” Logano said. “We came here before for testing and ran over 800 laps and really figured out what it was going to take to win the race.”

Logano compared it to a scene in the movie “Miracle” about the 1980 United States Olympic hockey team with crew chief Paul Wolfe making him run lap after lap until he was completely exhausted.

“It’s like when the coach is making the team run the suicide drills and he keeps saying, ‘Again! Again!,'” Logano said. “That was Paul Wolfe to me with the testing. I ran 800 laps. I was sore and I had enough.”

Logano has not won a points race this season, so he said this was a big boost for his team.

“The first thing that goes through your mind is gosh, I wish this counted for points,” Logano said. “But let’s be honest, a million is a lot of money and counts for something.”

He also won the All-Star Race in 2016.

Denny Hamlin finished second and Chris Buescher third in a race that lacked drama for the second straight year at the renovated track.

Kyle Larson, who arrived about an hour before the race after spending the afternoon qualifying fifth for the Indianapolis 500 and flying to North Wilkesboro, finished fourth and came up short in the quest to tie Jimmie Johnson for the most All-Star Race wins with four after starting at the back of the field.

The newly paved track and different versions of soft tires were supposed to create more passing. They didn’t.

Hamlin admitted afterward that he just couldn’t get the lead.

“I would run to him, and then you couldn’t pass,” Hamlin said. “I would lose a little bit of air there, and I would try to give my car a break and then run to him again — just have to be so much faster to get around.”

Said Logano: “If it wasn’t for the clean air [and being out front] I would not have won.”

Team Penske president Michael Nelson called it a great day for the organization after they swept the top three starting spots at Indianapolis 500 earlier in the day.

“We have been close this year [in NASCAR] and to finally make it happen on a day like today, if you had to wait this was the day to get that done,” Nelson said. “A great day for Mr. Penske and the whole organization.”

There only real fireworks came on the second lap when Kyle Busch sent Ricky Stenhouse Jr. into the wall after Stenhouse tried to pass him on the first lap. An upset Stenhouse pulled his wrecked car down pit lane and parked in Busch’s pit stall, got out and climbed a ladder to yell at Busch’s crew.

Afterward, Stenhouse confronted Busch in the pits, then threw a punch at Busch igniting a scuffle that involved members of both crews. Stenhouse said that he was tired of Busch “running his mouth talking about me” after he had wrecked him at Daytona in the past.

“I know he is frustrated because he doesn’t run as well as he used to,” Stenhouse said after the race.

Larson was the big story ahead of the race.

He arrived at North Wilkesboro Speedway about an hour before the race following a busy afternoon

His plane landed at Wilkes County Airport and was then transported via helicopter to the racetrack and then taken by golf cart to his hauler to begin preparations for the 200-lap exhibition race.

Fans cheered his arrival into the track and he waved to them along the way.

NASCAR and its broadcast partner Fox helped accommodate the sport’s star attraction and points leader by moving the start of the race back 16 minutes to 8:30 p.m. to ensure he would arrive in time after shocking some in the racing world by qualifying for the Fast 6 at Indianapolis.

Larson will have to do it again next weekend when he attempts to run the double and finish the Indianapolis 500 and the Coca-Cola 600 in Charlotte, North Carolina.

Seventeen drivers qualified for the race based on their past accomplishments. All-Star Open winner Ty Gibbs and second place finisher Bubba Wallace advanced into the race on Sunday, along with fan vote winner Noah Gragson.

Hendrick Motorsports vice president of competition Chad Knaus marveled at what Larson was able to do in his first qualifying runs in Indianapolis in an open-wheel racecar against the best drivers in the world.

“We were watching him run and we were like, my gosh, I can’t believe this,” Knaus said. “I was like my goodness how did that happen? Very limited track time. Did a couple of tests. Was able to go up there and he holds a pretty good wheel as anybody I have seen. He is a phenomenal talent. He gets it. He is so emotionally stable. You can put him in just about any environment and he is going to excel.”

