by Edward J. Erler
In the election of 2016, Donald Trump appealed to citizenship, sovereignty, and borders. This was a direct entreaty to the people as the ultimate source of sovereign authority, bypassing the ruling-class elites that dominate the media and the universities; his appeal also ignored political experts, pollsters, and government bureaucracy. In the postmodern world, the nation-state is under attack everywhere as the source of all evil, the cause of war, selfishness, racism, white privilege, misogyny, homophobia, transphobia, Islamophobia, and all the other irrational phobias that make up the universe of political correctness. The idea of the nation-state itself is said to be irrational and arbitrary.
All of this overwrought criticism of nationalism and the nation-state overlooks a very significant point developed in my new book, The United States in Crisis: Citizenship, Immigration, and the Nation State: the nation-state is the only form of political organization that can sustain constitutional government and the rule of law.
No empire has ever been a constitutional democracy or republic, nor will constitutional government exist in global government. If, as is widely alleged, the dialectic of History is inevitably tending toward global governance and universal citizenship, then it is also tending toward tyranny.
The universal homogeneous state will not be a constitutional government based on the consent of the governed; it will be an administrative tyranny based on the rule of scientific experts. Science, not the consent of the governed, will be the basis for rule. There will be no citizens in this universal state; there will only be clients of the administrative state. We see clearly a presage of the future of the world in today’s United States, where administration has replaced politics and the Constitution.
In that sense, Trump’s victory in 2016 was a defeat of the Washington establishment, including the leadership of both the Democrats and Republicans. His unexpected victory did not go unchallenged. The legitimacy of his election was questioned before Inauguration Day 2017 and talk of impeachment began almost immediately. The Washington establishment doesn’t take defeat lightly.
Both Republicans and Democrats had a large stake in defending their entrenched privileges. The shared interest in maintaining those privileges for the most part transcended party differences. The Russia collusion conspiracy began almost immediately and was given life by the appointment of a special counsel. After a lengthy and costly—not to say highly partisan—investigation, the conspiracy was revealed to be a hoax manufactured in a frantic defense of the old order.
What was most shocking about the allegations of Russian interference in the election of 2016, still vociferously maintained by Hillary Clinton and her co-conspirators in the Congress and the media, was the extent to which the intelligence agencies and the FBI were involved in actively abetting the conspiracy. President Trump was cleared by the investigation, however grudgingly, though denialists and dead-enders in both parties continue to maintain his guilt.
The First Impeachment of President Trump
An otherwise unremarkable phone call between President Trump and Volodymyr Zelensky, then the newly-elected President of Ukraine, on July 25, 2019, mischaracterized and sensationalized by a national security officer, Lt. Col. Alexander Vindman (himself a naturalized American citizen born in Ukraine when it was still part of the Soviet Union), was the event that finally led to the thinnest pretext for impeachment. The House voted for a bill of impeachment on December 18, 2019, charging the president with “abuse of power” and “obstruction of Congress” resulting from the phone call.
Although Zelensky himself reported that Trump made no demands or attempts to exert improper influence on him, and it is clear that Trump had asked him to cooperate in an investigation that was being conducted independently by the Justice Department which, by all accounts, was a proper request, none of this mattered to Democrats. After all, it was well known from a widely circulated video that Vice President Biden, while still in office, had bragged about asserting his influence to have a Ukrainian prosecutor fired for coming uncomfortably close to his son Hunter’s financial dealings in the country. So the dogs had to be thrown off the scent.
It is routine, not to say monotonous, to hear Democratic politicians and members of the media claim that Trump was requesting Zelensky to “dig up dirt” on a potential presidential rival. But an abundance of “dirt” had already been exposed about Hunter’s financial dealings, and a host of other unsavory political and non-political habits were eventually revealed in his laptops. Those laptops apparently were voluntarily handed over to a computer repairman who notified the FBI. There was thus no need to ask Zelensky to dig up “dirt.” What was really needed was a way for the media, with the cooperation of Big Tech, to conceal the “dirt” that had already been “dug up.”
The concealment was a great success; the voting public, by and large, remained unaware. In some quarters, when the information began to leak out—mostly after the election—it was ascribed to “Russian disinformation,” and painted as an effort to help Trump win the election. In fact, it was electoral interference on the part of the media and Big Tech, suppressing relevant information that surely would have helped Trump’s election. Even at the late date when most of the information became known—not only about Hunter’s corrupt dealings in the Ukraine, China and Russia, but his father’s knowledge and complicity in these dealings—the suppression of the truth by the media and Big Tech prevented a free and fair election and was therefore illegal election interference.
Revelations about the call originated with an anonymous “whistleblower” who possessed only hearsay evidence, and almost certainly was Vindman himself. The establishment members of the State Department and security agencies, of course, could only allege that President Trump had deviated from the ordinary “norms” of conducting foreign policy. They were anxious to defend their entrenched bureaucratic prerogatives from an innovator who had a different vision of how to represent America’s interests abroad. Trump’s “America First” foreign policy was decidedly not the view of the Washington foreign policy establishment. Perhaps impeachment would signal to the international community that the old world of multilateralism was still alive in the Washington establishment, and that “America First” was just a passing fancy, supported by the American people perhaps, but rejected by the foreign policy elites. Impeachment might serve to chastise the president and show that members of the deep state—even those appointed by the elected chief executive—were willing to defy his leadership by invoking their elite policy experience. A Senate conviction, however unlikely given the requirement of a two-thirds vote, would be a show of strength.
