CL & L: Major Legal Controversies - Winter 2021
Leora Harpaz
Link to Materials for this class: http://www.lharpaz.com/ContinuingEd/CLL/majorlegalcontroversies2021.html
Class Description: Major Legal Controversies: Past, Present, and
Future
The law develops over time with past decisions serving as
precedent to influence the outcome of current controversies. This
course will examine current legal controversies as well as ones we
can anticipate will confront the courts in the future. An
important focus of this examination will be on how the outcome of
these cases is likely to be shaped by Supreme Court precedent
which the current Supreme Court will either adhere to,
distinguish, or overrule.
Thu 10:30-11:45a • Jan
7, 14, 21, 28, Feb 4, 11, 18, 25 • 8
sessions
Please use the following link if you
want to make suggestions for topics you would like covered in
upcoming classes: http://www.lharpaz.com/ContinuingEd/CLL/suggestions/
Class 8 - Feb. 25
18 U.S. Code § 2383 - Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any
rebellion or insurrection against the authority of the United
States or the laws thereof, or gives aid or comfort thereto,
shall be fined under this title or imprisoned not more than
ten years, or both; and shall be incapable of holding any
office under the United States.
18 U.S. Code § 2384 - Seditious conspiracy
If two or more persons in any State or Territory, or in any
place subject to the jurisdiction of the United States,
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, they shall each be fined under this title or
imprisoned not more than twenty years, or both.
18 U.S. Code § 1752 - Restricted building or grounds
(a) Whoever—
(1) knowingly enters or remains in any restricted building or
grounds without lawful authority to do so;
(2) knowingly, and with intent to impede or disrupt the
orderly conduct of Government business or official functions,
engages in disorderly or disruptive conduct in, or within such
proximity to, any restricted building or grounds when, or so
that, such conduct, in fact, impedes or disrupts the orderly
conduct of Government business or official functions;
(3) knowingly, and with the intent to impede or disrupt the
orderly conduct of Government business or official functions,
obstructs or impedes ingress or egress to or from any
restricted building or grounds; or
(4) knowingly engages in any act of physical violence against
any person or property in any restricted building or grounds;
(5) knowingly and willfully operates an unmanned aircraft
system with the intent to knowingly and willfully direct or
otherwise cause such unmanned aircraft system to enter or
operate within or above a restricted building or grounds;
or attempts or conspires to do so, shall be punished as
provided in subsection (b).
(b) The punishment for a violation of subsection (a) is—
(1) a fine under this title or imprisonment for not more than 10
years, or both, if—
(A) the person, during and in relation to the offense, uses or
carries a deadly or dangerous weapon or firearm; or
(B) the offense results in significant bodily injury as defined
by section 2118(e)(3); and
(2) a fine under this title or imprisonment for not more than
one year, or both, in any other case.
(c) In this section—
(1) the term “restricted buildings or grounds” means any
posted, cordoned off, or otherwise restricted area—
(A) of the White House or its grounds, or the Vice President’s
official residence or its grounds;
(B) of a building or grounds where the President or other
person protected by the Secret Service is or will be
temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with
an event designated as a special event of national
significance; and
(2) the term “other person protected by the Secret Service”
means any person whom the United States Secret Service is
authorized to protect under section 3056 of this title or by
Presidential memorandum, when such person has not declined
such protection.
40 U.S. Code § 5104 - Unlawful activities
(a) Definitions.—In this section—
(1) Act of physical violence.—The term “act of physical
violence” means any act involving—
(A) an assault or other infliction or threat of infliction of
death or bodily harm on an individual; or
(B) damage to, or destruction of, real or personal property.
(2) Dangerous weapon.—The term “dangerous weapon” includes—
(A) all articles enumerated in section 14(a) of the Act of
July 8, 1932 (ch. 465, 47 Stat. 654); and
(B) a device designed to expel or hurl a projectile capable of
causing injury to individuals or property, a dagger, a dirk, a
stiletto, and a knife having a blade over three inches in
length.
(3) Explosives.—
The term “explosives” has the meaning given that term in
section 841(d) of title 18.
(4) Firearm.—
The term “firearm” has the meaning given that term in section
921(3) of title 18.
(b) Obstruction of Roads.—
A person may not occupy the roads in the United States Capitol
Grounds in a manner that obstructs or hinders their proper use,
or use the roads in the area of the Grounds, south of
Constitution Avenue and B Street and north of Independence
Avenue and B Street, to convey goods or merchandise, except to
or from the United States Capitol on Federal Government service.
