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Besieging the institutions


This is a guest opinion from Rod Gramer, president and CEO of Idaho Business for Education.

We have all witnessed the dysfunction, vitriol, and attacks on education in the Legislature, at local school board meetings, and even at one of our community colleges which has landed it on probation and left it without a functioning board of trustees. We have even seen three attempts in the last four years to privatize education by providing taxpayer money to private and religious schools.

So, although we have seen what is going on, we don’t fully understand why it’s going on. What is behind this sudden and unprecedented attack on the public schools which are the heart, soul, and fabric that holds most Idaho communities together and has created productive citizens for the past 132 years? And, why the sudden and vicious attacks on our great public colleges and universities which have served the state and its citizens since before Idaho became a state?

To fully comprehend this attack on education in Idaho one must first realize this is not a home-grown war, but one that has been imported into our state by wealthy and influential out-of-state interest groups whose goal is to first destroy the credibility of public education and ultimately weaken and privatize our local schools and higher education institutions.

These out-of-state interests have picked up steam nationally and, in our state, partly because of the turmoil created by the pandemic. These conflict entrepreneurs have adopted the adage, “Don’t let a good crisis go to waste.” And they have discovered that they can use the pandemic and culture wars, especially racial justice, as a wedge issue to advance their goal of abolishing what they call “government schools.”

Furthermore, to better understand how these conflict entrepreneurs have successfully seized on race to achieve their goal, you must meet a 37-year-old man named Christopher Rufo, who until two years ago was a relatively obscure freelance documentary producer, living in the small town of Gig Harbor on Washington State’s Puget Sound.

In the summer of 2020, Rufo was homebound like the rest of us during the initial stages of the pandemic, when an employee of the City of Seattle sent Rufo a video of an anti-bias training program sponsored by the city. With time on his hands, he started doing on-line research and found out about an obtuse legal theory that was even more obscure than Rufo – something called critical race theory or CRT for short.

Before continuing it’s important to understand what critical race theory is and what it is not. CRT is not an outgrowth of Black Lives Matter, or the murder of George Floyd and it isn’t even related to diversity and inclusion programs. CRT is a theory that was developed in the 1970s, mainly in law schools, which looked at race through the lens of “systems,” or laws and policies that impeded the equal rights of minorities. Those rights, of course, are not a “socialist” plot, as Rufo and others would have you believe. They are enshrined in the U.S. Constitution thanks to Abraham Lincoln, upheld by the U.S. Supreme Court in Brown vs. Board of Education (1954), and reinforced in the 1964 Civil Rights Act and the 1965 Voters Rights Act.

Being the astute communicator that he is, Rufo saw CRT as an opportunity to create a political weapon. He twisted the whole meaning of CRT and tied it like an albatross to a variety of what he called far-left, “Marxist” ideas from the 1960s to create a negative narrative around the words critical race theory. He claimed that these “Marxist” ideas have been imbedded in public schools and public universities across America. He even made the outlandish argument that these “Marxist” ideas had infiltrated many of America’s private companies.

Rufo published an article City Journal, a publication of the influential libertarian Manhattan Institute, regarding CRT which caught the eye of Fox News’ Tucker Carlson who also saw an opportunity to create a political weapon.

Carlson invited Rufo to appear on his program to talk about how CRT had infiltrated the federal government. Following that, Rufo got a telephone call from President Trump’s chief of staff Mark Meadows who invited him to the White House to discuss CRT and to help the administration write an executive order banning bias-training in the federal government.

Suddenly, Rufo wasn’t an obscure freelancer living in a small Washington town any longer. He went on the speaking circuit, he was invited to do more national TV interviews and became a “fellow” at some of the country’s best-known libertarian think tanks.

Thanks to Tucker Carlson’s megaphone, CRT became a rallying cry to attack public education at all levels, with the goal of privatizing education in America. Earlier this month Rufo proudly told an audience at Hillsdale College in Michigan that CRT had gone from “zero” name identification to “75 percent” in just 18 months.

By the winter of 2021 CRT had become a major issue in legislatures across America, including in the Idaho Legislature where there were calls to ban the teaching of CRT in our public schools and universities. Using Rufo’s talking points, this effort was led by the Idaho Freedom Foundation which receives its funding from dark money funds which, in turn, are funded by out-of-state billionaires who want to privatize education.

