Bright-line or Litmus Test for Sedition? The media is crediting Donald Trump, Giuliani and Trump's son with inciting the protesters to march from the Ellipse to and breach the Capitol building on 6 January 2021, interrupting the electoral college finalization. Is there a bright line or litmus test that can be applied to determine if sedition has been committed?
There are several treason and sedition crimes in federal law all of which are defined by statute. Treason Offenses Treason offenses pertain to acts in furtherance of a foreign country or sometimes more specifically a foreign country with which the United States is at war (which is the legal definition of an &quot;enemy&quot;). These include Sections 2381, 2382, some of the subsections of 2386, 2388, 2389 and 2390. They are: 18 USC § 2381. Treason (&quot;Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.&quot;) 18 USC § 2382. Misprision of treason (i.e. failure to report knowledge of someone else's treason to an appropriate government official). 18 USC § 2386. Registration of certain organizations (the guts of this offense's treason component are found in part B(1) which provides that: &quot;The following organizations shall be required to register with the Attorney General: Every organization subject to foreign control which engages in political activity; . . . [and] Every organization subject to foreign control which engages in civilian military activity&quot;) 18 USC § 2388. Activities affecting armed forces during war 18 USC § 2389. Recruiting for service against United States 18 USC § 2390. Enlistment to serve against United States None of these are implicated by the question. Sedition Offenses Sedition offenses pertain to acts to overthrow or interfere with the government that do not have a clear nexus with a foreign country.These include Sections 2383, 2384, 2385, some of the subsections of 2386, and 2387. They are: 18 USC § 2383. Rebellion or insurrection (see below) 18 USC § 2384. Seditious conspiracy (see below) 18 USC § 2385. Advocating overthrow of Government Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof-- Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons. 18 USC § 2386. Registration of certain organizations (the guts of this offense are found in part B(1) which provides that: &quot;The following organizations shall be required to register with the Attorney General: . . . . Every organization which engages both in civilian military activity and in political activity; . . . and Every organization, the purpose or aim of which, or one of the purposes or aims of which, is the establishment, control, conduct, seizure, or overthrow of a government or subdivision thereof by the use of force, violence, military measures, or threats of any one or more of the foregoing.&quot;) 18 USC § 2387. Activities affecting armed forces generally (in the pertinent part: &quot;Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States: (1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or (2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States-- Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.&quot;) But the sedition offenses potentially pertinent to the question are Sections 2383 and 2384. They are as follows (emphasis added) 18 USC § 2383. Rebellion or insurrection Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. And also (line breaks and line numbers inserted editorially for ease of reading and discussion purposes): 18 USC §2384—Seditious Conspiracy (1) If two or more persons (2) in any State or Territory, or in any place subject to the jurisdiction of the United States, (3) conspire (4) to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, (5) or to oppose by force the authority thereof, (6) or by force to prevent, hinder, or delay the execution of any law of the United States, (7) or by force to seize, take, or possess any property of the United States contrary to the authority thereof, (8) they shall each be fined under this title or imprisoned not more than twenty years, or both. Lines (1), (2) and (3) are elements of the offense which must be established beyond a reasonable doubt by the prosecution in a criminal trial. In addition one of the four elements (4), (5), (6) or (7) must be established beyond a reasonable doubt by the prosecution in a criminal trial. Elements (6) and (7) are particularly relevant to the question here. The meaning of the words used in those elements is further defined in case law interpreting the statute in connection with the preparation of a jury instruction applying this statute to the facts presented at trial in a case (as well as lots of more general instructions on how a jury makes factual determinations). Only elements of the offense upon which some evidence has been presented by the prosecution are included in jury instructions. But the definitions in a jury instruction which is operationally the law in any particular case doesn't get a whole lot more specific than the statutory language quoted above. Ultimately, any vagueness in that language has to be resolved unanimously by the jury (or by a judge in a trial to the court). If these elements are established, the maximum punishment of (8) is authorized. Caveat The discretion of the sentencing judge to impose a sentence is not nearly as unfettered as it appears due to general provisions of Title 18 of the United States Code related to the exercise of sentencing discretion by a judge which incorporate by reference the federal sentencing guidelines adopted by an appointed federal government commission. These guidelines are advisory, rather than mandatory, but still have real effect. A judge has to calculated the guideline sentence, then articulate based upon judicial findings of fact any reason for deviating from the guideline sentencing range, and if this process is not followed, or if the findings of fact made aren't supported by the trial court record or don't support the conclusion reached, the sentence can be reversed for an abuse of discretion when the guideline sentence isn't followed, even if the maximum sentence authorized by this statute is not exceeded.
