9 Comments
Jan 21Liked by Justin Stapley

Great point on state level oaths. James Heilpern and I have cites that support that point here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4681108

We wrote this before I saw your piece

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Well researched and well argued, but not entirely persuasive to me (though I have no legal training). If failure to stop the alleged insurrection is “aiding” it, then surely the Speaker’s failure to direct the Capitol police should make her equally culpable. I am also wary of any definition of insurrection that can be easily lobbed at any politician whose followers resort to violence. The BLM and Antifa riots clearly fit your definition of insurrection and were clearly aided by sitting members of Congress who organized their bail. Will all future elections be decided by preventing opposition candidates from being electable?

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Not going to lie, I was a bit disappointed to see you never mentioned section 5 of the 14th Amendment or the definitions of insurrection/rebellion passed by Congress: the 1870 statute or the 1948 criminal insurrection law which repealed the 1870 statue and codified what is insurrection/rebellion under law.

This was a key component of the dissenting judges in the case heading towards the Supreme Court. Between both the section stating how Congress is to enforce the 14th Amendment, and Congress passing a law those definitions at minimum should be considered. We should especially see what changes/clarifications were made between the 1870 statute & 1948 law, and how/if it applies to the current claims.

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