The J6 Committee Begs the Question

Was what happened at the Capitol on January 6, 2021, really an insurrection? We ask because we keep hearing the word “insurrection” as the January 6 Committee gets set for its prime time show this evening. Yet the committee seems to be using the word en passant, as if there has already been a proceeding in which an insurrection was determined to have occurred — or been attempted. And there hasn’t been such a determination.That is the thing to bear in mind as the committee opens its broadcast tonight. For it’s increasingly clear that the name of the game for the Democrats is to disqualify President Trump from standing for a second term. It wants to do that via the disqualification clause of the 14th Amendment, which says that no person shall hold any office under the United States who shall have “engaged in insurrection or rebellion” against America.Not only has no proceeding yet established that an insurrection occurred or been attempted. The only formal proceeding that ruled on the question — the second impeachment of Mr. Trump — concluded that Mr. Trump was “not guilty” of incitement to insurrection. The word we like to use is that it “discovered” that he was “not guilty.” The vote was way short of what the Senate would have been needed to convict.One would think that the acquittal of Mr. Trump on this charge — which was, after all, handed up by a vote in the lower chamber, albeit largely on party lines — would have produced some humility in the House. Yet it is now breezing past the whole question of whether an insurrection occurred and just trying to sashay past the point. This starts with the very language of the enabling statute by which the House created the January 6 panel. “Whereas January 6, 2021, was one of the darkest days of our democracy, during which insurrectionists attempted to impede Congress’s Constitutional mandate to validate the presidential election and launched an assault on the United States Capitol Complex.” It’s a classic case of what it means to beg the question, which means to “assume the truth of an argument or proposition to be proved, without arguing it.”The Constitution is not so mincing, but leaves a lot for the rest of us. It grants Congress the power to call forth a militia “to suppress Insurrection,” but it reckons it’s unnecessary to define the term. The Insurrection Act of 1807 allows the President to summon the Army and National Guard to put down insurrections. This law was used, from time to time, to desegregate the South in the teeth of Jim Crow.In 1849, the Supreme Court, in Luther v. Borden, considered a clash in the Dorr War between warring governments in Rhode Island, one a revanchist relic of the crown and another along the new American model. The court held that “the power of determining that a state government has been lawfully established” is a political, not judicial, question. It is to the President to issue “the call to suppress an insurrection against a State.” We hearken to these timbrels as cautionary notes. An insurrection is not something to be declared by one partisan committee, or to be tossed out by the very lawyers who one day could be tasked with showing it beyond a reasonable doubt in court. The president intones it, but neglects the procedures that would give it the force of law. Just to mark the point: The public is being bidden to assume a man’s guilt, sans trial. If this is a political question, Mr. Trump might yet collapse in the face of a trial that is not a trial, evidence that would not pass for evidence, and an insurrection that has not been proven. Forgive us if we do not celebrate. We’re for a proceeding other than an increasingly eccentric effort to pre-empt a former president from seeking a second term. We carry no brief for Mr. Trump, but we do for due process.

The J6 Committee Begs the Question

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