Wednesday’s mob attack on the United States Capitol to disrupt the formal recognition of the election of Joseph Biden as President of the United States by Congress sent shock waves across the country and around the world

Given that the United States has a long history of democratic rule in which elections rather than violence dictated who should run the country, the images of hundreds of people storming the Capitol were around you to support lost presidential candidates, unfathomable

First and foremost, this insurrection represents a political crisis in the United States that is the predictable climax of Donald Trump’s sustained assault on America’s democratic institutions over the past four years

However, given the pivotal role Trump played in reaching out to the crowd just before the attack, asking them to go to the Capitol, and tweeting messages of support during the attack, this also represents a legal crisis on the legal Our country’s questions are profound: Can and should the attackers be prosecuted for trying to overthrow the government? Can Trump himself be prosecuted and run for the presidency again? And finally, can Trump preventively try to apologize not just to the attackers but to himself before leaving (or being removed)?

Based on possible law enforcement actions, it has been a crime under American law since 1789 to use force to try to overthrow the government or encourage efforts.This criminal law was a subject of intense debate in the United States last fall when Trump’s top officials -Government threatened to use it against protesters who flooded American streets after the murder of George Floyd to decipher police violence. In October, I wrote that nothing in this protest activity moved closer to threats to overthrow the government, but that those who Most at risk of prosecution are “supporters of President Trump or even the President himself, given his increasingly threatening comments on the transition to resistance should he lose the upcoming elections”

That observation now looks forward-looking. Current U.S. criminal law, dating back to 1940 and providing for fear of the overthrow of communists, provides for up to 10 years’ imprisonment for anyone who rebelled or rioted against authority of the USA incites, supports, supports or participates in the USA or its laws, or gives help or comfort for them “This would clearly apply to those who invaded the Capitol, assaulted officers, smashed their way into the Senate Chamber, and demolished the legislature to force them to void the election and anoint Trump as president

Trump also appears to be prosecuted because the law reaches anyone who “incites” the insurrection and because he personally appeared on stage in front of the crowd asking them to go straight to the Capitol, which they then did In addition, this law provides that anyone convicted after him “cannot hold office in the United States,” which would prevent Trump from retrying to run for president in 2024, as he threatened to do

Trump is also prosecuted under a second American law technically known as the Alien Registration Act of 1940 but commonly known as the Smith Act This makes it a crime punishable by up to 20 years imprisonment for anyone who “knowingly or willfully” advocates, supports, advises, or teaches the duty, necessity, desirability, or adequacy of the United States government overthrow or destroy by force or violence “Again, his speech to the crowd and his urge to go to the Capitol clearly makes Trump one who knowingly and willingly advocates the attack. And the constitutional protection of free speech in the US would be Trump offer no protection as the US Supreme Court has recognized that such protection does not extend to speeches intended to provoke imminent violence

The prospect that the incoming Biden administration will jail Trump and his supporters who attacked the Capitol would undoubtedly spark a new political crisis, but the immediate legal question is whether Trump can try to end the attackers and even apologize to himself before Biden’s inauguration later this month. The president’s pardon authority has been the subject of much discussion in the US over the past two months as Trump issued pardons on his political allies. To grant redress and pardons for violations of the United States, except in cases of impeachment, aside from expressly banning the use of the pardon if the president has been charged, that power is essentially unlimited – in fact, nothing clearly prevents Trump now from getting people to pardon them before they even start sued, including yourself

We are facing a pivotal moment in America Much of the attention will rightly be focused on the political crisis caused by the attack on our presidential elections, but we also face a legal crisis that will unfold over the next two weeks could come to a head

Christopher Dunn is the legal director of the New York office of the American Civil Liberties Union, the largest civil liberties organization in the United States

Brisbane Times

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