When the CRT controversy erupted in the Idaho Legislature, few people, especially those who were accused of teaching it, had never heard of it, had no idea what it was, and had to rush to the web to learn more about it. Educators made it clear that CRT was not being taught in their schools, which are governed by locally elected trustees.

But that didn’t stop the Idaho Legislature from passing a bill that banned the teaching of CRT and cutting $2.5 million from the budgets of Boise State University, the University of Idaho, and Idaho State University to punish them for having diversity and inclusion programs in their schools.

It also didn’t stop the Idaho Freedom Foundation and out-of-state groups like Yes. Every Kid, which is also funded by out-of-state billionaires, and others from trying to pass a bill that would start Idaho down the road of privatizing its schools.

It also didn’t stop Lt. Governor Janice McGeachin from forming a so-called “task force” to investigate the teaching of CRT in Idaho. After weeks of investigating, all the task force achieved was helping McGeachin overspend her budget. The controversy also caused the State Board of Education to spend precious time and money to hire an independent firm to see if CRT was being taught. Not surprisingly, the study found that it was not being taught.

But the facts came too late to help the educators. Rufo and the Idaho Freedom Foundation had succeeded in costing our universities money, seeding doubts about our public schools and higher education institutions, and aiding those wealthy out-of-state interest groups that want to privatize our schools.

During the 2022 Legislature it was the librarians’ turn to get caught in the bullseye of the Idaho Freedom Foundation. They went after librarians because, supposedly, they were making pornographic books available to kids all over Idaho. This must have come as a huge shock to librarians whose idea of a wild night on the town is snuggling up with a good book at home.

The House passed a bill that would put librarians in jail for a year and face a big fine if a child somehow left the library with one of these alleged “harmful” books. Luckily, the bill died in the Senate, but not before the Legislature killed the budget for the Idaho Library Commission because the librarians had the temerity to oppose their bill. Then the lawmakers cut the commissions funding by $3.5 million, including money that would have provided tele-health services to rural Idahoans.

But Rufo and the minions like the Idaho Freedom Foundation that do the dirty work of those out-of-state interests that want to privatize our schools are not done.

After the Legislature adjourned, IFF’s President Wayne Hoffman crowed to his supporters: “Perhaps our biggest victory this session was persuading lawmakers to strip $3.5 million in federal funds from the budget for Idaho Commission for Libraries. By exposing the obscene material the ICFL was distributing, we persuaded lawmakers to pull that funding.”

Hoffman also made it plain he isn’t done. Writing to his supporters, he promised: “The legislative session is now at a close, but we’re still hard at work. This summer, the IFF will be conducting intensive research on K-12 education, obscenities in public libraries, and the college and university accreditation process, which demands “social justice.”

Rufo isn’t done either. In January, reported that Rufo tweeted that his new goal is to "bait the Left into opposing [curriculum] 'transparency,'" to trigger suspicions that public schools have something to hide.

Earlier this month Rufo renewed his declaration of war on America’s public education system at Hillsdale College. He called his speech: “Laying Siege to the Institutions.” Once again, he argued that “Marxist” ideology had infiltrated the entire K-12 U.S. education system, higher education, and even iconic American companies like American Express and the Walt Disney Company.

So, what does Rufo mean by “laying siege” to our institutions? He explained to the Hillsdale College audience that there was a three-step strategy to his attack.

The first step was to create a “narrative and symbolic war” against these educational institutions and businesses through the use of language. “You have to be very aggressive. You have to fight on terms you define. You have to create your own frame, your own language, and you have to be ruthless and brutal in pursuit of something good.”

“The second (step) is to attack the credibility of the institutions,” Rufo said. He added, “I think you want to create the conditions for fundamental, structural change, to appropriate some language. For example, school choice. To get universal school choice, you really need to operate from a premise of universal public school distrust. Because in order for people to take significant action, they have to feel like they have something at stake.”

By doing this, he said, people will get mobilized to demand change. He bragged about how the people assaulted their local school boards over CRT in the past 18 months. He even suggested that his followers take over local school boards, as they did with some success in Idaho and other states last year.