The ensuing Senate impeachment trial presented high comedy on the part of the Democrats. They were unable to present any evidence of an impeachable offense. There was no evidence presented of any abuse of power beyond the president’s legitimate assertion of himself as the chief foreign policy officer of the United States. The members of the deep state foreign policy and security establishment simply resisted Trump’s attempt to occupy his proper constitutional role. To the deep state this was indeed an “abuse” of presidential power. The House managers’ presentation of their case against the president was a comedy worthy of Aristophanes: the representatives of the Washington establishment claimed they were acting to protect democracy against a president who was challenging the hegemony of the Washington oligarchy. The Senate trial, perhaps more precisely, was a farce masquerading as comedy.
“Territorial Integrity” for Ukraine, Open Borders for the United States
Anxious to eliminate any vestiges of Trump’s foreign policy, Joe Biden moved quickly to stop putting America first. Biden has meekly restored the multilateralism demanded by the foreign policy elites who opposed Trump. The multilateral alliance has warned Putin that any advances on the territorial integrity of Ukraine will trigger severe consequences: economic sanctions, international condemnations, but probably not the promised membership in NATO that Ukraine desires and that Russia opposes. The Biden Administration blusters that “all options are on the table.” But the real conundrum is the fact that the Biden Administration is willing to defend the territorial integrity of Ukraine while deliberately destroying the integrity of the border of the United States for political purposes. The Trump Administration had effectively secured the southern border and had made significant progress in solving the illegal immigration problem. Open borders, however, became the priority of the Biden Administration. Bidenissued open invitations to foreigners and soon his intentions were revealed to be perhaps the most cynical and politically destructive ever adopted in American history. The new White House policy intends nothing less than to encourage and subsidize massive illegal immigration and use government resources to settle them in politically strategic districts that would benefit the Democratic Party in future elections.
Many reports have surfaced about late-night flights moving newly arrived illegal immigrants to swing districts for resettlement. They arrive without advance notice to local or state authorities, who are expected to accommodate them. These illegal immigrants will no doubt be expected to express their gratitude to the Democratic Party for the extraordinary efforts it made, however illegally, to accommodate them as future voters. Efforts are already underway to make it possible for aliens—legal and illegal—to vote. And, it must be noted, there are no constitutional barriers for states to make aliens eligible to vote, and voters in the states eligible to vote for members of the most numerous branch of the legislature of the state are eligible to vote for members of Congress. All of the pieces of the puzzle are falling into place. It is only a question of whether the Biden Administration will last long enough to assemble all the pieces. It is no mystery what the finished puzzle will look like.
Meanwhile, Biden and his minions in the CDC seem unconcerned by the fact that the hordes permitted to stream illegally through the open border are unvaccinated and untested for COVID. The COVID mandates seem to be ignored or enforced depending on what is politically advantageous to the regime. Thus, COVID is not so much a health issue as it is a political issue. When it involves illegal immigrants intended to become future voters in the Democratic Party, enforcement is lax or nonexistent; but for American citizens enforcement is draconian, heavy-handed, and arbitrary—i.e., typical of the administrative state.
Perhaps the most important factor in the 2020 election was how the Wuhan virus provided an unexpected political weapon for the Democratic Party and the entrenched oligarchy, not only to consolidate its power but to terrorize the public into accepting oppressive government regulations that may extend into the indefinite future. Some of the regulations have been exercises in raw power, having little or no rational basis and little effect on curbing the pandemic.
Most telling, however, is the fact that the pandemic has resulted in the greatest transfer of wealth in history from the lower and middle classes to the wealthy and corporate classes. It is difficult to say whether the pandemic was an accident or not, but the massive transfer of wealth was certainly no accident. It was the beginning of the end of President Trump’s attempt to survive the all-out assault mounted against him by the combined forces of the oligarchy.
Without the pandemic, Trump, in all probability, would have won reelection, and would have been better positioned to deal directly with the minions of the deep state—the self-appointed masters of the universe and those who support them. The Biden Administration will preside over the amalgamation of government and the masters of the universe. These would-be masters already control much of the government even as the government deludes itself into believing that it controls and regulates the masters. What is at stake, however, is the globalization of elite rule. The masters don’t want to rule only America; they easily overcame Trump and his anachronistic idea of the sovereign nation-state and America first. The real object is to establish the global elite ruling class. And here China is the key. China has a growing economy, the cheapest and most compliant labor pool, and does not have America’s quaint commitment to republicanism and the consent of the governed.
How America Became an Oligarchy
What was revealed in these events was the extent to which American democracy had in fact transmogrified into oligarchy. An alliance of corporate elites and the Washington establishment had been developing since World War II. Washington has long been in the business of “picking winners and losers” in the corporate world and market success has been increasingly dependent upon government access and government largess. In recent years, the most important alliances have been between government and Big Tech. The wealthy elites in the corporate world and the world of Big Tech have formed an open alliance with the Washington establishment to complete the transformation of American democracy. This is a deadly combination—and it is easy to recognize for anyone who is willing to look.