(c) Sale of Articles, Display of Signs, and Solicitations.—A
person may not carry out any of the following activities in the
Grounds:
(1) offer or expose any article for sale.
(2) display a sign, placard, or other form of advertisement.
(3) solicit fares, alms, subscriptions, or contributions.
(d) Injuries to Property.—
A person may not step or climb on, remove, or in any way injure
any statue, seat, wall, fountain, or other erection or
architectural feature, or any tree, shrub, plant, or turf, in
the Grounds.
(e) Capitol Grounds and Buildings Security.—
(1) Firearms, dangerous weapons, explosives, or incendiary
devices.—An individual or group of individuals—
(A) except as authorized by regulations prescribed by the
Capitol Police Board—
(i) may not carry on or have readily accessible to any
individual on the Grounds or in any of the Capitol Buildings a
firearm, a dangerous weapon, explosives, or an incendiary
device;
(ii) may not discharge a firearm or explosives, use a
dangerous weapon, or ignite an incendiary device, on the
Grounds or in any of the Capitol Buildings; or
(iii) may not transport on the Grounds or in any of the
Capitol Buildings explosives or an incendiary device; or
(B) may not knowingly, with force and violence, enter or
remain on the floor of either House of Congress.
(2) Violent entry and disorderly conduct.—An individual or
group of individuals may not willfully and knowingly—
(A) enter or remain on the floor of either House of Congress
or in any cloakroom or lobby adjacent to that floor, in the
Rayburn Room of the House of Representatives, or in the Marble
Room of the Senate, unless authorized to do so pursuant to
rules adopted, or an authorization given, by that House;
(B) enter or remain in the gallery of either House of Congress
in violation of rules governing admission to the gallery
adopted by that House or pursuant to an authorization given by
that House;
(C) with the intent to disrupt the orderly conduct of official
business, enter or remain in a room in any of the Capitol
Buildings set aside or designated for the use of—
(i) either House of Congress or a Member, committee, officer,
or employee of Congress, or either House of Congress; or
(ii) the Library of Congress;
(D) utter loud, threatening, or abusive language, or engage in
disorderly or disruptive conduct, at any place in the Grounds
or in any of the Capitol Buildings with the intent to impede,
disrupt, or disturb the orderly conduct of a session of
Congress or either House of Congress, or the orderly conduct
in that building of a hearing before, or any deliberations of,
a committee of Congress or either House of Congress;
(E) obstruct, or impede passage through or within, the Grounds
or any of the Capitol Buildings;
(F) engage in an act of physical violence in the Grounds or
any of the Capitol Buildings; or
(G) parade, demonstrate, or picket in any of the Capitol
Buildings.
(3) Exemption of government officials.—This subsection does
not prohibit any act performed in the lawful discharge of
official duties by—
(A) a Member of Congress;
(B) an employee of a Member of Congress;
(C) an officer or employee of Congress or a committee of
Congress; or
(D) an officer or employee of either House of Congress or a
committee of that House.
(f) Parades, Assemblages, and Display of Flags.—Except as
provided in section 5106 of this title, a person may not—
(1) parade, stand, or move in processions or assemblages in
the Grounds; or
(2) display in the Grounds a flag, banner, or device designed
or adapted to bring into public notice a party, organization,
or movement.
18
U.S. Code § 231 - Civil disorders
(3) Whoever commits or attempts to commit any act to
obstruct, impede, or interfere with any fireman or law
enforcement officer lawfully engaged in the lawful
performance of his official duties incident to and
during the commission of a civil disorder which in any
way or degree obstructs, delays, or adversely affects commerce or the movement of any
article or commodity in commerce or the conduct or performance of
any federally protected function—
Shall be fined under this title or imprisoned not more
than five years, or both.
Class 7 - Feb. 18
Art. I, Sec. 5:
Each House shall keep a journal of its proceedings, and from
time to time publish the same, excepting such parts as may in
their judgment require secrecy; and the yeas and nays of the
members of either House on any question shall, at the desire
of one fifth of those present, be entered on the journal.
