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New Fani Willis Witnesses, and the Power of Drudge, with Dave Aronberg, Mike Davis, Chris Moody, and Jamie Weinstein | Ep. 738
The Megyn Kelly Show
Legal Analysis of the Insurrection Statute and Congressional Inaction
The existing penal law against insurrection is currently the only statute that could be used, but former President Trump has not been charged under it. The likelihood of Congress changing the law before November is deemed to be less than zero, as Congress tends to be inactive. A recent court decision stripped federal courts of the power to disqualify a federal candidate for office due to insurrection, emphasizing the need for Congress to create a mechanism for such disqualification. There is a suggestion that there could be a civil component to address insurrection, in addition to the criminal aspect. While Congress or federal prosecutors could eliminate individuals involved in insurrection under the existing federal criminal statute, evidence of insurrection or rebellion would be required for charges to be brought by the Biden Justice Department.
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Speaker 1
You're right. I mean, I simplified it for the audience. But what Andy is saying is that right now, the only existing statute that could be used is the penal law against insurrection. That's the only law in the books right now that could be used. And Trump has not been charged as an insurrectionist. So yes, going forward, sure, they could change the law. But you tell me how in a Republican-controlled House, and we all remember Schoolhouse Rock, it's got to go through the House and the Senate and be signed by the president to become a law. They're going to change the law between now and November. Oh,
Speaker 4
there is a less than 0% chance they're going to do that. There is not going to be a change. Congress is not going to act. Congress is going to do what they're best at, which is do nothing. So what this court decision did was to also tell federal courts that you don't have the power to disqualify a federal candidate from office because of insurrection. Even if they're convicted of an insurrection, it's going to be up to Congress to create a mechanism to do that. And so that takes the power away from state officials and judges until Congress acts. So that's why it was such a broad ruling, such a powerful ruling by these justices and why even Justice Amy Coney Barrett said, hey, let's not go this far. Let's use some judicial restraint. But Katie, bar the door.
Speaker 1
Mike's shaking his head no. Why?
Speaker 2
Well, I would say I think David is right that you can have a civil component to this because the predecessor to this criminal statute on insurrection or rebellion, there was a civil statute. So it could be either civil set up by Congress or criminal. So that's, you know, well, according to the Griffin's case, it has to be criminal, but there was a civil component to this. So, you know, that's, he could be right there. I would say this on, congress right now it could federal prosecutors right now get rid of people engaged in insurrection and the answer is yes they would have to be charged those insurrectionists would have to be charged under this federal criminal statute for insurrection or rebellion with a disqualification clause that's already on the books congress wouldn't have to do anything no it just the Biden Justice Department would actually have to come up with evidence of insurrection or rebellion.
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