“If you put your name on the ballot in the median school district in the United States and you say, ‘I’m the anti-critical race theory candidate, I’m going to get our education system back to the basics of reading, writing, math, et cetera, prioritizing excellence over ideology, you’re going to win in many places, at that 70-30 (percent) level, I think reflecting overwhelming public support.”

The third step, he said, is to create “alternatives” to public K-12 education. For Rufo that alternative is school choice. He wants to take money away from the public schools and give it to parents so they can send their children to private schools and private religious schools. This, he said, would break what he called the “monopoly” public schools have on education.

In essence, Rufo is laying out the playbook we see advocates of privatizing education using across America and in Idaho. Create a controversy by using scary and outlandish language such as critical race theory or “Marxist” ideology infiltrating the 14,000 school districts in America, including the 160 in Idaho. Get the public and lawmakers so worked up over the issue that they confront and attack the local educators and higher education institutions. Then come in with the “solution,” which is to privatize education under the euphonism of “school choice.”

The problem with conflict entrepreneurs like Rufo and the Idaho Freedom Foundation and their fellow travelers is they aren’t just hurting public servants like teachers and librarians – they are hurting our democracy.

The other danger is that these conflict entrepreneurs have convinced too many of our citizens – just as Rufo bragged - that these issues are real. This is dangerous because when citizens lose confidence in their public institutions it undermines democracy and leads to chaos, which we have already seen at North Idaho College in Coeur d’Alene and school boards across our state.

Here’s the bottom line:

If you believe what Rufo and the Idaho Freedom Foundation say is true about CRT or any of these other scary “isms” they freely toss about, then you have to believe that “Marxist” and “Socialist” ideas are actively being taught in schools across Idaho – from Bonners Ferry, to St. Maries, to Grangeville, to Idaho City, to Payette, to Fairfield, to Oakley, to Challis, to St. Anthony and to Soda Springs, and all points in between.

And if Idahoans believe their locally elected school trustees, the superintendent who belongs to their Rotary Club and their 3rd Grade teacher who attends their church are “Marxist” and “Socialist” leftovers from the 1960s and are spreading this thinking in their schools, then I have a bridge in Brooklyn they can buy.

But I think Idahoans are smarter than that once they stop and use their legendary common sense. They know that their public schools are the heart, soul and fabric that holds their communities together. They know that privatizing education won’t serve their communities worth a darn. They know that educators are their friends, neighbors and oftentimes the relative sharing a Thanksgiving meal with them. They know that Idaho’s educators are more connected to their community than an obscure freelancer from Gig Harbor who couldn’t find their town on a map if he tried.

Stephen Hartgen

A writer familiar to those who frequent this site, and have read our books, has passed.

Stephen Hartgen, 77, a prominent figure in Magic Valley politics and journalism for more than three decades, died at Twin Falls on December 31.

A native of Maine, he was a university professor before moving into journalism in newspapers, including at Minneapolis, Minnesota, Anniston, Alabama and Casper, Wyoming. In the early 80s he was named managing editor at the Twin Falls Times News, and remained at the paper for many years first in that position and later as publisher.

After retiring from the paper in 2004 he was elected in 2008to the Idaho House, serving there for five terms before retiring. (He was succeeded in the House by his wife, Linda Wright Hartgen, who this year is planning to leave that seat and run for an open seat in the Idaho Senate.)

He also was a member of numerous state and local organizations, including the Idaho Capitol Commission.

He also was the author of three books published by Ridenbaugh Press: Journey West: A Memoir of Journalism and Politics, and two books about the Magic Valley, Tradition and Progress: Southern Idaho’s Growth Since 1990, and Spirit of Place: Southern Idaho Values Across Generations.

Hartgen also in recent years has been a public affairs columnist, published among other places at, where his columns have been appearing most Sundays - including last Sunday.

- Randy Stapilus

Who are they?


A commentary from Darrell Kerby, from Bonners Ferry, Idaho.

Who are these people? Where did they come from?  