The American regime still retains the form of a republic, but its substance has been transformed into an oligarchy, the rule of the few for the benefit of the few. Politicians of both parties, but most strikingly Republicans, have found it easy to ignore or evade promises made to constituents. It is necessary for politicians in an oligarchy masquerading as a democracy to speak the language of the people and express interest in their concerns, whether they consider those concerns real or imagined. In a representative democracy where the news cycle is short and panders to the sensational, it is easy for politicians to “talk the talk,” but delay or obfuscate the “walk,” counting on the people’s short attention span.
The Tea Party movement, for example, raised populist concerns that could not be easily ignored, but the movement was eventually quelled by extravagant promises of reform in taxation and immigration. Almost everyone seemed to realize that the promises were insincere—the old “Washington shuffle.” There were many excuses, but there was never any intention of keeping those promises when they harmed the interests of the establishment, as all the demands of the Tea Party did. The Obama Administration, however, did take the Tea Party seriously and worked assiduously behind the scenes, using well-timed audits of donors, delays for approvals of tax-exempt status for Tea Party groups, leaks by IRS employees of the names of Tea Party donors, and other dirty tricks to delay and disable the movement.
The Tea Party was shrewdly taken out of play by these tactics in Obama’s reelection in 2012. The Republicans, on the other hand, and the representatives of the oligarchic elites paid little attention to those whom Hillary Clinton called the “deplorables.” Trump, however, demonstrated that the memory of the people was not as fragile as the ruling elites thought.
Why would Trump betray his own class—the oligarchy? Self-interest is not always the dominant motivating force in some men—sometimes an instinct for justice prevails or sometimes a reputation for justice might be a primary self-interest. But it took an oligarch—an insider and a traitor to his class—to make plain that the American regime had become an unjust oligarchy.
His class reacted to his effrontery with deadly purpose. How dare he take the side of the people! How dare he invoke justice! The elites, in and out of government, mobilized against him with resources that no individual could match. In the 2016 presidential election, Trump dominated the media because he was newsworthy. He received free coverage, much of it live, where he could speak directly to the people. He also had free access to Twitter and Facebook which allowed him to bypass the mainstream media. In the 2020 campaign, the masters of the universe and the mainstream media would continue their opposition but with greater boldness and recklessness, simply printing rumors and outright fiction as fact. Their 2016 campaign turned on the Steele dossier and “Russian collusion,” both of which turned out to be hoaxes, but a steady stream of misrepresentations and fabrications became standard fare in 2020. The masters dogged Trump unmercifully, censoring him at crucial moments in a way that amounted to clear instances of election interference.
The role of Dominion Voting Systems (which appears to be easily manipulated) may be revealed in the future, but the likelihood that there will ever be another free election in America is remote if the 2020 election is not thoroughly investigated. An alarming percentage of the electorate no longer believes that the 2020 election produced a fair result. More than 70 percent of Republicans believe the election was fraudulent, if not stolen. More than 74 million Americans voted for Trump, the highest vote total for a presidential candidate ever recorded, except for Biden. Confidence in the nation’s electoral system is at a low point; electoral manipulation—mail-in voting, extended time for voting, lack of voter I.D. requirements, lax signature verification requirements for absentee ballots, vote “harvesting,” ballot curing, and other measures inviting voter fraud—are obvious to everyone. Some just pretend it is justice.
Two new bills pending before Congress, the Freedom to Vote Act, and the John Lewis Voting Rights Advancement Act, would federalize elections, and expand these opportunities for voting fraud that were prevalent in blue states in the election of 2020. The Freedom to Vote Act is nearly 600 pages of detailed federal regulations to nationalize state elections. Attempts to establish any integrity in voting, such as requiring voter I.D.—long ago endorsed as constitutionally sound by the Supreme Court—is stigmatized as “voter suppression” and an assault on democracy. Extended voting periods will be mandatory, as will mail-in ballots, liberal standards for absentee voting, and mandatory requirements for drop boxes for drive-by voting. Automatic and same-day registration would be required and election day would become a federal holiday. There will also be restrictions on congressional redistricting and campaign finance.
The John R. Lewis Voting Rights Act is designed to overturn the Supreme Court’s ruling in Shelby County, Alabama v. Holder (2013) and restore its pre-clearance coverage formulas, especially those involving redistricting. This is a desperate attempt on the part of Democrats to pass legislation that will ensure the same access to potential voter fraud schemes that worked so well in the election of 2020. The attempt to federalize elections will certainly provoke constitutional challenges; the Democratic Party is attempting to push legislation through as part of its campaign to portray the Republicans as the party of Trump, supporters of insurrection, and the enemies of democracy. It is desperation on the part of the extreme Left which seems to have gained control of the Democratic Party.
The Insurrectionist Smear
In a shrill, divisive, and ultimately unsuccessful January speech this year urging passage of the two election bills, Biden drove the wedge of racial division further than he ever has in a shameful attack on those who opposed the legislation. Opposition to the legislation, he angrily shouted, is not only racism—it is insurrection! Voting rights are the very foundation of democracy, Biden said, and any opposition to extend and protect those rights is simply an extension of the “insurrection” of January 6.