NAACP complaint in Thompson v. Trump - https://naacp.org/wp-content/uploads/2021/02/Thompson-v.-Trump-Complaint-FILED.pdf
First two paragraphs of the complaint:
1. On and before January 6, 2021, the defendants, Donald J.
Trump, Rudolph W. Giuliani, Proud Boys and Oath Keepers,
conspired to incite an assembled crowd to march upon and enter
the Capitol of the United States for the common purpose of
disrupting, by the use of force, intimidation and threat, the
approval by Congress of the count of votes cast by members of
the Electoral College as required by Article II, Section 1 of
the United States Constitution. In doing so, the Defendants
each intended to prevent, and ultimately delayed members of
Congress from discharging their duty commanded by the United
States Constitution to approve the results of the Electoral
College in order to elect the next President and Vice
President of the United States.
2. Plaintiff, the Honorable Bennie G. Thompson, Member of the
United States House of Representatives, brings this action
against the Defendants for conspiring to prevent him and other
members of Congress from discharging these official duties, in
violation of 42 U.S.C. § 1985(3). . . .”
42 U.S. Code § 1985. Conspiracy
to interfere with civil rights:
(1) Preventing officer from performing duties
If two or more persons in any State or Territory
conspire to prevent, by force, intimidation, or threat,
any person from accepting or holding any office, trust,
or place of confidence under the United States, or from
discharging any duties thereof; or to induce by like
means any officer of the United States to leave any
State, district, or place, where his duties as an
officer are required to be performed, or to injure him
in his person or property on account of his lawful
discharge of the duties of his office, or while engaged
in the lawful discharge thereof, or to injure his
property so as to molest, interrupt, hinder, or impede
him in the discharge of his official duties;
42 U.S. Code § 1986. Action for neglect to prevent:
Every person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in section
1985 of this title, are about to be committed, and
having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be liable to the
party injured, or his legal representatives, for all
damages caused by such wrongful act, which such person
by reasonable diligence could have prevented; and such
damages may be recovered in an action on the case; and
any number of persons guilty of such wrongful neglect or
refusal may be joined as defendants in the action; and
if the death of any party be caused by any such wrongful
act and neglect, the legal representatives of the
deceased shall have such action therefor, and may
recover not exceeding $5,000 damages therein, for the
benefit of the widow of the deceased, if there be one,
and if there be no widow, then for the benefit of the
next of kin of the deceased. But no action under the
provisions of this section shall be sustained which is
not commenced within one year after the cause of action
has accrued.
Class 6 - Feb. 11
Constitutional
Provisions Concerning Impeachment
Art I, Section 2:
The House of Representatives shall choose their Speaker
and other Officers; and shall have the sole Power of
Impeachment.
Article II, Section 4:
The President, Vice President and all civil Officers of
the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.
Article I, Section 3, Clause 6:
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be
on Oath or Affirmation. When the President of the United
States is tried, the Chief Justice shall preside: And no
Person shall be convicted without the Concurrence of two
thirds of the Members present.
Article I, Section 3, Clause 7:
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: but the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.
Section
230 of the Communications Decency Act of
1996
47 U.S.C. § 230 - Protection for Private
Blocking and Screening of Offensive Material
(a) Findings
The
Congress finds the following:
(1)
The rapidly developing array of Internet and other
interactive computer services available to
individual Americans represent an extraordinary
advance in the availability of educational and
informational resources to our citizens.
(2)
These services offer users a great degree of control
over the information that they receive, as well as
the potential for even greater control in the future
as technology develops.
(3)
The Internet and other interactive computer services
offer a forum for a true diversity of political
discourse, unique opportunities for cultural
development, and myriad avenues for intellectual
activity.
(4)
The Internet and other interactive computer services
have flourished, to the benefit of all Americans,
with a minimum of government regulation.
(5)
Increasingly Americans are relying on interactive
media for a variety of political, educational,
cultural, and entertainment services.
(b) Policy
It is
the policy of the United States
(1)
to promote the continued development of the Internet
and other interactive computer services and other
interactive media;
(2)
to preserve the vibrant and competitive free market
that presently exists for the Internet and other
interactive computer services, unfettered by Federal
or State regulation;
(3)
to encourage the development of technologies which
maximize user control over what information is
received by individuals, families, and schools who
use the Internet and other interactive computer
services;
(4)
to remove disincentives for the development and
utilization of blocking and filtering technologies
that empower parents to restrict their children's
access to objectionable or inappropriate online
material; and
(5)
to ensure vigorous enforcement of Federal criminal
laws to deter and punish trafficking in obscenity,
stalking, and harassment by means of computer.
(c) Protection for Good Samaritan blocking and
screening of offensive material
(1)
Treatment of publisher or speaker
No provider or user of an interactive computer
service shall be treated as the publisher or
speaker of any information provided by another
information content provider.
(2)
Civil liability
No provider or user of an interactive computer
service shall be held liable on account of
(A)
any action voluntarily taken in good faith to
restrict access to or availability of material
that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally
protected; or
(B)
any action taken to enable or make available to
information content providers or others the
technical means to restrict access to material
described in paragraph (1).{This reference to
paragraph (1) should probably be a reference to
paragraph (A).}
(d) Obligations of
interactive computer service
A
provider of interactive computer service shall, at
the time of entering an agreement with a customer
for the provision of interactive computer service
and in a manner deemed appropriate by the provider,
notify such customer that parental control
protections (such as computer hardware, software, or
filtering services) are commercially available that
may assist the customer in limiting access to
material that is harmful to minors. Such notice
shall identify, or provide the customer with access
to information identifying, current providers of
such protections.
(e) Effect on other laws
(1) No effect on criminal
law
Nothing in this section shall be construed to
impair the enforcement of section 223 or 231 of
this title, chapter 71 (relating to obscenity) or
110 (relating to sexual exploitation of children)
of title 18, or any other Federal criminal
statute.
(2)
No effect on intellectual property law
Nothing in this section shall be construed to
limit or expand any law pertaining to intellectual
property.
(3)
State law
Nothing in this section shall be construed to
prevent any State from enforcing any State law
that is consistent with this section. No cause of
action may be brought and no liability may be
imposed under any State or local law that is
inconsistent with this section.
(4)
No effect on communications privacy law
Nothing in this section shall be construed to
limit the application of the Electronic
Communications Privacy Act of 1986 or any of the
amendments made by such Act, or any similar State
law.
(5) No
effect on sex trafficking law
Nothing in this section (other than subsection
(c)(2)(A)) shall be construed to impair or limit—
(A) any claim in a civil action brought under
section 1595 of title 18, if the conduct
underlying the claim constitutes a violation of
section 1591 of that title;
(B) any charge in a criminal prosecution brought
under State law if the conduct underlying the
charge would constitute a violation of section
1591 of title 18; or
(C) any charge in a criminal prosecution brought
under State law if the conduct underlying the
charge would constitute a violation of section
2421A of title 18, and promotion or facilitation
of prostitution is illegal in the jurisdiction
where the defendant’s promotion or facilitation of
prostitution was targeted.
(f) Definitions
As
used in this section:
(1) Internet
The term Internet means the international computer
network of both Federal and non-Federal
interoperable packet switched data networks.
(2)
Interactive computer service
The term interactive computer service means any
information service, system, or access software
provider that provides or enables computer
access by multiple users to a computer server,
including specifically a service or system that
provides access to the Internet and such systems
operated or services offered by libraries or
educational institutions.
(3)
Information content provider
The term information content provider means any
person or entity that is responsible, in whole
or in part, for the creation or development of
information provided through the Internet or any
other interactive computer service.
(4) Access software
provider
The term access software provider means a provider
of software (including client or server software),
or enabling tools that do any one or more of the
following:
(A)
filter, screen, allow, or disallow content;
(B)
pick, choose, analyze, or digest content; or
(C)
transmit, receive, display, forward, cache,
search, subset, organize, reorganize, or translate
content.
Class
5 - Feb. 4
Impeachment:
Article I, Section 3, Clause 6:
The Senate shall have the sole Power to
try all Impeachments. When sitting for
that Purpose, they shall be on Oath or
Affirmation. When the President of the
United States is tried, the Chief
Justice shall preside: And no Person
shall be convicted without the
Concurrence of two thirds of the Members
present.
Article I, section 5:
Each House [of Congress] may determine
the Rules of its proceedings, punish its
members for disorderly behavior, and,
with the concurrence of two-thirds,
expel a member.
U.S. Constitution,
Article I, section 2, clause
2:
No
Person shall be a Representative who
shall not have attained to the age of
twenty five Years, and been seven Years
a Citizen of the United States, and who
shall not, when elected, be an
Inhabitant of that State in which he
shall be chosen.”
Class 4 - January 28
The Foreign Emoluments Clause (art. I, § 9, cl. 8):
[N]o Person holding any Office of Profit or Trust under [the
United States], shall, without the Consent of the Congress,
accept of any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince, or foreign State.
The Domestic Emoluments Clause (a.k.a. the Presidential
Emoluments Clause) (art. II, § 1, cl. 7):
The President shall, at stated Times, receive for his
Services, a Compensation which shall neither be increased nor
diminished during the Period for which he shall have been
elected, and he shall not receive within that Period any other
Emolument from the United States, or any of them.