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Larson quick on second qualifying try at Indy

Published

2 hours ago

May 21, 2024

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Larson quick on second qualifying try at Indy

Associated Press

May 18, 2024, 01:48 PM ET

INDIANAPOLIS — Kyle Larson kept calm when something seemed amiss in his first qualifying attempt for the Indianapolis 500.

So did everyone else at Arrow McLaren.

They knew they had plenty of speed in his car, so they pushed the No. 17 back to Gasoline Alley, gave a thorough exam to the Chevrolet engine that had Larson on the verge of making the field, and headed right back to the track to give it another try.

This time, Larson was able to stand on the gas all the way through his four-lap run, posting a 232.563 mph average to put the NASCAR star in position to run for the pole. He was sixth-quickest on the first day of qualifying at Indianapolis Motor Speedway, leaving him one of 12 that will shoot for the first spot on the starting grid Sunday.

“I’ll definitely take that,” said Larson, who also will try to become the first driver since Tony Stewart in 2001 to complete the Indy 500 and Coca-Cola 600 in Charlotte on the same day May 26. “Proud of the team for not all of us freaking out.”

There was reason for concern, though, during what started off as a tough day for Arrow McLaren.

Larson was the sixth of 34 cars onto the track, a favorable draw given that quicker speeds tend to happen earlier in the day, when the weather is cooler. And he was off to a good start when, late in the attempt, Larson said his engine seemed to miss; it turned out to be a sort of non-fatal hiccup that cost several other drivers promising runs throughout the day.

Larson’s team wanted him to finish and post a time, but he played it safe and came down pit road.

“We were happy with the speed we had in the 17 before the event happened there,” said Arrow McLaren team principal Gavin Ward, who is working with Hendrick Motorsports to qualify Larson for “The Greatest Spectacle in Racing.”

Larson could not eclipse 233 mph on any of his four laps when he returned to the track, leaving him off the pace set by Team Penske, which locked down the top three spots with defending race winner Josef Newgarden, Scott McLaughlin and Will Power.

Still, the run was good enough for Larson to join Arrow McLaren teammate Alexander Rossi in the top six.

“Honestly, I feel like the nerves were a lot less going the second time, even not completing that first run,” Larson said. “I’ve never gotten to qualify like that where you get multiple shots at it.”

Hendrick Motorsports vice chairman Jeff Gordon, who grew up in nearby Pittsboro and dreamed of running the Indy 500, took a picture of Larson with his cellphone as he finished his run. Gordon then high-fived Jeff Andrews, president and general manager of Hendrick Motorsports, who also showed up to support their driver.

“Now we can breathe,” Gordon said. “Now we can ramp up for tomorrow.”

It could be a big Sunday.

After going for the pole in Indianapolis, Larson is scheduled to fly to North Wilkesboro for the NASCAR All-Star Race in what amounts to a dry run for Memorial Day weekend. But with rain in the forecast in North Carolina, Larson hoped that race would get pushed to Monday night, giving him a bigger travel cushion.

“That would be nice,” Larson said, brightening at the possibility. “I hope it rains tomorrow!”

Larson wasn’t the only Arrow McLaren driver to have problems on the first day of Indy 500 qualifying.

Earlier, Callum Ilott posted a four-lap average of 231.995 mph that put him in the top 10, but the time was thrown out when a technical inspection discovered a problem with the left rear wheel offset on his career. Ilott was slightly slower when he made a second attempt, then he went 232.230 later in the day, putting himself solidly in the field.

Pato O’Ward pulled out of the lineup for his initial run when the team decided to make some changes to his setup, then he had a similar problem to Larson’s first try when he got on the track. O’Ward eventually made the fast 12 at 232.434 mph.

“It’s settling just to know that we’ll be fine to get in the show,” O’Ward said. “This place, you just can’t take it for granted. You’re good one day, you come back the next and everything seems upside down. We just have to keep pushing.”