Biden even suggested that the midterm elections in November of 2022 might be “illegitimate” if the new election laws are not passed, thus casting doubts on the integrity of an electoral system in an election that the Democrats are widely predicted to lose! House Majority Leader Steny Hoyer echoed the suggestion that this fall’s election might not be valid without reform of popular state efforts to protect election integrity such as instituting voter I.D. laws, tightening absentee voter requirements, and eliminating automatic distribution of mail-in ballots, all invitations to voter fraud. The kind of “free and open” elections that the Democratic Party touts as suitable for democracy are obviously more amenable to fraud and manipulation; it is the kind of electoral system that an oligarchy masquerading as a democracy would need as part of its deception. A genuine democracy, in contrast, demands an orderly electoral system where the vote—which is the true foundation of the regime—is protected by restricting the franchise to citizens who can show proof of citizenship and residence.
Opposition to the new voting rights legislation, Biden declared, is also redolent of “Jim Crow”—it is “Jim Crow 2.0.” The country has to make a choice: “Do you want to be on the side of Dr. King or George Wallace? Do you want to be on the side of John Lewis or Bull Connor? Do you want to be on the side of Abraham Lincoln or Jefferson Davis?” Biden does not mention that Jim Crow is the legacy of the Democratic Party, and that his own mentors in the Senate, including James Eastland, Robert Byrd, and Strom Thurmond, were arch-segregationists and opponents of key civil rights legislation. John Lewis, of course, was a civil rights activist in the era that passed the Civil Rights Act of 1964, perhaps the greatest expression of a color-blind constitution understood as “the equal protection of equal rights,” until, under the tutelage of successive Democratic administrations, the color-blind Constitution was transmogrified into affirmative action and its requirements of racial quotas and proportional racial results. During these years “racial consciousness” became the meme of the Democratic Party, which has always refused to accept colorblindness as the moving principle of the rule of law.
Finally the Biden Administration touts the benefits of “equity,” the most racist notion of distributive justice ever to exist in America since the passage of the Reconstruction Amendments. As for the admonition that we should take the side of Abraham Lincoln over Jefferson Davis, of course that is correct and has never been questioned except by Democratic Confederate sympathizers. But it has no application, despite what Biden suggests. The 14th Amendment’s Section 3, which prohibits anyone who has committed “insurrection” or “rebellion” against the United States. from holding office under the Constitution, was aimed at Confederate leaders such as Jefferson Davis, who had undoubtedly engaged in insurrection. Section 3 was the basis for the charge against President Trump in his second impeachment. Thus, in Biden’s view, you either endorse the two voting rights bills or you are committing insurrection against the United States. And who are the insurrectionists? None other than the Republicans in Congress who oppose the bills, and the January 6 rioters. The Justice Department views those who voted for Trump—whether Republicans, Democrats, or Independents, but mostly those who are white—as the greatest source, not only of white supremacy but so-called “anti-government ideology.”
The administration is scouring the country to find the “insurrectionists” who invaded the Capitol on January 6, aided by a newly created unit in the Justice Department to investigate domestic terrorism. White supremacy and the political ideology Democrats associate with it has been declared the greatest source of domestic terrorism. White supremacy, according to the White House, inspired the January 6 rioters and Trump supporters. Biden’s views have been seconded by his Attorney General and the nominees who will head the new domestic terrorism agencies. The security state expands and has become dangerously political.
Trump’s Second Impeachment
President Trump is now the only president impeached twice. From the beginning, the impeachment appeared to be an obvious overreach on the part of the House managers. The bill of impeachment was passed one week before the president was to leave office, but it was not delivered to the Senate until January 25, five days after Trump was no longer in office. The House leaders never intended to have a Senate trial while he was still in office. Granted, it would have been a very short trial had the House transmitted the Bill of Impeachment to the Senate immediately upon its passage, but if the president’s actions were as outrageous and as dangerous to democracy as the House managers made them out to be, conviction should have been simple since the Senate makes its own rules of evidence and due process rights do not apply. Impeachments are in their nature political—not legal—and an up-or-down vote with only a simulacrum of a trial might have resulted in conviction and removal, if enough Republicans were convinced that something as outrageous and threatening to democracy as an “insurrection or rebellion” had taken place.
But the impeachment was never intended to remove Trump from office, only to prevent him from ever holding office again. Democrats have an abiding suspicion that Trump is still the biggest threat to the Washington establishment. There was considerable dispute among legal experts about whether a former president can be impeached. Most of the experts believed that the Constitution provides no obstacle to such an impeachment and, even though a former president cannot be removed from office, he can nevertheless be disqualified from holding future office. It is the latter—disqualification from future office—that was the obvious purpose of both the House and Senate leadership, along with some complicit Republicans. Does the plain language of the Constitution support this construction? I say that it does not.
Article I, section iii, clause 7 specifies that:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law.
