As you know, Donald Trump announced today that he was a target of a grand jury probe over something related to the events of January 6, 2021 and we covered that, here. It is not clear if they are going to claim that he is somehow responsible for the riot, or if they are going to try to claim that something related to his challenge to the election is somehow a crime.
To be blunt, we think there is no way to lawfully charge him with incitement of a riot under the First Amendment. And unless some very surprising facts come to light (such as that Trump actually was secretly in command of a cadre of rioters and he specifically commanded them to riot), we can’t see any argument for legal responsibility for the riot at all. And we are very skeptical of any claims that his advocacy of his position in the 2020 election controversy is a crime. For instance, the Constitution allows states to name any slate of electors they want, consistent with those states’ laws, so advocating openly for a state to replace a popularly elected slate of electors with one chosen by a friendly legislature cannot be a crime under the Constitution. We obviously can’t judge the indictment until we see it (if there even is one), but to say we are skeptical of one is an understatement.
We also suspect they are also trying that crazy Fourteenth Amendment theory to actually prevent Trump from even qualifying to run. In case you haven’t heard of it, here’s how it goes. Section 3 of the Fourteenth Amendment says the following (in relevant part):
No person shall … hold any office … 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, or given aid or comfort to the enemies thereof[.]
Congress can remove that penalty with a two-thirds vote but don’t hold your breath hoping they will do that for Trump.
So, the argument is that January 6 was more than just a riot—it was an insurrection! And somehow Trump was responsible for it, therefore, he can’t be president again under Section 3 of the Fourteenth Amendment. As we said, unless there are some truly surprising facts we are unaware of we don’t see any valid argument for Trump being legally responsible for any riot on January 6.
But, of course, this is primary season and this is going to have an effect on it. It can’t not an effect. Obviously, many see this as a method of trying to stop Trump. Others have accused these democratic prosecutors of engaging in reverse psychology. Here’s but one example:
These indictments only serve to solidify Trump's support in the GOP Primaries, which the Democrats know perfectly well. They are counting on it.
— FilmLadd (@FilmLadd) July 18, 2023
So, the theory goes like this: They indict Trump over an over again as a method of enraging the Republican Party so much they make Trump the choice. And the irony is both theories may be right: It might be positively helping Trump in the primaries while in the general election these multiple indictments will be seen by independents as proof that Trump is not suited to be president.
All of which is terrible and even unconstitutional, but there is no easy solution to it—especially not one that actually avoids the effect on the election itself.
And naturally, one has to wonder about how the candidates are reacting and Ron DeSantis’ reaction is particularly controversial.
First, let’s look the full, unedited comment by DeSantis about this likely third Trump indictment:
Here’s @RonDeSantis’ full answer: pic.twitter.com/GvseOSRU74
— Meg Kinnard (@MegKinnardAP) July 18, 2023
And now let’s talk about the controversy:
A disqualifying take from an unserious candidate in the last throes of his failed candidacy. pic.twitter.com/l9Qg5Mdsep
— Steven Cheung (@TheStevenCheung) July 18, 2023
Then Christina Pushaw chimed in:
Trump Spokesman doesn't think they can beat DeSantis without lying.
— Christina Pushaw 🐊 🇺🇸 (@ChristinaPushaw) July 18, 2023
The truth / full clip: https://t.co/MHyRm04xSl https://t.co/01RCXyKP5R
And Cheung shot back:
DeSantis Spokeswoman doesn’t think they can beat President Trump without lying. https://t.co/piqAVIGHoO
— Steven Cheung (@TheStevenCheung) July 18, 2023
But outside of political figures, regular people are having the debate, too.
This will do that as well. Not a smart move for him at all. pic.twitter.com/jXRXhFl3jK
— Katie Scarlett (@Katiescarlet2) July 18, 2023
We read the phrase ‘do that’ in context to mean ‘solidify support for Trump.’ She is saying that DeSantis is driving her toward Trump. Another person had this to say:
I know this all scripted but this is the exact wrong answer. Trying to have it both ways is dumb.
— AR Spartan (@realmikenemesi) July 18, 2023
Without endorsing 'Spartan's' comment, we can see the argument. Some might feel that now is the time to give nothing but unequivocal support for Trump. By comparison, DeSantis is saying (paraphrase) ‘Trump screwed up on Jan 6 in ways that are relevant to voters by not acting more forcefully to calm down the riot, but he shouldn’t be charged with a crime.’ It’s a logical and consistent position, but it is still hitting Trump, politically, over January 6.
