NONE DARE CALL IT INSURRECTION.

We previously granted, for the sake of argument, the possibility that what Donald Trump's supporters did to disrupt the electoral vote count was an "insurrection" in the sense of Section 3 of the XIV Amendment.  I have my doubts, but then I'm old enough to remember the shelling of the Russian parliament building in Moscow by military units loyal to Boris Yeltsin.

I don't know if Reason's Jacob Sullum is that old.  He clearly raises similar doubts.

Trump's misconduct included his refusal to accept Biden's victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to "faithfully execute" his office and to "preserve, protect and defend the Constitution." It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.

Achieving the same result under Section 3 of the 14th Amendment, by contrast, does require concluding that Trump "engaged in insurrection." But in reaching that conclusion, the Colorado Supreme Court never actually defines insurrection.

"At oral argument," the opinion notes, "President Trump's counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct." But the court does not offer "a specific definition" either: "It suffices for us to conclude that any definition of 'insurrection' for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country."

That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to "hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power" by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.

A belief, incidentally, that is not rebutted by the failure of legal protests, mostly brought too late, questioning the court- and public-health-ordered revision of voting procedures during the corona shutdowns, when, conveniently for the public health officials, the legislatures were not in session either. But I digress.  Mr Sullum concludes, correctly, that Donald Trump did not have the organizational skills of those dead-ender Communists who occupied the Russian parliament building.

All of this evidence is consistent with recklessness and dereliction of duty. But it falls short of proving that Trump deliberately "encouraged the use of violence" or that he had a "specific intent" to cause a riot, let alone that he thereby "engaged in insurrection."

Power Line's John Hinderaker also questions the notion that the futile and stupid gesture at the Federal Capitol was an insurrection.

What happened on January 6 was a protest that got out of hand. The principal violence, and the only fatality, was inflicted by a capitol police officer. Not a single person arrested that day possessed a firearm. Ergo, to say that it was an insurrection–an attempt to overthrow the government!–is ridiculous.

If you're fretful, though, about judicial overreach, buckle in.

Pundits are saying that Maine’s seconding of Colorado’s Trump ban will prompt the Supreme Court to expend its remaining political capital by putting the 14th Amendment argument out of its misery. I hope they are right.

Alan Dershowitz also has doubts about the Colorado court opinion, and squaring that futile and stupid gesture with an armed occupation of a legislative chamber.

Dershowitz was reacting to the court's 4-3 decision Tuesday that cited a rarely used provision of the U.S. Constitution that bars officials who have engaged in "insurrection or rebellion" from holding office.

"I think it will not survive the test of history. I don't think it'll survive the test of Supreme Court review, but nobody knows because the Supreme Court often stays out of political cases," Dershowitz told [Rob] Schmitt.

"But if I had to make a guess, I would say the court will grant the stay and then hear oral argument and then invoke Section 5 and say, 'Look, if Congress wants to do this, fine; but you can't have state courts do this," he added.

Further, Dershowitz said that what occurred on Jan. 6, 2021, was not an insurrection in the first place.

"And you know there was no insurrection there. There was a public demonstration that got out of hand. That's not an insurrection. We've had insurrections in our history; this was not one of them," he said.

"What is an insurrection? It's not defined, and it should be defined. And only Congress can define it. But the Colorado Supreme Court has no jurisdiction under Section 5 to have anything to say about this Constitutional provision," Dershowitz said.

That noted, the lawsuits to remove candidates from primary ballots are likely to continue, and, as the grim strategy punishment cycle plays out, those are likely to include attempts by Republican voters or officials fed up with the illegal immigration being enabled by the Jarrett regency.