It seems clear from the language of the Constitution that “removal from Office” is a prerequisite to “disqualification.” The use of a comma after “Office” with the use of “and” instead of “or” means that “removal from Office, and disqualification to hold and enjoy any Office” belong together, and cannot be considered as separate measures. The House managers’ brief makes a strange argument that Article I “provides for two separate possible judgments in any impeachment case: removal and disqualification. Nowhere does the Constitution suggest that an impeachment is permitted only when both judgments can be imposed. “Instead,” the managers argue, “it treats them as distinct penalties, mandating only that the Senate not exceed them in rendering judgment. The separate availability of disqualification—without any suggestion that it must necessarily follow removal—confirms that former officials like President Trump can be tried by the Senate.”
The language of the Constitution does not support such a reading simply because it would allow “disqualification” of a sitting president from holding further office without mandating his removal from office. It is impossible to believe that the framers of the Constitution ever intended such a result. This tortured construction of the Constitution is purely ad hominem: since Trump could not be removed, the managers insisted that he could still be disqualified. The House managers’ argument of the separability of the clauses leads to a constitutionally absurd result. But this constitutional absurdity is what drives the managers’ attempt to eliminate a formidable political rival.
The one significant mistake made by the House managers was to charge Trump with “inciting violence against the Government of the United States.” The words “inciting violence” in the charge demands constitutional analysis. The Supreme Court has set clear standards as to what constitutes incitement. Trump’s attorney at the impeachment trial in the Senate took advantage of this fact, handily demonstrating Trump’s speech on January 6, 2021 did not come remotely close to the constitutional definition of incitement. The House managers would have been better advised to stick to the more political charge of “abuse of power.” But the only evidence of any “abuse of power” was Trump’s speech, so the managers were dealt a bad hand, as it were.
The leading Supreme Court case on incitement is Brandenburg v. Ohio (1969) and its progeny. The Court in Brandenburg ruled that “inciting violence” in and of itself is protected speech under the First Amendment until it becomes “incitement to imminent lawless action.” The lawless action must follow immediately as a result of the advocacy or the incitement—the speech must be “brigaded with” the action. The speech and the action must be so close as to occur almost simultaneously, i.e., to be indistinguishable from the incitement to the lawless action itself.
The Trump speech was far from a clear case of incitement according to this definition. Trump spoke at some distance from the action; the Ellipse is about two miles from where the so-called “insurrection” took place, so an immediate impact on the listeners was not possible. Furthermore, the breach of the barricades around the Capitol Building had already been made while Trump was still speaking, so none of those who entered the Capitol heard his speech. There was therefore no immediate connection between the speech and the action. Trump’s speech simply does not fit the standards articulated by the Supreme Court in Brandenburg. No amount of bluster on the part of the managers can stretch the facts of January 6 to fit Brandenburg standards. The facts do not fit!
It is true that Trump did say that the election had been stolen by various fraudulent means and warned “if you don’t fight like Hell, you’re not going to have a country anymore.” He made similar remarks about fighting during the speech. These remarks were given prominence by the managers during the impeachment trial as evidence of Trump’s incitement of insurrection. In Trump’s defense, his legal team played numerous clips of Democrats using the same rhetorical flourishes during campaign speeches, demonstrating that “fighting like hell” has become a favorite theme in political speeches. Video clips of a seemingly endless parade of prominent Democrats using the same and similar phrases provided Trump with an effective defense.
One part of Trump’s January 6 speech that was never mentioned by the House managers was something he said near the beginning of his speech when he instructed his audience that you will be “marching to the Capitol Building to peacefully and patriotically make your voices heard.” What was the action that Trump expected from the audience he was addressing: “primary the hell out of those that don’t fight.” “You primary them.” Trump was advising his audience here to take political action. Those members of Congress who are not willing to listen to the people, who are weak and won’t represent the people against the establishment, should be challenged in primary elections: “primary them.” This is not advocacy of illegal political acts, or insurrection. It would be a gross mischaracterization to say that these were incitements to imminent lawless violence—or incitement to insurrection. Since this admonition to act “peacefully and patriotically” was given at the beginning of the speech, even those who left early to walk to the Capitol were warned not to engage in riotous behavior. So much for incitement!
Of course, it easily could be argued that Trump was deliberately insulating his speech from charges of “incitement” by asking his audience to act peacefully, but that he was acutely aware that he was courting danger by inviting an audience to assemble near the Capitol and urging them to accompany him on a march on the Capitol on the day the electoral vote was to be counted. Trump surely knew that the major theme of his remarks, that the election had been stolen, would create unrest and possibly rioting. After all, many prominent Democrats had praised the BLM and Antifa rioters. Kamala Harris, when candidate for president, said the riots served the cause of social justice and should continue even after the election. She even contributed to a fund that provided bail for those rioters who had been arrested. Then-candidate Joe Biden shared Harris’ view, implying that rioting might become a permanent part of the American political scene, supplementing, if not replacing politics. It was a matter of simple justice. Matters as important as the defense of democracy can certainly call on non-democratic means to secure democratic ends. Collateral damage in terms of lives lost and property damaged was the cost of advancing social justice. George Floyd’s life was lost by state-sanctioned murder. Equity required that other lives—especially those of law enforcement—be taken as recompense and property destroyed and looted as an expression of outrage against injustice.