It comes down to this: What duty do you think DeSantis owes Trump at a time like this? Some people think that because Trump once endorsed DeSantis that DeSantis shouldn’t even run this cycle under some concept of loyalty. Frankly, that kind of thinking is how the Republicans nominated Bob Dole and John McCain. We liked Bob Dole (anyone that blisteringly sarcastic warms our cold hearts) and held our noses when we voted for McCain in the general election, but neither of those people were particularly good candidates. But it was ‘their turn,’ according to the establishment, and so they ended up being the nominees and we ended up losing. This author refuses to accept that logic.
The tougher question is what a primary opponent owes to another opponent in the same party when they are being attacked by the left. Some might recall that Reagan once said there was an eleventh commandment: ‘Thou shalt not speak ill of any fellow Republican.’ But Trump hasn’t followed that rule for months, constantly attacking the way DeSantis ran Florida—often by adopting arguments made by the left—and pretending every time Florida had a setback in its fight against Disney that this meant that DeSantis finally and completely lost. We don’t think it is very fair to ask DeSantis to hold fire against Trump when Trump is spraying verbal bullets at him.
And as a practical matter, how do you have a primary without Republicans speaking ill of each other? ‘My opponent is perfect but you should vote for me’ is not a very compelling argument. You at least have to explain why you are a better candidate than your opponent.
But regardless of what is actually fair, DeSantis has to negotiate perception.
In any case, we don’t have to tell you to make up your own mind. Here are what some people are saying about the controversy:
Pathetic. DeSantis is now echoing Adam Kinzinger and Liz Cheney talking points because he now fully recognizes that his only chance of winning the nomination is if the Biden DOJ takes Trump out.
— Donald Trump Jr. (@DonaldJTrumpJr) July 18, 2023
It’s the Uniparty vs. Trump & MAGA, folks.
I know what side I’m on. Trump 2024! https://t.co/tSgvhzjI3A
Contrary to what Team Trump and Team DeSantis think, what’s happening to Trump has nothing to do with 2024. An angry System has dedicated the last 6 years to destroying a system-disruptor and nothing will stop them now. There’s too much momentum. Been trying to tell people. https://t.co/x8bxC0PLm2
— Jesse Kelly (@JesseKellyDC) July 18, 2023
Yes, DeSantis said Trump should have done more to prevent J6. He also said Trump shouldn’t be prosecuted because nothing criminal was done. Anyone telling you otherwise is lying.
— Bonchie (@bonchieredstate) July 18, 2023
You know who else said Trump was partially responsible for J6? Tucker Carlson, about a week ago.
Ron DeSantis Blames President Trump for J6 Insurrection, Pledges to Stop Prosecuting Corrupt Democrats and Return to Political Civility https://t.co/UzRHsrKDcI
— TheLastRefuge (@TheLastRefuge2) July 18, 2023
Like, literally none of that is true. He said Trump could have done more to stop the riot once it started. ‘Failure to stop a riot’ is not a criminal offense and said nothing about prosecuting corrupt democrats.’
This was DeSantis’s fatal flaw. He wanted to kinda be anti-Deep State while criticizing Trump. He needed to consistently look like he was on Trump’s side while still making a case for himself. I have no idea if that needle could be thread but it was the situation
— Dr. Conservative Thought Leader™️ (@BigJebBos) July 18, 2023
But how do you do that? How do you support Trump 100% while saying you should be the nominee?
We willl NOT vote for deSantis. If Trump is removed from the ballot, Biden will win.
— Sole deo gloria 🇺🇸🪻🪴🪺🐞🙏 (@StephanieRuff3) July 18, 2023
Does that seem like a sound strategy? Two of the oldest Supreme Court justices are conservatives. The third, Chief Justice Roberts, is a conservative when he feels brave. Do we want to risk having Biden replace them? We can’t let the democrats have power for six years straight.
Finally, some perspective:
🚨I Beg You To Hear Me Out🚨
— #ThePersistence (@ScottPresler) July 18, 2023
If Trump & DeSantis supporters want to win next year, then focus on now:
✔️Give Governor Glenn Youngkin 2+ Senate seats & hold the House of Delegates
✔️Elect Jeff Landry as governor of Louisiana this October
✔️Elect Daniel Cameron as governor of…
Remember: At the end of the day we are on the same team and we want largely the same things.
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