Now, most of our new citizens that have immigrated to our beautiful North Idaho are not the subject of this writing. Only a few of them who believe and have self-anointed themselves as our saviors are being discussed here.
When did they decide to take advantage of our friendly accepting nature to exploit and take over and politically control where we were born and live, our beautiful North Idaho? North Idaho’s accepting nature has been turned against us by these new people who have run for political office as Republicans, were voted into office because of our own complacency of either not voting or not taking the time to learn who they were.

Today these recently minted elected officials now believe they have garnered enough power to begin to expel locally grown and raised Republicans from our party by calling them names like non-Republicans or RINOs (Republicans in name only). Well, it’s high time those of us who have buried loved ones for generations in the hallowed soil of our home ground to stand up and make our statement that enough is enough.

Recently a group of these newly minted radicals who are trying to co-opt our party have come out to smear one of our own locally home grown veteran heroes who we elected as our state senator, Jim Woodward. His alleged crime? Using his brain when he votes. He actually doesn’t listen to the organization that is being used as a shadow government known as the Idaho Freedom Foundation, a Boise-based lobbying organization that has set itself up as judge and jury for anyone who has the audacity to vote against their radical will.

Our Republican Party has never been against public education, has never been about preventing efficiency in emergency response to wide-spread disasters in our state. Our Republican Party has never been racist, or tolerant of radical white supremacy groups, or individuals who advocate violence against our state and nation. It’s time to call them out for who they are.

Let’s look at who Jim Woodward really is. A decorated veteran who was born and raised in Bonners Ferry. He attended and graduated from the University of Idaho, willingly put his life on the line to protect our freedoms by serving in our Armed forces and due to his high IQ and intellectual intelligence raised to the level of being entrusted with the most powerful weapon that has ever existed, a Trident submarine. Jim literally was trusted with the keys to launching nuclear weapons. Today, he started and owns a successful construction business home based in Bonner County where he also is raising his family. Jim’s ability to reason and understand complex issues has placed him as one of Idaho’s most respected leaders.
His personal adherence to our local North Idaho moral values and his proven strength of functioning under extreme stress has allowed him to stand up to the bullying tactics used by the “Idaho Freedom Foundation.“

It is time for all of us who value the lifestyle and freedoms that we all grew up with here in North Idaho to reject the agenda of these radical newcomers. While we are naturally accepting and willing to provide people a lot of slack when they arrive, we are also willing to tighten that slack when we see it clearly abused.

Darrell Kerby is a former mayor of Bonners Ferry.

Preserving the constitution


From a press release from one of our regular columnists, Jim Jones.

The Idaho Constitution is under attack...from Idaho legislators.

A group of Idaho lawyers has formed to protect the Idaho Constitution from repeated attacks by the Idaho Legislature. Former Idaho Attorney General Jim Jones said today that the group, the Committee to Protect and Preserve the Idaho Constitution, will engage in a variety of activities to prevent the Legislature from subverting constitutional rights of the people, as well as constitutional checks and balances.

“Legislators have shown an alarming disrespect for our State Constitution this session and it is incumbent upon members of the legal profession to call them to account,” Jones said. “The mission of our group is to blow the whistle on legislation that threatens the integrity of the Idaho Constitution and to use every legal avenue to oppose it.”

“We can’t and won’t stand idly by while the Legislature tries to deconstruct the remarkable Constitution that the Constitutional Convention delegates carefully crafted back in 1889 to guide our State into the future. It is fitting and appropriate that we announce our defense of this treasured document during the same week that Idahoans celebrate Idaho Day on March 4.”

“Senate Bill 1110 would make it almost impossible for the people to put an initiative or referendum on the election ballot. The bill is a direct attack on the bedrock principle of our Constitution--the right of the people to control their government. Article One states that the people, “have the right to alter, reform or abolish” the State government “whenever they may deem it necessary.” The Legislature would effectively take that right away from the people, if it passes Senate Bill 1110.”

Several bills would infringe on the Attorney General’s constitutional power to handle the legal business of State agencies. When Idaho’s Constitution was being fashioned in 1889, the delegates clearly understood and agreed that the Attorney General would be the sole source of legal services for the State. Two bills, Senate Bill 1090 and House Bill 118, would prohibit the Attorney General from representing the Idaho Department of Lands. House Bill 101 would allow State agencies to hire their own attorneys. “These bills are unconstitutional, as the Attorney General has advised the Legislature, but that advice has been rejected.”

House Bill 135 proposes to limit the Governor’s ability to respond to an emergency or disaster. The Attorney General has advised that some provisions are not constitutionally permissible, but the bill passed the House anyway.

“It is difficult to understand why legislators completely disregard sound advice from our elected Attorney General and persist in attacking the constitutional framework of our government. They have done so in a number of instances in the past, causing the State to pay millions of dollars to attorneys who have successfully challenged unconstitutional legislation enacted by the Legislature.”

The Legislature established the Constitutional Defense Fund in 1995 to defend the State’s sovereignty, which has included defending legislation that offends the U.S. Constitution. Thus far, the State has paid out over $3 million to attorneys who have successfully challenged the constitutionality of State laws, many of which were enacted despite warnings from Attorney General Lawrence Wasden.

“The Legislature’s Constitutional Defense Fund has primarily paid out funds to groups challenging Idaho laws in federal court for violation of the U.S. Constitution, but we intend to focus on protecting our State Constitution in State courts. If those actions are successful, we will seek fees from the Constitutional Defense Fund.”

Founding members of the Committee include former Idaho Attorney General Tony Park, former Deputy Attorney General Clive Strong, and long-time private practitioner, Bruce Smith, a senior lawyer of the Idaho Bar.

Park said, “In the coming days, we will be gathering legal talent from around the State to protect Idaho’s constitutional form of government. There is a good deal of concern in the legal community about the impact of these unconstitutional measures on the integrity of our government. If litigation becomes necessary, we intend to rely on volunteer lawyers who will donate their services to the benefit of the Constitution.”

Strong noted, “The Office of Idaho Attorney General serves an essential role in ensuring elected officials are given the legal advice they need to hear, not what they want to hear. The importance of preserving the role of the Attorney General is evident from constitutionally suspect legislation pending in the Idaho Legislature.”

Smith expressed concern that the bills designed to usurp the Attorney General’s constitutional powers are not only violative of the separation of powers, but would dramatically increase the State’s outlays for legal services. “The sponsors of House Bill 118 could not even estimate how high the cost would go.”

Call for special counsel


A guest opinion by Everett Wohlers, a former deputy secretary of state in Idaho.

In a display of spinelessness, 43 Republican Senators on Saturday February 13 voted to give Donald Trump a pass for his brazen attack on the Constitutional order in the form of his attacks on the validity of the election and his incitement of the insurrection against the Capitol and the counting of the electoral vote by Congress.

Most of those Senators, including both of Idaho’s, explained their votes to acquit by invoking the decisively debunked argument that the Constitution does not permit impeachment and conviction of a President after he leaves office. None of the Republican Senators who voted to acquit argued that the ex-President was not guilty of the offense with which he was charged. Minority Leader Mitch McConnell even got up and agreed in some detail with the House managers that Trump was guilty as charged.

So we are left with an ex-President who remains eligible to hold future office, including the Presidency, despite having violated his oath of office in the most egregious way possible – by attacking the most fundamental feature of a functioning democracy, the peaceful transfer of power to the choice of the people. What must be done about it, and by whom?

The nature of the offenses committed by the ex-President and his many co-conspirators is criminal under federal law. To not pursue justice under those laws would in effect say to the world that powerful people are above the law. So action under the relevant federal laws must be pursued, but by whom? The US Attorney for the District of Columbia could take on such a case, since that is the venue where the core of the criminality occurred. But there were many related criminal acts that occurred in remote swing states such as Arizona, Pennsylvania and Georgia, so the US Attorney for DC would face logistical and jurisdictional problems.

Alternatively, prosecutions could be divided among the US Attorneys for the venues of different criminal acts, but that would create a disjointed effort, with possible conflicts. Another possibility is that the new Attorney General, presumably Merrick Garland, could bring the action, but that could be seen as a partisan effort by many, putting the legitimacy of the outcome in doubt in many eyes.

There is a better option that does not suffer from those problems. After Merrick Garland is confirmed as Attorney General, he should appoint a Special Counsel to investigate and appropriately charge those who committed federal criminal offenses in connection with the ex-President’s attempts to overturn the results of the election. The Special Counsel’s remit should be broad so that it can charge any crime by any person that was committed in connection with the effort to overturn the election results, to include the insurrection against the Capitol and the electoral vote count.

