Larry Lessig in Slate:
No one thinks Jan. 6 was a repeat of Fort Sumter. No one, that is, believes that Trump and his allies were rallying to secede from the Union. Nonetheless, the argument these lawyers press is that the words of Section 3, as understood at the time they were ratified, should reach the behavior we saw on Jan. 6. That behavior, they insist, was “insurrection or rebellion.”
Others have resisted this argument—including a co-founder of the Federalist Society who initially endorsed the idea and then changed his mind—because they don’t believe that Section 3 applies to the president. But there is a much more practical reason why it would be a mistake to apply Section 3 to the events of Jan. 6. And to see why, we need only envision a different scenario from the one that actually played out.
Imagine that on Jan. 6, Vice President Mike Pence did what Trump’s lawyer John Eastman was advising him to do: assert a constitutional authority to decide which electoral votes should be counted. Imagine he then excluded the ballots for Joe Biden in a number of critical states, and instead counted the ballots for Donald Trump in those states. And then imagine, on the basis of that count, that Pence declared Donald Trump reelected.
Most believe that at this point the Supreme Court would intervene. Yet anyone close to constitutional law recognizes that that backstop is actually quite leaky. There would be a very strong argument that the counting of electoral votes by the joint session of Congress is a political question, beyond the scope of legitimate Supreme Court review. That argument could easily have persuaded a majority of that court to stay out of the conflict, leaving Trump declared to be the next president. And with that act, the thousands surrounding the Capitol would have broken out in cheers. They would have stopped the steal, as they saw it.
What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide “insurrectionists” from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government? Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn’t break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?