Class 3 - January 21
The President's Pardon Power - Article Two, Section 2, Clause
1:
“he shall have Power to grant Reprieves and Pardons for
Offenses against the United States, except in Cases of
impeachment.”
Fourteenth
Amendment, Section 3:
No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President, or
hold any office, civil or military, under the United
States, or under any state, who, having previously taken
an oath, as a member of Congress, or as an officer of
the United States, or as a member of any State
legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies
thereof.
Class 2 - January 14
Fourteenth Amendment, Section 3:
No person shall be a Senator or Representative in Congress, or
elector of President and Vice-President, or hold any office,
civil or military, under the United States, or under any
state, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a
member of any State legislature, or as an executive or
judicial officer of any State, to support the Constitution of
the United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort to the
enemies thereof.
Impeachment Resolution
Resolution impeaching Donald John Trump, President of the United
States, for high crimes and misdemeanors.
Resolved, the Donald John Trump, President of the United States,
is impeached for high crimes and misdemeanors and that the
following article of impeachment be exhibited to the United
States Senate:
Article of impeachment exhibited by the House of Representatives
of the United States of America in the name of itself and of the
people of the United States of America, against Donald John
Trump, President of the United States of America, in maintenance
and support of its impeachment against him for high crimes and
misdemeanors.
ARTICLE 1: INCITEMENT OF INSURRECTION
The Constitution provides that the House of Representatives
"shall have the sole Power of Impeachment" and that the
President "shall be removed from Office on Impeachment, for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors." Further, section 3 of the 14th Amendment to
the Constitution prohibits any person who has "engaged in
insurrection or rebellion against" the United States from
"hold[ing] and office ... under the United States.' In
his conduct while President of the United States — and in
violation of his constitutional oath faithfully to execute the
office of President of the United States and, to the best of his
ability, preserve, provide, protect, and defend the Constitution
of the United States and in violation of his constitutional duty
to take care that the laws be faithfully executed — Donald John
Trump engaged in high Crimes and Misdemeanors by inciting
violence against the Government of the United States, in that:
On January 6, 2021, pursuant to the 12th Amendment to the
Constitution of the United States, the Vice President of the
United States, the House of Representatives, and the Senate met
at the United States Capitol for a Joint Session of Congress to
count the votes of the Electoral College. In the months
preceding the Joint Session, President Trump repeatedly issued
false statements asserting that the Presidential election
results were the product of widespread fraud and should not be
accepted by the American people or certified by State or Federal
officials. Shortly before the Joint Session commenced, President
Trump, addressed a crowd at the Ellipse in Washington, D.C.
There, he reiterated false claims that "we won this election,
and we won it by a landslide." He also willfully made statements
that, in context, encouraged — and foreseeably resulted in —
lawless action at the Capitol, such as: "if you don't fight like
hell you're not going to have a country anymore." Thus incited
by President Trump, members of the crowd he had addressed, in an
attempt to, among other objectives, interfere with the Joint
Session's solemn constitutional duty to certify the results of
the 2020 Presidential election, unlawfully breached and
vandalized the Capitol, injured and killed law enforcement
personnel, menaced Members of Congress, the Vice President, and
Congressional personnel, and engaged in other violent, deadly,
destructive and seditious acts.
President Trump's conduct on January 6, 2021, followed his prior
efforts to subvert and obstruct the certification of the results
of the 2020 Presidential election. Those prior efforts included
a phone call on January 2, 2021, during which President Trump
urged the secretary of state of Georgia, Brad Raffensperger, to
"find" enough votes to overturn the Georgia Presidential
election results and threatened Secretary Raffensperger if he
failed to do so.
In all this, President Trump gravely endangered the security of
the United States and its institutions of Government. He
threatened the integrity of the democratic system, interfered
with the peaceful transition of power, and imperiled a coequal
branch of Government. He thereby betrayed his trust as
President, to the manifest injury of the people of the United
States.
Wherefore, Donald John Trump, by such conduct, has
demonstrated that he will remain a threat to national
security, democracy, and the Constitution if allowed to remain
in office, and has acted in a manner grossly incompatible with
self-governance and the rule of law. Donald John Trump thus
warrants impeachment and trial, removal from office, and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
Constitutional Provisions Concerning Impeachment
Art I, Section 2:
The House of Representatives shall choose their Speaker and
other Officers; and shall have the sole Power of Impeachment.
Article II, Section 4:
The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
Article I, Section 3, Clause 6:
The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or
Affirmation. When the President of the United States is tried,
the Chief Justice shall preside: And no Person shall be
convicted without the Concurrence of two thirds of the Members
present.
Article I, Section 3, Clause 7:
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:
but the Party convicted shall nevertheless be liable and subject
to Indictment, Trial, Judgment and Punishment, according to Law.
25th Amendment Resolution
RESOLUTION calling on Vice President Michael R. Pence to convene
and mobilize the principal officers of the executive departments
of the Cabinet to activate section 4 of the 25th Amendment to
declare President Donald J. Trump incapable of executing the
duties of his office and to immediately exercise powers as
acting President.
Whereas on Wednesday, January 6, 2021, the day fixed by the
Constitution for the counting of electoral votes, Congress
experienced a massive violent invasion of the United States
Capitol and its complex by a dangerous insurrectionary mob which
smashed windows and used violent physical force and weapons to
overpower and outmaneuver the United States Capitol Police and
facilitated the illegal entry into the Capitol of hundreds, if
not thousands, of unauthorized persons (all of whom entered the
Capitol complex without going through metal detectors and other
security screening devices);
Whereas, the insurrectionary mob threatened the safety and lives
of the Vice President, the Speaker of the House, and the
President pro tempore of the Senate, the first three individuals
in the line of succession to the presidency, as the rioters were
recorded chanting ''Hang Mike Pence'' and ''Where's Nancy'' when
President Donald J. Trump tweeted to his supporters that ''Mike
Pence didn't have the courage to do what should have been done
to protect our country'' after the Capitol had been overrun and
the Vice President was in hiding;
Whereas the insurrectionary mob attacked law enforcement
officers, unleashed chaos and terror among Members and staffers
and their families, occupied the Senate Chamber and Speaker
Nancy Pelosi's office along with other leadership offices,
vandalized and pilfered government property, and succeeded in
interfering with the counting of electoral votes in the joint
session of Congress;
Whereas the insurrectionary mob's violent attacks on law
enforcement and invasion of the Capitol complex caused the
unprecedented disruption of the Electoral College count process
for a 4-hour period in both the House and the Senate, a
dangerous and destabilizing impairment of the peaceful transfer
of power that these insurrectionary riots were explicitly
designed to cause;
Whereas 5 Americans have died as a result of injuries or traumas
suffered during this violent attack on Congress and the Capitol,
including Capitol Police Officer Brian D. Sicknick and Ashli
Babbitt, Rosanne Boyland, Kevin Greeson, and Benjamin Phillips,
and more than 50 police officers were seriously injured,
including 15 officers who had to be hospitalized, by violent
assaults, and there could easily have been dozens or hundreds
more wounded and killed, a sentiment captured by Senator Lindsey
Graham, who observed that ''the mob could have blown the
building up. They could have killed us all'';
Whereas these insurrectionary protests were widely advertised
and broadly encouraged by President Donald J. Trump, who
repeatedly urged his millions of followers on Twitter and other
social media outlets to come to Washington on January 6 to
''Stop the Steal'' of the 2020 Presidential election and
promised his activist followers that the protest on the
Electoral College counting day would be ''wild'';
Whereas President-elect Joseph R. Biden won the 2020
Presidential election with more than 81 million votes and
defeated President Trump 306–232 in the Electoral College, a
margin pronounced to be a ''landslide'' by President Trump when
he won by the same Electoral College numbers in 2016, but
President Trump never accepted these election results as
legitimate and waged a protracted campaign of propaganda and
coercive pressure in the Federal and State courts, in the state
legislatures, with Secretaries of State, and in Congress to
nullify and overturn these results and replace them with
fraudulent and fabricated numbers;
Whereas President Trump made at least 3 attempts to intervene in
the lawful vote counting and certification process in Georgia
and to coerce officials there into fraudulently declaring him
the winner of the State's electoral votes, including calls to
Georgia Governor Brian Kemp and a State elections investigator,
and an hour-long conversation with Secretary of State Brad
Raffensperger badgering him to ''find 11,780 votes'' and warning
of a ''big risk'' to Raffensperger if he did not intervene
favorably to guarantee the reelection of President Trump;
Whereas President Trump appeared with members of his staff and
family at a celebratory kickoff rally to encourage and charge up
the rioters and insurrectionists to ''march on the Capitol'' and
''fight'' on Wednesday, January 6, 2021;
Whereas while violent insurrectionists occupied parts of the
Capitol, President Trump ignored or rejected repeated real-time
entreaties from Speaker Nancy Pelosi and Senate Minority Leader