While the scope of the Special Counsel’s investigation and prosecutorial actions would not be limited to them, there are three relevant laws under which charges could be brought that come to mind immediately.

First, 18 U.S. Code Section 595 makes it a crime for any government official to use “his official authority for the purpose of interfering with, or affecting, the . . . election of any candidate for the office of President. . . .” The efforts of Trump and his surrogates to intimidate election officials in the swing states such as Michigan, Arizona, Pennsylvania and particularly Georgia to “find” votes appear to clearly fall within the purview of this law.

Second, 18 U.S. Code Section 2383 makes it a crime to incite “insurrection against the authority of the United States or the laws thereof, or [to give] aid or comfort thereto . . . .” The Senate impeachment trial established that Trump and a number of his surrogates did exactly that in inciting the attack on the Capitol and Congress’ count of electoral votes.

Third, 18 U.S. Code Section 2384 makes it a crime for “two or more persons . . . [to] conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . . .” The clear evidence from the impeachment trial shows that Trump conspired with a number of others, including Giuliani, Flynn, Kremer, Jones, to cause the mob to disrupt the count of electoral votes that is required by the Constitution, and that the mob’ actions did in fact “hinder or delay” completion of the count.

If no person is above the law, these and any other relevant crimes must be charged and prosecuted to the full extent of the law, regardless of political considerations. One of the new Attorney General’s first actions upon confirmation should be the appointment of a Special Counsel with a broad remit to investigate and prosecute all of those who have committed federal crimes in connection with the ex-President’s attempts to overturn the election result, to include the ex-President and his co-conspirators.

The case for conviction


A guest opinion by Everett Wohlers, a former deputy secretary of state in Idaho.

Senate Republicans have over recent days argued that the Constitution does not permit the impeachment and conviction of a President after he leaves office. On January 26, 45 Republican Senators voted not to proceed to trial on the impeachment voted out by the House, invoking that argument, i.e. that the Constitution precludes conviction of an impeached former President. Since they lost that vote, the Republican Senators have been using that argument to justify their anticipated votes to acquit former President Trump in the impeachment trial this week. That argument is plain and simple poppycock. There is no need for complicated legal interpretation of the Constitution in this respect. Any literate person can figure it out.

Debunking the “Unconstitutional” Argument

The language of Article I, Section 3, paragraph 7 of the Constitution is clear on its face.  It says, "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States. . . ." [Emphasis added.] That is, it allows imposition of either or both of the remedies (removal and disqualification), so long as no further remedy is imposed.  To impose only one of the remedies authorized by paragraph 7 does not extend further than them, but less, which is not prohibited.  Since those limitations in paragraph 7 are the only limitations on paragraph 6's grant to the Senate of “the sole power to try all impeachments,” it is clear that the Senate can try an impeachment for the sole purpose of disqualification of the impeached person from ever again holding federal office.  The position of the 45 Senate Republicans is, then, totally contrary to the clear language of the Constitution.

The Substantive Case for Conviction

The likely reason that the Republican Senators are relying on that specious argument is that the substantive case for conviction is so clear that a vote to acquit would be a clear violation of their duty to the Constitution, while they fear the consequences to them in their next election of voting to convict the object of fealty of their voting base. The bases for the substantive case for conviction are succinctly set out in the Article of Impeachment that was delivered to the Senate on January 26.

The first two sentences of the Article of Impeachment set out the legal standards for impeachment and conviction of the former President. The first sentence cites the standard of Article II, Section 4 of the Constitution, which is commission of “high crimes and misdemeanors” by the subject of the impeachment. The second sentence cites Section 3 of the 14th Amendment to the Constitution, which prohibits the holding of federal or state office by any person who has “taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States [and who has] engaged in insurrection or rebellion against the same . . . .” They are examined separately as follows.