Section 11302 of the California Elections Code makes it crystal clear - as soon as an office becomes vacant, the recall election proceeds anyway, unless as of that moment there are not enough signatures to proceed to the vote. So the resignation tactic can only be used to stop a recall election while they are still in the signature-gathering phase - it will not work if they have already gotten enough signatures. California's recall law as it applies to statewide elected officials is, frankly, idiotic (it should be like an impeachment, next officer in line gets the post), but it is designed specifically to stop a shenanigan like you describe. The Lieutenant Governor would become Governor if Newsom resigned, but only subject to the results of the Recall - if Newsom is recalled (despite already having resigned), the person with the plurality on part two of the ballot would become the next Governor.
We can only guess at what argument he has in mind, but one possible argument is that the standard is unconstitutionally vague, similar to the argument by McDonnell in the recent McDonnell v US (admittedly about a different statute). The vagueness argument was developed in several of the briefs: http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/ The unconstitutional vagueness argument has also been made specifically about 18 USC 793 (e). US v Hitselberger 1:12-cr-00231-RC D.D.C. (2014). The defendant made a motion to dismiss based on constitutional vagueness, but this motion was denied. Private Manning raised the same defence, also unsuccessfully: http://fas.org/sgp/jud/manning/051012-vague.pdf
It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched.
Although the constitution doesn't explicitly require your vote to be equal in strength, surely the founders intended with the word 'vote' that you at least get to choose who you vote for. Quite the contrary. The founders specifically intended that smaller states should have disproportionate strength - they knew exactly what they were doing. This was one of the major design goals of the Constitution and is reflected in several other areas (e.g. the structure of the Senate); the smaller states wouldn't have agreed to join the Union if such concessions hadn't been made. There's a general principle in law that "the specific overrides the general". You're not going to get anywhere by trying to read into the word "vote" when there is explicit text saying something different. If the founders intended the word "vote" to imply "equal power for everyone", then why would they have specified, in great detail, a system which does exactly the opposite? For that matter, the founders didn't particularly intend that the people be able to vote for president at all! Article II, Section 1 says only that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." There is no requirement that the state should hold an election to determine the appointment of the electors. According to Wikipedia, five states initially had the electors chosen by the state legislature, without having the people vote at all, and South Carolina continued to use this system until 1860. The 14th Amendment, section 2, appears to require that all eligible voters (male and 21 at the time, since modified by the 19th and 26th Amendments) be allowed to vote for their electors, but even there the wording is "any election" which appears to leave open the possibility of having no election at all. (It hasn't been tested as far as I know.) I think that your proposed lawsuit would be quickly dismissed, possibly as "frivolous".
No. The law would be void for vagueness. Connally v. General Construction Co., 269 U.S. 385, 391 (1926): [T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. The example of the "well known but hidden stop sign" appears to allow for arbitrary prosecution and should also be void.
See Meads v. Meads, 2012 ABQB 571, para. 272 OPCA litigants who advance these schemes will often focus on certain aspects of court formalities. Like Mr. Meads, they may scrutinize the court for some hidden indication of its true nature. A strange but common belief is that a flag with yellow or gold thread ‘fringes’ “denotes a military jurisdiction, not common law”. In R. v. J.B.C. Securities Ltd., 2003 NBCA 53 at para. 2, 261 N.B.R. (2d) 199, Chief Justice Drapeau of the New Brunswick Court of Appeal rejected a motion by Lindsay “... removing the gold‑fringed Canadian flag that has adorned the Court of Appeal’s hearing room for years ...”. This motion, and the argument that “[t]here is no lawful reason for a Canadian flag to be present other than the regular statutory authorized flag” was frivolous and vexatious: para. 9.
If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations.