Sad Legal Trombone

“Technical violation of the constitution” lol https://t.co/gWQhkVtlUU

— Josh Marshall (@joshtpm) August 6, 2023

The legal fact is, except for treason, there is no criminal penalty attached to any provision of the Constitution.

You can’t be prosecuted for a criminal act unless there is a law that prohibits or proscribes such acts, and a criminal penalty for such acts. Statutes can make provisions of the constitution enforceable (Voting Rights Act for the 15th Amendment, e.g. Until the VRA, the 15th Amendment was violated with impunity.). But the Constitution itself, without such statutes, does not proscribe conduct. Mostly it establishes governmental functions and gives some limits to those who wield them.

So, no, I don’t know what a “technical” violation of the constitution is, but I do know it doesn’t carry a criminal penalty. Trump telling Pence to ignore the 12th amendment and send the electoral ballots back to the states is not what Smith charged Trump with. Smith didn’t allege a breach of the 12th amendment; he alleged the violation of a criminal statute. What Trump (allegedly) did arguably (everything is arguable, at law) violates the civil rights of all the voters behind those electoral ballots.

So, yeah, Lauro isn’t wrong. But he isn’t right. And it doesn’t do him, or his client, any good