President Trump may have been incautious to stage his rally at the time and place that he did. He and his enthusiastic audience surely retained vivid memories of the riots of the past summer, including the one in May when rioters launched an assault on the White House, coming so close to breaking through the barriers surrounding the White House grounds that the secret service was forced to evacuate the president to a secure location. The Executive branch is a coequal branch of government which holds principal responsibility for the nation’s security. Was democracy in danger that day? Was this the equivalent of the Civil War or Pearl Harbor? No one, in or out of the media or Congress, made any such suggestions of this kind. In fact, President Trump was roundly criticized because he didn’t come forward to greet the rioters instead of cowardly retreating to safety. Democracy in danger? The presidency a coequal branch of government? Not in the Trump era.
Instead of retreating on January 6, should we havet expected Trump’s May critics boldly to advance on the mob that was no less angry and determined than the May mob and confront them? They retreated, claiming that the sacred precincts of democracy had been violated and its high priests were prevented from performing the nation’s ceremonial duties. Many of the Capitol police, unlike the secret service, invited a considerable number of the Capitol invaders to enter the building pledging them to act peacefully. Others broke police lines, ignoring police warnings and engaged in violence that injured officers. All who violently breached the Capitol should be punished according to the applicable laws, but everyone must recognize that a general spirit of lawlessness drove the mob on January 6, a spirit that was prepared long in advance by the actions of BLM and Antifa in the riots of the summer of 2020. This was the true cause of January 6—Trump surely gave it impetus, but the casual acceptance of rioting as a source of “social justice” by the nation’s leaders released the spirit of lawlessness upon the nation that will not be easily contained.
The imprudence of Trump in staging his January 6 speech is hardly comparable to the recklessness of the praise that Biden and Harris heaped on BLM and Antifa for their destructive riots in the summer of 2020. And the hundreds of millions of dollars in financial support received from corporate America and its oligarchic elites must be regarded as contributions to rioters, if not terrorists. To call BLM and Antifa “social justice warriors” seems hardly appropriate; In fact, it is obscene. Nothing BLM or Antifa did that summer advanced the cause of social justice. In fact, the racial agenda that was set in motion by their activities may well have sounded the death knell of American democracy.
The First Amendment Doesn’t Apply to Impeachment. Or Does it?
The House managers argued that the First Amendment doesn’t apply to impeachment trials. The managers’ argument is exceedingly thin. “Most fundamentally,” they asserted, “the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.” The statement, however, is hardly on point. Of course, the First Amendment doesn’t insulate government officials from accountability for abuses, but what about freedom of speech? What constitutes an “abuse of speech” by a government official that is different from an “abuse of speech” by a private individual? An individual’s speech would be tested by Brandenburg standards; but is the government official’s speech held to different standards and, if so, what are they?
The managers’ brief is not at all clear on this issue, but we have one hint. An example of an abuse of speech by a government official that would not receive First Amendment protection is claiming, without sufficient evidence, that an election won by a Democrat was fraudulent. The managers seem to argue that publicly inviting supporters to a rally in Washington, D.C., on the day of the electoral vote count before Congress, to hear speeches on the Ellipse supporting the charges of fraud, is itself “incitement” that does not fall within the protections of the First Amendment. Needless to say, this lacks clarity, especially when the managers proceed to test the former president’s speech by the standards of Brandenburg v. Ohio: “[E]ven if President Trump’s acts while occupying our highest office were treated like the acts of a private citizen, and even if the First Amendment somehow limited Congress’s power to respond to presidential abuses, a First Amendment defense would still fail. Speech is not protected where it is ‘directed to inciting or producing imminent lawlessness and is likely to incite or produce such action.’ Given the tense, angry, and armed mob before him, President Trump’s speech . . . plainly satisfies that standard.”
We have already exposed the misrepresentation by the managers of Trump’s speech and the audience to whom he spoke as well as the misrepresentation of the holding in the Brandenburg case. Under the Constitution, Trump’s speech did not amount to an incitement of imminent lawless action even if the managers had represented the facts correctly. Trump’s defense team easily disposed of the managers’ facile constitutional construction.
The second impeachment of President Trump failed. It was as much a farce as the first. It was first and foremost an attempt to remove Trump from politics because, according to the Democrats, he was a danger to democracy. He was accused of fomenting what has come to be known as the “Big Lie,” the belief that the 2020 election was stolen. There is no evidence, say the defenders of Biden’s election—none whatsoever—to support the Big Lie. A multitude of courts have ruled against it. This last point is only partially true because almost all the decisions, in particular the Supreme Court ruling in Texas v. Pennsylvania, have been made on issues of standing and have not reached any of the merits of the substantive claims of election fraud. Very recent cases and challenges raise serious substantive claims, but the election itself will not be overturned.
Still, the Washington establishment continues to characterize the riot at the Capitol as an insurrection that posed the greatest danger to American democracy, as Joe Biden recently stated, “since the Civil War.” It was fomented by Trump followers who, for the most part, were inspired by “white supremacy.” White supremacists are the greatest source of “domestic terrorism” and the Justice Department and the intelligence agencies have announced they will make the elimination of domestic terrorism that is connected to white supremacy their priority. Speeches by Biden and Attorney General Merrick Garland have come very close to identifying Trump supporters as the “white supremacists” who are most likely to be “domestic terrorists.”
