Trump Should Be Prosecuted Under 18 U.S.C. sec. 2383 for Organizing, Fomenting and Initiating an Insurrection Against the United States
The Response to Trump v. Anderson Requires a Section 2383 Prosecution
Today, the Supreme Court held that a State cannot remove Trump from its primary or general election ballot, though the latter issue was not before them. Their Per Curiam opinion held that only Congress can enforce the provisions of Section 3 of the Fourteenth Amendment. Trump v. Anderson.
But as recognized by the Court, the Congress has adopted legislation that enforces Section 3 though the Congressional statutory reach is broader than the Constitutional provision. Congress adopted 18 U.S.C. sec. 2383 which provides:
“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.”
(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
This provision is broader than Section 3 and applies to anyone who assists or engages in any rebellion or insurrection against the authority of the United States. Trump clearly falls within the purview of the statute based on the Report of the Special House Investigating Committee. This criminal provision provides for both incarceration and imprisonment and fines as well as a lifetime ban on that person holding “any office under the United States.”
The Special Prosecutor did not charge Trump with violating Section 2383, but he could. He could issue a superseding indictment including Section 2383 in the claims and accusations against Trump. Since the January 6 insurrection case is on hold due to the Court granting certiorari on the frivolous claims of Trump to complete and total presidential immunity from prosecution, the addition of a Section 2383 indictment would not delay the January 6 trial as it is in suspense awaiting the Supreme Court decision on Trump’s immunity claims.
Trump’s actions and inactions (not calling off the rioters for three hours while he watched them on TV despite pleas from others for him to act) justify a Section 2383 prosecution in addition to the other charges in the existing indictment. That statute adds a punishment not included in the Special Counsel’s current charges: a lifetime ban from holding any U.S. office including the presidency.
While Jack Smith’s other cases are in limbo, he could convene a grand jury in Washington to add a Section 2383 indictment of Trump. Now is the time to do so!