--High Crimes and Misdemeanors

As to the commission of “high crimes and misdemeanors, there are at least two relevant crimes in federal law which the former President could be found to have committed. The first of those is set out in 18 U.S. Code Section 2383, which says in relevant part, “Whoever incites . . . insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto . . . .” The second crime is set out in 18 U.S. Code Section 2384, which says in relevant part, “If two or more persons . . . conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . . .” The facts establishing the former President’s guilt under both of the cited sections were witnessed in real time on electronic media by the whole country.

With respect to Section 2383, then-President Trump engaged in a number of actions, some of them repeated many times, that incited the mob to storm the Capitol to stop the final count of electoral votes. A few of the more significant of those actions were: (1) Near constant public events at which he told his followers that he had really won the election, but that it had been stolen from him by massive fraud, and that they must “stop the steal;” (2) Having his legal team file some 60 meritless (and quickly dismissed) legal actions in courts charging election fraud in swing states won by Joe Biden; (3) Issuing a public call-out at an event on December 19 for his followers to come to Washington, DC, on January 6, the day of Congress’ formal count of the electoral votes, telling his followers to ““Be there, will be wild!” – a message that he reinforced in tweets on at least December 27 and 30, and on January 1; and (4) Immediately following speeches by his acolytes such as Rudy Giuliani and Donald Trump, Jr., that urged the assembled crowd on the Ellipse on January 6 to engage in “war” to stop the count of electoral votes, Trump gave an incendiary speech in which he: recounted that he had won the election, but that it was being stolen from him; repeatedly urged his agitated followers to go to the Capitol where Congress was engaged in counting the electoral votes; and told them to “fight like Hell” and to “take back our country.”

If the then-President’s intent was not sufficiently clear from his speech, it was made so after the mob invaded the Capitol, when he pointedly ignored multiple frantic calls from members of Congress pleading for him to call off the mob before it killed them, and when he refused to mobilize the DC National Guard until evening. The violent insurrection was clearly predictable and connected to then-President Trump’s assemblage and incitement of the mob that he knew was prepared to do violence to the Capitol and members of Congress, and it was further enabled by his refusal to quickly call off the mob or to call out the National Guard. He was, therefore, guilty of the crime set out in Section 2383.

With respect to Section 2384, it is clear that then-President Trump did not plan or act alone in his attempt to stay in office by preventing completion of the formalities of election of Joe Biden by Congress’ count of electoral votes. In the period between the November election and the inauguration of President Biden, then-President Trump actively plotted and worked with a wide variety of acolytes to find a way to prevent the transfer of power to the President-elect. Those people included, among many others, Rudy Giuliani, Michael Flynn, Amy Kremer, Mike Lindell, Sidney Powell, Alex Jones, Charlie Kirk, Donald Trump, Jr. and Kimberly Guilfoyle. The accounts of their meetings and planning are too voluminous to cover here, but are available in many public sources. Further, on January 6, several of the speakers that preceded then-President Trump on the podium urged the mob on with clear allusions to using violent means to stop the count of electoral votes, including Rudy Giuliani and Donald Trump, Jr.

The planning and coordination among these people and Donald Trump by definition constituted conspiracy. And their objective was to prevent Congress from completing its legal duty to count the electoral votes. That is, they conspired to “by force . . . prevent, hinder, or delay the execution of [a] law of the United States.” Then-President Trump and his co-conspirators were clearly guilty of violation of Section 2384.

-- Engagement in Insurrection

Donald Trump took his oath of office as President on January 20, 2017. The presidency is a “federal office.” The oath of office includes swearing to “preserve, protect and defend the Constitution of the United States.” The discussion above of the-President Trump’s actions in the context of 18 U.S. Code Section 2383 clearly establishes that he “engaged in insurrection.” Therefore, he is barred by Section 3 of the 14th Amendment from ever again holding any federal office.

It is clear that Article I, Section 3, paragraph 7 of the Constitution permits the impeachment and conviction of a former President for the purpose of barring him from future federal office, so there is no procedural reason for the Senate not to convict Donald Trump. It is also clear, based on his violations of 18 United States Code Sections 2383 and 2384, that he should be convicted under the provisions of Article II, Section 4 of the Constitution, relating to “high crimes and misdemeanors.” And finally, it is clear that he should be forever barred from holding any federal office, as provided both by Article I, Section 3, paragraph 7 of the Constitution and by Section 3 of the 14th Amendment to the Constitution.