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Which argument were you referring to exactly? I've seen people argue that Trump's inaction is evidence that he wanted the insurrection to happen (which obviously goes to intent), but those same arguments say that it was Trumps words and actions that incited the insurrection. I haven't seen any briefs claiming that he is guilty of engaging in insurrection purely because of his inaction. Could you link me whatever brief it was that I missed?
The Amar Bros. Now, of course they also say that they think his words/actions incited the insurrection, but you know the old joke about, "I don't know anything about whatever it is you're talking about, and if I did know something, which I vehemently deny, it would be that I couldn't have done it, because I don't have the specific tools needed to open that sort of safe, and if I did have the specific tools needed to open that sort of safe, ......"
They clearly want to give the Court as many options as possible, to say that a combination of words/actions/inactions is enough, and if words aren't good because 1A or something, then they can say that a combination of actions/inactions is enough, and if that's not good because he took basically no actual actions that they can stomach making precedent for disqualification-by-insurrection, then they can say that just inaction is enough.
And egads, I forgot how incredible their run from Brandenberg was. They throw the entire thing in the trash heap in like one sentence, saying that it's "super-strict" and doesn't "automatically" carry over from criminal law to ballot eligibility. Ok, so just because something might not be "automatic" doesn't actually provide an argument either way. But what they propose is hilariously bad. Since you can be denied from office by refusing to say the Oath, somehow, that "automatically" means that there are no free speech protections whatsoever when it comes to the question of ballot eligibility. Just wow. I would normally lol at the folks who point to the speech of Dems around the BLM riots and say that they could get to disqualification from there, but if these people have their way, there really is nothing stopping such a result.
I don't believe you are representing the Amar brief fairly. I do not find anything in there that can be construed as saying inaction alone can be enough to constitute engagement in an insurrection, even hypothetically.
Having said that, I don't think it's a good brief. I'm pretty sceptical of their "First Insurrection" narrative. Taking their account at face value, there may have been a conspiracy to prevent the certification of Lincoln's election, but it seems to me that if the attempt was deterred before it ever started it can't count as an insurrection. They certainly try to give the impression that the "First Insurrection" was understood as such at the time, but they don't really establish this anywhere. And as you say, they give pretty short shrift to some complex issues.
See their questions 5 and 12, in particular. Again, they still obviously want to keep the option of 'action and inaction together' open as their primary argument, but they directly and affirmatively claim that yes, they think that inaction alone can be "giving aid and comfort" within their reading of Section 3. Of course, this is divorced from the distinction in Section 3 between "engaging in insurrection" and "giving aid and comfort to enemies", which other briefs think are distinct things. I.e., others think that "enemies" must mean "foreign enemies", given whatever history/definitions, whereas the Amar bros do the sort of smashing together of the two parts to get an idea of "giving aid and comfort to people who are engaging in insurrection" rather than "engaging in insurrection" being separate from "giving aid and comfort to enemies".
At best, one could say that they're implicitly claiming that anyone who engages in insurrection is an "enemy", but a Ctrl+F for "enemies" and "enemy" shows only one result for each, neither of which engages with this thorny question. Therefore, I think my reading is a fair representation of what they have actually written in their brief. They might have some other nuanced view that isn't actually in the text of what they wrote, but that's what they wrote. I'll remind you that these are the statements I've made concerning their brief on this question:
I really cannot see how that is not a fair reading of what they wrote.
My bad, I skimmed over question 5 (assuming, given the heading, that it would focus narrowly on the question of whether the presidential oath fits within the oaths described in section 3). You are right, they do seem to say here (though not elsewhere) that inaction can be enough to constitute "giving aid or comfort". I think that's a bad argument (and if you're going to make it you should do so properly rather than in a brief aside while addressing a different issue) - I accept that the Presidential oath confers specific duties on the President and that by inaction he can break his oath. However, section 3 does not address all forms of oathbreaking. It addresses a specific type, which by its verbiage demands action.
All I can say I guess is that this is a very bad brief and while I hope the court rules to disqualify Trump, I also hope they don't rely on the Amars' reasoning.
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