Chuck Schumer to appeal to his followers to exit the Capitol,
and also ignored a tweet from Alyssa Farah, his former
communications director, saying: ''Condemn this now,
@realDonaldTrump—you are the only one they will listen to. For
our country!'';
Whereas photographs, cell phone videos, social media posts, and
on-the-ground reporting show that numerous violent
insurrectionists who invaded the Capitol were armed, were
carrying police grade flex cuffs to detain and handcuff people,
used mace, pepper spray, and bear spray against United States
Capitol Police officers, erected a gallows on Capitol grounds to
hang ''traitors,'' vehemently chanted ''Hang Mike Pence!'' while
surrounding and roving the Capitol, emphasized that storming the
Capitol was ''a revolution,'', brandished the Confederate battle
flag inside the Capitol, and were found to be in possession of
Napalm B, while still unidentified culprits planted multiple
pipe bombs at buildings near the Capitol complex, another
lethally dangerous criminal action that succeeded in diverting
law enforcement from the Capitol; and
Whereas Donald Trump has demonstrated repeatedly, continuously,
and spectacularly his absolute inability to discharge the most
basic and fundamental powers and duties of his office, including
most recently the duty to respect the legitimate results of the
Presidential election, the duty to respect the peaceful transfer
of democratic power under the Constitution, the duty to
participate in legally defined transition activities, the duty
to protect and uphold the Constitution of the United States,
including the counting of Electoral College votes by Congress,
the duty to protect the people of the United States and their
elected representatives against domestic insurrection, mob rule,
and seditious violence, and generally the duty to take care that
the laws be faithfully executed: Now, therefore, be it
Resolved, That the House of Representatives calls upon Vice
President Michael R. Pence—
(1) to immediately use his powers under section 4 of the 25th
Amendment to convene and mobilize the principal officers of the
executive departments in the Cabinet to declare what is obvious
to a horrified Nation: That the President is unable to
successfully discharge the duties and powers of his office; and
(2) to transmit to the President pro tempore of the Senate and
the Speaker of the House of Representatives notice that he will
be immediately assuming the powers and duties of the office as
Acting President.
Text of 25th Amendment
Amendment XXV
Section 1.
In case of the removal of the President from office or of his
death or resignation, the Vice President shall become President.
Section 2.
Whenever there is a vacancy in the office of the Vice President,
the President shall nominate a Vice President who shall take
office upon confirmation by a majority vote of both Houses of
Congress.
Section 3.
Whenever the President transmits to the President pro tempore of
the Senate and the Speaker of the House of Representatives his
written declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties
shall be discharged by the Vice President as Acting President.
Section 4.
Whenever the Vice President and a majority of either the
principal officers of the executive departments or of such
other body as Congress may by law provide, transmit to the
President pro tempore of the Senate and the Speaker of the
House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his
office, the Vice President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the President
pro tempore of the Senate and the Speaker of the House of
Representatives his written declaration that no inability
exists, he shall resume the powers and duties of his office
unless the Vice President and a majority of either the
principal officers of the executive department or of such
other body as Congress may by law provide, transmit within
four days to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written
declaration that the President is unable to discharge the
powers and duties of his office. Thereupon Congress shall
decide the issue, assembling within forty-eight hours for that
purpose if not in session. If the Congress, within twenty-one
days after receipt of the latter written declaration, or, if
Congress is not in session, within twenty-one days after
Congress is required to assemble, determines by two-thirds
vote of both Houses that the President is unable to discharge
the powers and duties of his office, the Vice President shall
continue to discharge the same as Acting President; otherwise,
the President shall resume the powers and duties of his
office.
Article I, Section 5
Each House [of Congress] may determine the Rules of its
proceedings, punish its members for disorderly behavior, and,
with the concurrence of two-thirds, expel a member.
Text of Section 1 of the Twentieth Amendment:
The terms of the President and the Vice President shall end at
noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years
in which such terms would have ended if this article had not
been ratified; and the terms of their successors shall then
begin.
Class 1 - January 7
The Senate Powersharing Agreement of the 107th Congress (2001):
Key Features:
https://www.everycrsreport.com/reports/RS20785.html
The Elections Clause - Art. I, Sec. IV, Clause 1:
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but Congress may at any time make or alter
such Regulations, except as to the Place of chusing Senators.