The nation recently was scandalized when information surfaced that the Department of Education and the Justice Department, ostensibly acting at the request of the National School Boards Association, was prepared to declare parents who protested against school board education policies, particularly those involving critical race theory and vaccination and mask requirements, “domestic terrorists.” In hearings before Congress Attorney General Merrick Garland’s feeble attempts to deny the revelations about this policy fell embarrassingly flat when the evidence appeared overwhelming. The Justice Department on the one-year anniversary of January 6, 2021 announced the creation of a domestic terrorism unit to meet “the elevated threat from domestic violent extremists in the U.S.” Assistant Attorney General Matthew Olsen testified before Congress. In other remarks made before the January 6 Committee Olsen said that “We have seen a growing threat from those who are motivated by racial animus. . . and extremist anti-government and anti-authority ideologies.” Racial animus means primarily the supposed white supremacy said to have animated the January 6 rioters and that seems to go hand in hand with anti-government and anti-authority ideologies.
One wonders how much Olsen knows about the American founding. Surely, he must have heard of the American Revolution, the greatest “anti-authority” movement probably in the history of the world. Those who are passionately enamored of “social justice” deny the relevance of the Declaration of Independence (wasn’t it written when there was still slavery in the country?), but anyone capable of thinking knows that it was a revolution in world historical consciousness which made not only constitutional government possible but, in Abraham Lincoln’s words, its central principle that “all men are created equal” was intended to be a “standard maxim for free society.” It was meant to be a “stumbling block,” Lincoln said, “to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation, they should find left for them at least one hard nut to crack.”
The central principle of the Declaration—that “all men are created equal”—is the best defense against what is alleged to be “white supremacy.” But as we have seen over and over again, the Democrats and progressives have refused to accept equality as a constitutional or legal principle. That “hard nut” was “cracked” long ago by the progressives and their assault on the principles of the Declaration and the founding. It is now mere detritus left on the political battlefield. Progressive Democrats have abetted “white supremacy” by steadfastly refusing to accept equality as a principle of political life.
But the principles of natural law and natural right adumbrated in the Declaration are as sound today as when they were written in 1776, and because those principles are non-historicist, they are applicable to all human beings at all times. Progressivism, despite its best efforts, has been unable to repeal human nature. The task of reviving natural law and natural right principles will not be easy, but not impossible, especially when right and natural justice is on the side of an appeal to first principles. According to the Declaration, the right of revolution is the most valuable right that human beings possess; it is the right that guarantees every other right and always resides in the people. It can never be given up and can never be surrendered or delegated to government as our Assistant Attorney General erroneously seems to think.
It is the right “to alter or abolish” government and “to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The “Safety and Happiness of the people was the end or purpose of government to which the people consented in the first place. When government proves unwilling or unable to secure those ends, the people have the natural right to withdraw their consent and establish new government. Tyrannical government may suppress the exercise of the right of revolution for a time, but it can never extinguish it as a fundamental right of the people as long as human nature exists. Assistant Attorney General Olsen may continue to be an anonymous cog in the ever-expanding security state, but the love of freedom which is an eternal aspiration of the human soul will always embrace the natural right to an “anti-government ideology” when government acts to deny the people of its right to “safety and happiness.”
It may be utterly trite to remind readers that this is a profitable time to read or reread George Orwell’s prescient novel, 1984. In it he describes “New Speak,” the language of Oceania, the socialist utopia that was developed to enhance the tyrannical control of the party of “Big Brother.” No one who reads the novel, written almost 75 years ago, can fail to think of the similar way “political correctness” controls public discourse today. Orwell writes that “it would have been impossible to render” the central principles of “the Declaration of Independence into Newspeak while keeping to the sense of the original. The nearest one could come to doing so would be . . . the single word crimespeak.” Assistant Attorney General Matthew Olsen described the principal mission of the newly proposed domestic terrorism unit as the investigation of individuals and groups harboring “anti-government ideologies.” This must necessarily include those who support the rights contained in the Declaration of Independence, including the right to “alter or abolish” government. This is now “crimespeak” in America. As a supporter of natural right and the “Laws of Nature and of Nature’s God,” I now confess myself to be a domestic terrorist.
White Supremacy and Domestic Terrorism
No reasoning person, nor anyone with the slightest degree of common sense can possibly believe that January 6 was the greatest danger to American democracy since the Civil War. Presidents may be indulged for employing a certain amount of hyperbole, but what Biden said goes beyond the kind of hyperbole that graces legitimate rhetorical flourishes—it is a damnable lie. It does have something in common with the Civil War, however. The Democratic Party before and during the Civil War insisted on dividing the nation by race and making race the persistent characteristic of the human persona. Biden and the Democratic Party today are on a crusade to do the same. The Democrats have a long track record of racial politics and show no signs of abandoning those long-established political goals. Before and during the Civil War, the Democratic Party was the party of slavery; after the Civil War, it supported Black Codes, Jim Crow, and segregation; belatedly seeking to make amends, it supported a new kind of segregation, affirmative action and its terminus ad quem, equity, a racial spoils system.
