The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The January 6 Attack was an Insurrection
And it isn't a close case.
Today is the third anniversary of the January 6, 2021 attack on the Capitol, intended to keep Donald Trump in power after he lost the 2020 election. One of the points at issue in the Supreme Court case considering whether Trump should be disqualified under Section 3 of the Fourteenth Amendment is whether the events of that day qualify as an "insurrection." It should be an easy call. The January 6 attack was an insurrection under any plausible definition of that term.
As legal scholar Mark Graber shows, contemporary definitions of "insurrection" prevalent at the time the Fourteenth Amendment was enacted were quite broad: possibly broad enough to encompass any violent resistance to the enforcement of a federal statute, when that resistance was motivated by a "public purpose." That surely includes the January 6 attack!
I'm not convinced courts should actually adopt such a broad definition. It could set a dangerous precedent. As Graber notes, on that theory people who violently resisted enforcement of the Fugitive Slave Act qualify as insurrectionists, too. But January 6 was an insurrection even under a narrow definition that covers only violent attempts to illegally seize control of the powers of government. After all, the attackers were using force to try to keep the loser of the 2020 election in power, blocking its transfer to the rightful winner. If that isn't a violent attempt to seize government power, it's hard to know what is.
It's true many of those who participated thought they were acting to support the rightful winner of the election, and thus believed they weren't doing anything illegal. But much the same could be said of the ex-Confederates who were the original target of Section 3. Most of them believed their states had a constitutional right to secede, and they had much better grounds for that belief than Trumpists ever had for the utterly indefensible claim that the election was stolen from him (one uniformly rejected in numerous court decisions, including by judges appointed by Trump himself).
It is sometimes claimed that the mob attacking the Capitol was unarmed or not violent enough to qualify as an insurrection. That would be news to the five people who were killed, and the over 140 police officers injured. There could easily have been many more fatalities had the attackers been more successful in carrying out their plans to "hang Mike Pence" and kill members of Congress (Pence and the members managed to escape). And it just isn't true that the mob was unarmed. After extensive consideration of evidence, Colorado courts found otherwise:
[C]ontrary to President Trump's assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—that the mob was armed with a wide array of weapons…. The court also found that many in the mob stole objects from the Capitol's premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers' batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol…. The fact that actual and threatened force was used that day cannot reasonably be denied.
Co-blogger and prominent conservative law professor Steve Calabresi is nonetheless unconvinced January 6 was an insurrection. He relies on a definition of "insurrection" from the 1828 edition of Webster's Dictionary:'
A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.
The events of January 6 fit this definition to a T! The attack on the Capitol was obviously "A rising against civil or political authority" and even more clearly "the open and active opposition of a number of persons to the execution of a law in a city or state." The mob incited by Trump sought to prevent the "execution" of the laws requiring transfer of power to the winner of the election.
Calabresi suggests that the January 6 attack fits the definition of a "riot." Perhaps so. But "riot" and "insurrection" aren't mutually exclusive concepts. An event can be both at the same time. Indeed, that's a common occurrence in history.
Calabresi and others also argue that the attack wasn't large enough to qualify as an insurrection because, as he puts it, the attack "occurred for three-and-one-half hours in one city only in the United States, Washington D.C., and not as an overall insurgency in multiple cities across the United States." But the definition he himself cites indicates that an insurrection is "the open and active opposition of a number of persons to the execution of a law in a city or state" (emphasis added). That suggests one city is enough.
And there is no historical or modern evidence indicating that an insurrection has to last some minimum length of time. A revolt that is quickly put down can still be an insurrection. The same goes for one that is poorly planned and easily defeated.
If actions in multiple cities are required, a great many attempted coups and armed revolts would not count as "insurrections." It is common for attempts to seize power to focus on the capital city where the government is located. If the revolt is put down, it may not spread elsewhere. But that doesn't mean it was not an insurrection.
The Bolshevik seizure of power in Russia in 1917 initially involved just the capital city of St. Petersburg. If the Provisional Government had managed to swiftly crush it, thereby preventing it from spreading to other cities, would that mean it wasn't an insurrection?
Do Steve and others who advance similar reasoning believe Adolf Hitler's 1923 Beer Hall Putsch was as an insurrection? Like the January 6 attack, it lasted only about one day (evening of Nov. 8, 1923 to the evening of the following day), and was limited to a single city (Munich, the capital of the German state of Bavaria). The number of participants (several thousand; 1265 people have been charged with offenses related to the attack on January 6, and many other participants likely got away without being identified or charged) and the number of people injured was also similar to that of January 6.
There were somewhat more fatalities (21) in the Beer Hall Putsch. But 16 of them were participants in the coup (the others were four police officers and a civilian bystander). The Bavarian police and troops who put down the revolt were less restrained in their use of force than US law enforcement officers on January 6 (who only killed one of the attackers). That surely isn't a decisive difference between the two cases. More aggressive law enforcement action cannot by itself transform a mere "riot" into an insurrection.
It seems obvious that both the Beer Hall Putsch and the January 6 attack were insurrections, for the simple reason that both involved the use of force to illegally seize control of government power. It matters not how long they lasted, or that they were poorly planned and quickly put down. And it certainly doesn't matter that they both occurred in just one city.
There is an admittedly more difficult issue over the question of whether Trump "engaged" in the insurrection that occurred. I think the Colorado Supreme Court decision that the US Supreme Court will review dealt with that question persuasively. But Trump has a better argument on that point than on any other. His involvement, while substantial, was less clear and direct than, say, Hitler's in the Beer Hall Putsch or Lenin's in the Bolshevik revolt in Russia. But whatever might be said of Trump's level of involvement, there can be no serious doubt that an insurrection did occur.
UPDATE: I have made minor additions to this post.
UPDATE #2: Steve Calabresi responded to this post here. I have posted a rejoinder here.
