The argument is that Smith can file a superseding indictment and charge Trump with inciting insurrection under the referenced statute. Which is a great idea, if you want the trial in 2026.SCOTUS is quite clear: There is still a law on the books via which someone can be DQed under 14th A: 18 USC 2383. SCOTUS ALSO is not reviewing the part of DC CIrcuit opinion saying there is no double jeopardy problem with doing so.
— emptywheel (@emptywheel) March 4, 2024
Incitement raises 1st Amendment issues. More delays, challenges, etc. So let’s go for conspiracy, a la Georgia. Now we need new defendants, and it becomes a much more complicated case. And no chance of a trial before 2025.
So, sure, the head of the Proud Boys and the Oath Keepers can’t hold federal office (arguably). But the courts are not going to save us from Trump.
We have to do that.
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