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no bull and the aftermath.

Is incitement of insurrection the same thing as engaging in insurrection?

There was a law in 1862 that made it a crime to incite or engage in insurrection, which

might be read to suggest that the 1860s Congress viewed incitement and engaging as separate

things.

We're not certainly behaved irresponsibly toward the insurrection.

I think we even incited it, but if we look at the instances from the late 1860s where

Congress excluded members who by their words had participated in the Confederacy, they

had said things that were far more noxious than what Trump said.

They had said we should hang Abraham Lincoln or any Union soldier from Kentucky ought to

be shocked, whereas Trump said that the rally would be wild and that his supporters should

fight, but he didn't use the language as clearly violent as some of the late 1860s potential

members of Congress who were excluded.

I'm Alan Rosenstein and this is the Law Fair Podcast January 19, 2021.

In the wake of the January 6th mob attack on the Capitol, some have called for the invocation

of Section 3 of the 14th Amendment.

Section 3 disqualifies anyone who has engaged in rebellion or insurrection against the United

States from public office.

...