Thread by @RichardWWard1

I know @POTUS called the 1/6 Capitol attack an insurrection. I agree.

There is a federal statute for insurrection, and it could accomplish the same thing as an impeachment proceeding, a total ban on government service.

But this is not the only applicable statute.

(more)

In 1940, the US was on the verge of entering WWII, against fascist (Germany, Italy), communist (Russia), and nationalist (Japan) regimes.

There was a fear that US residents would align with foreign powers.

In response, the Smith Act was passed.

(more)

mtsu.edu/first-amendmen…

The 1940 Smith Act fell out of favor not because it was unconstitutional, but because some applications were found to violate free speech protections.

Prosecutions based on Communist Party membership were made, for example, as part of McCarthyism.

en.wikipedia.org/wiki/Smith_Act…

(continued)

Through a series of Supreme Court cases, most of the Communist prosecutions were thrown out, and a new test for incitement was eventually adopted, most famously in the Brandenburg v. Ohio (1969) opinion.

(more)

mtsu.edu/first-amendmen…

Brandenburg made it a lot harder to prosecute incitement
by adopting an "imminent lawless action" test. Because the Smith Act would be hard to apply in such a situation, the statute was pretty much forgotten.

But there is more to the Smith Act than incitement.

(more)

And there was more than mere "incitement" or "advocacy" during the planning and execution of the 1/6 Capitol attack.

The attack actually happened.

Thus creating a case of first impression for the application of the Smith Act in different ways. (See underlines)

(more)

Not only does the Smith Act provide more details on activities made illegal, it also provides a much greater penalty.

Up to 20 years in prison.

Plus a 5 year federal employment ban.

There are other statutes which may apply to the 1/6 Capitol attack, some of them carrying penalties much harsher, up to the death penalty.

But the Smith Act gives an easy road map for DOJ prosecution of specifically listed crimes in an easily understandable way.

(more)

And, if an accused were to see that their exact activity was made illegal by the Smith Act, they may be more willing to cooperate with the government's investigation in return for a lighter sentence.

The terms are in black and white, not abstract at all.

(more)

Since statute is quite clear, and there is not much in terms of recent application -- because Citizens simply have not intended to literally overthrow our government as they did on 1/6 -- I'll stop the analysis here.

But I encourage @FBIWFO and DOJ to consider applying it.

@threadreaderapp unroll