Trump v. New York (per curiam) (Dec. 18, 2020):
As the case comes to us, however, we conclude that it does
not—at this time—present a dispute “appropriately resolved
through the judicial process.”
Two related doctrines of justiciability—each originating in the
case-or-controversy requirement of Article III— underlie this
determination. First, a plaintiff must demonstrate standing,
including “an injury that is concrete, particularized, and
imminent rather than conjectural or hypothetical.” Second, the
case must be “ripe”—not dependent on “contingent future events
that may not occur as anticipated, or indeed may not occur at
all.”
At present, this case is riddled with contingencies and
speculation that impede judicial review.
Section 230 of the Communications Decency Act of 1996
47 U.S.C. § 230 - Protection for Private Blocking and Screening
of Offensive Material
(a) Findings
The Congress finds the following:
(1) The rapidly
developing array of Internet and other interactive computer
services available to individual Americans represent an
extraordinary advance in the availability of educational and
informational resources to our citizens.
(2) These
services offer users a great degree of control over the
information that they receive, as well as the potential for even
greater control in the future as technology develops.
(3) The Internet
and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for
cultural development, and myriad avenues for intellectual
activity.
(4) The Internet
and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government
regulation.
(5) Increasingly
Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.
(b) Policy
It is the policy of the United States
(1) to promote
the continued development of the Internet and other interactive
computer services and other interactive media;
(2) to preserve
the vibrant and competitive free market that presently exists
for the Internet and other interactive computer services,
unfettered by Federal or State regulation;
(3) to encourage
the development of technologies which maximize user control over
what information is received by individuals, families, and
schools who use the Internet and other interactive computer
services;
(4) to remove
disincentives for the development and utilization of blocking
and filtering technologies that empower parents to restrict
their childrens access to objectionable or inappropriate online
material; and
(5) to ensure
vigorous enforcement of Federal criminal laws to deter and
punish trafficking in obscenity, stalking, and harassment by
means of computer.
(c) Protection for Good Samaritan blocking and screening of
offensive material
(1) Treatment of
publisher or speaker
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
by another information content provider.
(2) Civil
liability
No provider or user of an interactive computer service shall be
held liable on account of
(A) any action
voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to
be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such
material is constitutionally protected; or
(B) any action
taken to enable or make available to information content
providers or others the technical means to restrict access to
material described in paragraph (1).{This reference to paragraph
(1) should probably be a reference to paragraph (A).}
(d) Obligations of interactive computer service
A provider of interactive computer service shall, at the time of
entering an agreement with a customer for the provision of
interactive computer service and in a manner deemed appropriate
by the provider, notify such customer that parental control
protections (such as computer hardware, software, or filtering
services) are commercially available that may assist the
customer in limiting access to material that is harmful to
minors. Such notice shall identify, or provide the customer with
access to information identifying, current providers of such
protections.
(e) Effect on other laws
(1) No effect on
criminal law
Nothing in this section shall be construed to impair the
enforcement of section 223 or 231 of this title, chapter 71
(relating to obscenity) or 110 (relating to sexual exploitation
of children) of title 18, or any other Federal criminal statute.
(2) No effect on
intellectual property law
Nothing in this section shall be construed to limit or expand
any law pertaining to intellectual property.
(3) State law
Nothing in this section shall be construed to prevent any State
from enforcing any State law that is consistent with this
section. No cause of action may be brought and no liability may
be imposed under any State or local law that is inconsistent
with this section.
(4) No effect on
communications privacy law
Nothing in this section shall be construed to limit the
application of the Electronic Communications Privacy Act of 1986
or any of the amendments made by such Act, or any similar State
law.
(f) Definitions
As used in this section:
(1) Internet
The term Internet means the international computer network of
both Federal and non-Federal interoperable packet switched data
networks.
(2) Interactive
computer service
The term interactive computer service means any information
service, system, or access software provider that provides or
enables computer access by multiple users to a computer server,
including specifically a service or system that provides access
to the Internet and such systems operated or services offered by
libraries or educational institutions.
(3) Information
content provider
The term information content provider means any person or entity
that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any
other interactive computer service.
(4) Access
software provider
The term access software provider means a provider of software
(including client or server software), or enabling tools that do
any one or more of the following:
(A) filter,
screen, allow, or disallow content;
(B) pick,
choose, analyze, or digest content; or
(C) transmit,
receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.