San Diego Law Professor On Legal Aftermath of Washington Protests

Speaker 1: 00:00 President Trump has now said through a spokesperson that he has agreed to an orderly transition of power, but that's not enough to stop the increasing calls for Trump to step down or be removed from office before Joe Biden's inauguration on January 20th, politicians, editorial boards, and former allies of the precedent say it's time for him to go, but that's not a simple proposition. Joining me is Glenn Smith, professor of law at California Western school of law. And Glenn, welcome back to the show. Thank you. Just start off. There were a number of words used to describe what happened at the Capitol yesterday. Some of which actually have legal definitions, and I'd like to ask you what is sedition and how is it different from treason? Speaker 2: 00:48 Uh, treason in its narrow sense is thought to involve trying to help a foreign power against the U S government. Uh, it has some broader definitions, but insurrection can be, uh, any kind of violent or disruptive act to try to, to try to interfere with the legitimate processes of government. Speaker 1: 01:08 And do you think sedition or insurrection could be one of the charges against rioters at the Capitol? Speaker 2: 01:13 Uh, it definitely could, um, in turn as well as, you know, the more garden variety, but serious, uh, uh, breaches of the law that come whenever property is damaged and people are put in, in life's danger and guns are illegally toted and all those, but certainly there are laws against, uh, not only insurrection, but sedition implies. I think a greater sense of trying to overthrow the government know, put in the, put in a different government or create anarchy, whereas insurrection can simply be, you know, what we saw yesterday, a riot, a riot, a swab, uh, invading a sacred space of the country. As you know, Maureen, more than anyone, uh, from talking to me, law legal terms are not precisely defined and are subject to multiple interpretations. And that's certainly something that I know that, uh, I would imagine at least at a number of federal prosecutors and state prosecutors, where there are state laws against this, or looking at the definitions and trying to figure out which offense best matches the, the gravity of what happened. Speaker 1: 02:16 What about the speakers at yesterday's rally, including the president and his attorney, Rudy Giuliani, who told the people to March to the Capitol, could they be liable for inciting the riot? Speaker 2: 02:28 Uh, it gets you into a very interesting question because although there are laws against inciting riot, there's a very high bar. Uh, basically the person has to be calling for the eminent action of physical violence or death or destruction rather than doing it to generally being supportive or being, uh, encouraging or whatever. And so, uh, again, the devil's in the details with all these, all these statutes, certainly, uh, beyond the legalism of it, it would certainly be a high crime or misdemeanor. In my view, that would be impeachable immediately. It would be evidence of unfitness for office that would justify the 25th amendment. So on a continuum, there's different questions of precise, legal questions. And then what are the political significance of these things, et cetera. Speaker 1: 03:16 I'm going to ask you more about the 25th amendment at a moment, but just to wrap this up now that Congress has affirmed Joe Biden's win. Are there any longshot legal challenges that remain for president Trump? Speaker 2: 03:28 You're you're going to be amazed, Maureen. I'm going to say no. Okay. We rarely have short answers in this, but that's very clear. Uh, the last constitutional requirement has been discharged by the Congress and Biden and Harris are the upcoming president and vice president. And there's really no, uh, I mean, I, I CA if this were a law school exam, I could imagine torturing the students by asking, having a, a lawsuit brought to the Supreme court that tried to argue that the Congress acted illegitimately. That's just practically unimaginable. Speaker 1: 04:05 Okay, then, so the president is now saying that there will be an orderly transition of power when president elect Biden is sworn in, but apparently there are still a lot of calls for, and a lot of concerns about Trump's mental stability. The 25th amendment has been mentioned, how can that be invoked if a president isn't comatose or nearly dead? Speaker 2: 04:28 Well, uh, the way the procedure provides that, uh, the vice president and a majority of the cabinet can certify to Congress that the president has quote, unfit a term that clearly implies what you were talking about, but also arguably implies skied lists disregard of the rule of law, et cetera, et cetera. In any event, the processes that the vice president and a majority of the cabinet officials, and of course, trying to get who's in the cabinet now, and a majority and all that might be difficult. They certify to Congress that the president's unfit, if the president then certifies that no I'm fit, uh, Congress has four days to consider it. And if a super majority, two thirds in both the house and the Senate vote to permanently declare the president unfit, it can be done. Speaker 1: 05:16 Could that process be accomplished in the less than two weeks remaining in Trump's presidency Speaker 2: 05:22 In time wise? It could. And that's one of the interesting things. Of course, it requires us some political assumptions and political will shown by the vice-president and the cabinet. And, um, you know, you gotta wonder after last night's vote, where more than a hundred house members, uh, still walk the plank for the president, whether in fact there would be a two thirds majority to remove him under the 25th amendment. But, um, at least in terms of the process, that would appear to be the more, the more fast track process compared to say impeachment, which again could be done, but there's just certain internal procedures in Congress and an ability in Congress for people to, to stop the impeachment process or delay the trial and all that. So, um, it could be done requires an extreme, uh, political will and consensus that, uh, haven't seen so far. Speaker 1: 06:16 We were in a weird constitutional place yesterday because it seems from reliable reports that it was vice-president Pence who called out the national guard to protect the Capitol. It seems Pence was the facto in charge for most of the afternoon, can a vice-president takeover like that? Speaker 2: 06:36 Well, again, you get one of these classic definitions between the formalities and the pragmatism, the framers of the constitution drive to create important checks and balances and formalities, but they recognize that sometimes practicalities including insurrection or the country's under attack or whatever require, uh, extraordinary measures. So I don't think there was a technical right of, uh, vice-president Pence to do what he did, but I think it would be understandable that, uh, everyone involved with think that somebody needed to do something and bring, bring calm to a dangerous situation. Speaker 1: 07:12 You know, I think we've all been watching and reading political pundits who say they are afraid of what president Trump might do in the last days of his presidency. Is there a legal way, short of impeachment or removal that can put a check on his taking some final destructive action? Speaker 2: 07:30 Uh, there probably are, if I were more of a military expert, I would probably know that there are more statutory controls on whether the president can order an attack or, you know, various kinds of things. But generally, no, generally the framers of the constitution created a system that assumed a minimum level of good faith and Goodwill and a minimum level of functional competence for in the, in the high ranking officials. And, uh, there's not any formal procedure. I would hope that, you know, the joint chiefs of staff and military officials and people in the white house are, are doing again, pragmatic things like, um, hiding the nuclear code or telling the president what he wants to hear rather than something that would make him more dangerous. But, uh, but that's all sort of practical. And it depends on the ingenuity and Goodwill of people rather than something that's provided in the constitution or the law. Speaker 1: 08:28 It sounds like you are also concerned about the final days of this presidency. Speaker 2: 08:32 I, I don't see how you could not be concerned after, uh, what we saw yesterday. I mean, I never, I was a former Senate staffer Marine back in the old days, and I never thought I would see either number one, uh, an armed mob attacking the place that I used to work in regards to those significantly or that the person in the United States, uh, would it on and senators. So I'm, I'm, you know, I don't think we can take anything for granted. I think rationality is gonna hold and we're gonna hopefully get out of this without any huge, additional worsening of the situation. But I think people that are concerned have a right to be concerned. Speaker 1: 09:14 And I've been speaking with Glenn Smith, professor of law at California Western school of law Glenn. Thank you. Welcome. Speaker 3: 09:32 [inaudible].