Special Counsel should seek superseding indictment charging Trump with insurrectionThe Constitution is not a suicide pact
300 New Jersey Avenue, N.W., Suite 900 Washington, D.C. 20001 Phone: 202-465-8728 August 30, 2023 Jack Smith Special Counsel U.S. Department of Justice Special Counsel’s Office 950 Pennsylvania Avenue, N.W. Room B-206 Washington, D.C. 20530 Re: Superseding Indictment Adding Count for Insurrection in United States v. Trump, Case 1:23-cr-00257-TSC, United States District Court for the District of Columbia Dear Special Counsel Smith: We, the undersigned, urge you to consider asking the federal grand jury in the above-captioned prosecution to add a count for insurrection in violation of 18 U.S.C. 2383. The reason for our request is the urgent need to disqualify former President Donald Trump from public office under section 3 of the Fourteenth Amendment. If Mr. Trump were to return to the White House, he would destroy the Constitution and undo the American Revolution. His inveterate contempt for the Constitution is a clear and present danger to the survival of the Republic. Among other things, Mr. Trump extra-constitutionally proclaimed on July 23, 2019, “Then I have Article 2, where I have the right to do anything I want as president.” He later insisted the Constitution should be “terminated” by shouts of massive electoral fraud. According to Mr. Trump’s former national security advisor, John Bolton, obstruction of justice was a “way of life” at the White House. And Mr. Trump has continued that “way of life” after leaving the White House in seeking to obstruct your investigation of his Espionage Act violations. United States v. Trump, Case 9:23-cr-80101 (S.D. Fla.). The United States Supreme Court instructed in Kennedy v. Martinez-Mendoza, 372 U.S. 144, 160 (1963), “[T]he Constitution…is not a suicide pact.” We submit evidence in the public domain establishes beyond a reasonable doubt that Mr. Trump committed, aided, and abetted insurrection against the United States on January 6, 2021. He exhorted, inspired, or incited his armed followers to attack the Capitol for the purpose of preventing Vice President Mike Pence from “count[ing]” state-certified electoral votes as stipulated by the Twelfth Amendment and Electoral Count Act. Mr. Trump knew his objective was unconstitutional. Mr. Pence has testified that on the morning of January 6th, Mr. Trump demanded that “I choose between him and the Constitution.” When Mr. Pence rebuffed Mr. Trump’s hectoring to flout the Twelfth Amendment, President Trump scolded, “You’re too honest.” Mr. Trump idled for 187 minutes watching his armed followers attack and occupy the Capitol chanting “Hang Mike Pence.” He abdicated his constitutional duty to summon law enforcement to suppress the violent insurrection. The Vice President has stated that Mr. Trump’s “reckless words endangered my family and everyone at the Capitol that day….” The House Select Committee on the January 6th Attack on the Capitol recommended Mr. Trump’s prosecution for insurrection. Mr. Trump’s second impeachment trial was for insurrection. The charge commanded majority support (57-43) in the United States Senate. As reported in The New York Times, (August 13, 2023), conservative constitutional scholars William Baude of the University of Chicago and Michael Stokes Paulson of the University of St. Thomas, have authored an article for the University of Pennsylvania Law Review, scheduled for publication next year, finding Mr. Trump guilty of insurrection within the meaning of section 3 of the Fourteenth Amendment applying the late Justice Antonin Scalia’s interpretive norm of “original intent.” The authors are active members of the conservative Federalist Society. Their conclusion has been unconditionally endorsed by Professor Steven Calabresi of Northwestern and Yale law schools and founder of the Federalist Society. Finally, a free speech defense to insurrection would be unavailing. In a companion civil rights case stemming from January 6, Thompson v. Trump, 590 F. Supp 3d 46 (D.C.D.C. 2022), U.S. District Judge Amit P. Mehta held that the First Amendment was undisturbed in holding Mr. Trump legally accountable for his incendiary Stop the Steal lies to an armed crowd impliedly urging an attack on the Capitol to prevent Vice President Pence from faithfully executing the Twelfth Amendment and Electoral Count Act. Free speech icon Justice Louis D. Brandies confirmed in a concurring opinion in Whitney v. California (1927) that the First Amendment is undisturbed by the prosecution of speech calculated to occasion imminent serious harm. It is difficult to conceive of any greater injury to a democracy founded on the consent of the governed than frustrating the peaceful transfer of presidential power in accord with judicially vetted and politically certified popular votes. If Mr. Trump’s appalling behavior on January 6 does not constitute insurrection, it is difficult to conceive that anything less than instigating a second civil war would qualify. Section 3 of the Fourteenth Amendment is too important to the maintenance of our Republic to slumber as the 2024 presidential election approaches. Sincerely, Ralph Nader Bruce Fein |