John Packer is associate professor of law at the University of Ottawa. In 2012, he served as the UN’s International Legal Adviser to the Commission of National Inquiry into the alleged coup in the Maldives.
In the face of threats to the nation, clear-eyed recognition of the facts is imperative. Indeed, if there is one big lesson from the last four years, surely it must be that truth matters. And the truth is that what happened before, at, and in the Capitol Building on Jan. 6 was most certainly an attempted coup d’état.
That’s the common expression for a sudden, illegal and usually violent seizure of political power – a strike on the state. It is not a legal term. You won’t find it in the U.S. Constitution or in hardly a legal instrument anywhere. It’s a notion of political science.
In the United States, the legal equivalent is the Criminal Code’s prohibition on “advocating the overthrow of government.” Specifically, the prohibition applies to “whoever knowingly or wilfully 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.”
It is notable that there is absolutely no requirement that military, security services or other such forces qualify a possible overthrow. That idea – of a “military coup” – derives from historical practice in some parts of the world. In fact, it’s still to be seen whether and to which extent members of the military-security services participated in the coup. Senator Tammy Duckworth has called for an investigation into the matter.
From my experience, the essence of the matter is the use of violence to overthrow the government. It matters not the branch, the moment, or the professional association of the putschists.
The rule of law exercises its authority non-violently or, when justified in the exception, as the monopoly of force employed exclusively by public authority strictly for purposes prescribed by law and in ways and measures limited by law. This stands in sharp contrast to the violence of the mob and any attempted seizure of the instruments of state authority by the mob for their illegitimate rule. The difference is civilizational.
Of course, there is an intimate relation between politics, law and violence. To be a nation of laws is to organize and conduct politics according to the rule of law, with no one above it. Force is only legitimate in the defence of the laws and of the nation which, through its peaceful politics, makes the law. The will of the people – not force – confers legitimacy. This also gives legitimate power to national defence and policing to protect and maintain the state, its people, laws and institutions.
On Jan. 6, however, a sudden, illegal and violent rebellion by a mob attempted to stop the U.S. Congress from performing an act of peaceful governance according to law. It was telegraphed in abundance and shamelessly, and it was widely recorded and broadcast. Public property was destroyed or defaced; people were assaulted and injured. Five people died, including a police officer attempting to protect the state.
This insurrection was incited with full voice, knowledge and direction by the sitting U.S. President. This was not an effort so much as to seize power, as it is in most coups d’état, but a declared attempt to retain power by thwarting its transfer as prescribed by law. In the circumstances, that is a distinction without a difference.
In legal terms, the insurrection was also plainly not spontaneous. It was caused by seditious conduct, by words spoken and by actions that fomented the rebellious sentiments and drove the insurrectionists to their heinous actions. In America, sedition is a criminal act where two or more persons “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” On Jan. 6 (and before), that happened in plain sight, with Mr. Trump in the lead and some members of Congress, such as Josh Hawley, Ted Cruz and Tommy Tuberville, in active support.
To be clear, those politicians and others who supported Mr. Trump and his band of lawyers in painfully exhausting every peaceful avenue of contestation should all be accused of awful judgment and of engaging in dangerous politics as they coddled a delusional Trump to the detriment of America and its standing in the world. But they appear to have also tip-toed around the law. Their insistence on continuing the game was either evidence of sedition or a breach of their Constitutional oath of office, which requires that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic.” For certain graduates of Ivy League law schools in particular, this failure to understand or honour their oath or, worse, commit sedition, is jaw-dropping.
So the simple fact is that America experienced an attempted coup – one that was bad and that failed, but could have been far worse. Now, like other countries that have faced such challenges, America must recognize exactly what happened and deal with it as a great democracy must: truthfully, deliberately and definitively according to the scrupulous and visible rule of law. As so many other countries know – and as America has so long taught – this is the only way democracy will be defended and able to endure as it heals its open wounds and rebuilds its social and political institutions to face the challenges ahead.
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