January 6, Ambiguously Inciting Speech, and the Over-Acts Rule
Alan Z. Rozenshtein, Jed Handelsman Shugerman
The January 6 invasion of the Capitol was the most serious attack on American democracy since the Civil War. At his “Stop the Steal” rally before the armed crowd stormed the Capitol, Donald Trump gave a speech urging the crowd to “fight like hell” against a stolen election and march to the Capitol, where Congress…
Self-Coup and the Constitution
Daniel J. Hemel
After the violence at the Capitol that left five dead and dozens injured on January 6, 2021, observers struggled to find a word or phrase that would fully describe the day’s bloodshed. Early reports characterized the attack as a “riot,” a term defined at common law as “three or more persons . . . unlawfully assembled to carry…
The January 6 Insurrection and the Problem of Constitutional Guardianship
Aziz Z. Huq
To my mind, there are at least three different ways in which the January 6 insurrection manifests and enables a complex, multifaceted democratic emergency. This term is first an appropriate description of January 6 simply as an event—an eruption of violence wreathed in constitutional slogans and defended, paradoxically in the name of (ordinarily nonviolent) democratic…
Impeachment, Free Speech, and the Cancel Culture Narrative
Heidi Kitrosser
In Part I of this Essay, I provide an overview of Trump’s First Amendment arguments against his second impeachment and against conviction by the Senate. I also summarize major scholarly responses to the same. In Part II, I build on existing arguments against imposing constraints derived from First Amendment case law on the impeachment process.…
The Mixed Legacy of the January 6 Investigation for Executive Privilege and Congressional Oversight
Jonathan David Shaub
The attack on the Capitol on January 6 was an unprecedented event in U.S. history. Across a wide swath of constitutional law, January 6 will have significant implications and consequences, most of which are likely not yet known. That is particularly true of constitutional doctrines governing congressional oversight and executive privilege. The select committee established…