Biden and his attorney general, under the guise of prosecuting insurrectionists, are dividing the nation on racial lines. This is the real tragedy of January 6. Anyone who would deliberately and self-consciously advance racial division as the Biden Administration is doing does not have the nation’s best interests—nor democracy—in mind. Since the Civil Rights Act of 1964, the nation has made an extraordinary effort to overcome racial division, but it has faced massive obstacles from the Left. The emergence of “equity,” in all probability, has signaled the end of that great piece of legislation, as race has become openly and explicitly the basis of decisions guiding public policy. Whereas it was once thought necessary to disguise racial decisions as “goals and timetables” or as “equitable remedies” for the lingering effects of past discrimination, now the need for disguise has been thrown off and the ugly face of race is brazenly displayed. Equity means that goods and services—public policy—can be based on racial characteristics alone; there is no longer any need for justification.
Was It an Insurrection?
The hysteria surrounding the events of January 6 has been astounding. The argument has been that this was an attempted coup by an armed mob that sought to place Trump in office on the false claim that the election had been stolen from him. Democracy was under attack; the Constitution was endangered, and the fate of the constitutional republic was teetering on the edge of anarchy. The odd thing about this “armed rebellion” was that none of the insurrectionists were armed. One carried a folding knife, another showed up armed with bear spray, and another wore a bulletproof vest—all of these “armed” insurrectionists were surely conscious of the fact that they had to transit one of the most dangerous cities in America that had recently been in the grip of riots orchestrated by BLM and Antifa in order to get to the Capitol. What rational person wouldn’t carry bear spray or wear a bulletproof vest? I am frankly surprised that more didn’t resort to such protection. Leaving that aside, what serious insurrectionists show up to an insurrection without weapons? Or without the military or an armed militia to back them up? This was never intended to be an “armed insurrection” and no amount of hysteria can turn it into one.
Early press reports that a Capitol police officer had been beaten to death by “insurrectionists” proved to be false; This was typical of the day’s media coverage. Several police officers did suffer injuries, none of them life-threatening. One officer died days later of a previous condition unrelated to the riots. He was treated as a savior who saved countless lives. I don’t minimize his contributions, but his efforts were magnified to exaggerate the actual “terrorism” of the rioters. One person who was killed that day was a rather petite woman, a military veteran and Trump supporter, who was deliberately shot by a Capitol policeman against whom the Justice Department, after a cursory investigation, has refused to file charges. The officer was never interviewed in the investigation and admitted that before he shot the unarmed Trump supporter, he could not see her hands. In other words, he did not know whether she was armed or not. The officer nevertheless said he shot her because she posed a threat to the Capitol, although he did not explain why others who were crowded around her did not pose a similar threat. This officer does not appear to have legally shot an unarmed person who was guilty, at most, of trespass. Yet the officer has since been promoted. At a minimum, the rioters are not the only ones who threatened democracy and the rule of law on that infamous day.
The Justice Department has launched the largest manhunt in its history in an extraordinary effort to track down everyone who crossed the barriers or entered the Capitol. The public has been asked to help identify rioters who have been subsequently charged with a variety of offenses, including trespassing, obstructing or impeding a government meeting, destroying government property, and assaulting, resisting or impeding an officer. There have also been conspiracy charges: conspiracy to obstruct a congressional proceeding; conspiracy to obstruct law enforcement during civil disobedience, and conspiracy to injure an officer. Notably absent is that no one actually has been charged with “insurrection” or “conspiracy to commit insurrection,” for the simple reason that under the law it would be impossible to prove that an insurrection had taken place.
An FBI report has alleged that there is no evidence that the so-called insurrection was planned.
Who would support the insurrectionists in their attempt to install Trump as president? Had they even thought that far? This was a comedy of errors—a riot, but not a coup. There was violence in the Capitol, typical of a riot, but no large-scale fires or property destruction such as occurred in the riots led by BLM or Antifa in the lawless months leading up to this unparalleled event. There was illegal trespass, and an illegal attempt to disrupt a congressional meeting, but hardly a threat to democracy. Did the United States come close to regime change on January 6, 2021? The troop of clowns who invaded the capitol might better be described as “merry pranksters.” How else can you describe the “rioter” in fur robes and Viking horns—called “QAnon Shaman” by the media, who spoke in a friendly manner with a Capitol police officer in the House chamber? He was nevertheless so dangerous, that he was held without bail, in solitary confinement, and ultimately sentenced to 41 months in prison.
U.S. District Court Judge Royce Lamberth, who issued the sentence, acknowledged that the Shaman had not engaged in any physical violence but asserted that “what you did was terrible. You made yourself the epitome of the riot . . . what you did here was actually obstruct the functioning of the whole government. It’s a serious crime.” At least Judge Lamberth didn’t say the Shaman engaged in insurrection. Perhaps he recognized that the insurrection exists only in the febrile imaginations of Joe Biden and the radical-left of the Democratic Party who seek to divide the nation once again along racial lines as did the Democrats of old. Insurrection has fallen on hard times. It has been replaced by the low art of race-baiting. That is the real threat to democracy.
– – –
Edward Erler is a senior fellow of the Claremont Institute and author of Property and the Pursuit of Happiness: John Locke, the Declaration and James Madison (Roman & Littlefield, July 2019) and The United States in Crisis: Citizenship, Immigration and the Nation-State
Photo “Donald Trump” by Gage Skidmore CC BY-SA 2.0.