Insurrection Inciters Ted Cruz and Josh Hawley Only Want the Violent January 6 Criminals Prosecuted

I just waded through the 159 pages of culture war questions — God, guns, and racism — that GOP Senators posed to Merrick Garland to justify their votes opposing the widely-respected moderate to be Attorney General. Along with a seemingly broad certainty among the Republican Senators that John Durham will finally find something 21 months into his investigation and a committed belief in outright lies told about Mike Flynn’s prosecution, two of the Republicans — coup-sympathizers Ted Cruz and Josh Hawley — made it clear they think the only crime from January 6 that should be prosecuted is assault.

Cruz did so as part of a series of questions designed to both-sides domestic terrorism. While he may intend this question and a counterpart about all protests in Summer 2020 (whether conducted by leftists or not) to set up an attack on a DOJ appointee, Cruz created a false binary regarding crimes related to January 6, where people either simply “attended the Trump rally” or they “participate[d] in any act of violence.”

66. Do you believe that an individual who attended the Trump rally on January 6, 2021 did not participate in any act of violence should be prohibited in holding a political position in the Department of Justice in a future administration, even if he or she did not personally engage in any unlawful conduct?

RESPONSE: Americans have a constitutional right to engage in lawful, peaceful protest. If confirmed, I would assess any candidate’s fitness for a role in the Department on an individual basis and with the goal of hiring individuals who are capable of carrying out the Department’s important mission with integrity.

This ignores the people who committed a crime by peacefully entering the Capitol, as well as people who didn’t enter the building but in some other way participated in efforts to prevent the certification of the vote.

Cruz also challenged the description of January 6 in terms of domestic terrorism.

69. At your hearing, you stated that your definition of “domestic terrorism” is “about the same” as the statutory definition.

a. What is the statutory definition of “domestic terrorism”?

RESPONSE: The term “domestic terrorism” is statutorily defined in 18 U.S.C. § 2331.

b. What is your definition of “domestic terrorism”?

c. What is the difference between your definition and the statutory definition?

d. What relevance will your personal definition of “domestic terrorism” have to your duties, if confirmed, as Attorney General?

RESPONSE: At the hearing, I described domestic terrorism as using violence or threats of violence in an attempt to disrupt democratic processes, noting that this definition is close to the statutory definition of the term in the criminal code codified at 18 U.S.C. § 2331. If confirmed, all of my actions as Attorney General would be guided by the law as written.

Ultimately, Cruz seems to be objecting to treating the interruption of the certification of the vote as a particularly “heinous” crime, as Garland had labeled it during his confirmation hearing.

Meanwhile, Josh Hawley asked Garland how he intends to protect the First Amendment rights of Americans to “criticize their government and pursue political change” while investigating an insurrection that Hawley calls “rioting.”

5. If you are confirmed as Attorney General, as you conduct your investigation of the rioting that took place at the Capitol grounds on January 6, 2021, what specific steps do you intend to take to ensure that Americans’ First Amendment rights to criticize their government and pursue political change are not infringed?

RESPONSE: Americans have a fundamental right to engage in lawful, peaceful protest. If confirmed, I will vigorously defend this right. Acts of violence and other criminal acts are not protected under the Constitution.

As Cruz did, Hawley’s question treats the January 6 investigation as a binary, either violence or protected under the First Amendment.

This framework, in both cases, ignores that even those who didn’t enter the Capitol, along with people who entered as part of a larger violent effort, are being charged both for obstructing the vote certification (the treatment of which as terrorism offended Cruz) and for conspiracy in the larger goal of obstructing the certification.

Mind you, both of these men should be safe. They have the right to raise questions about the vote, and the effect of the insurrection was to interrupt whatever they were doing, even if it was, itself, delaying the certification. So their peaceful contributions to the events of January 6 should be fine.

Unless, of course, it can be shown that their efforts were coordinated with the larger effort, were an effort to buy time until the rioters could more effectively end the process of democracy that day.

In any case, both are very clearly working the soon-to-be ref here, hoping to limit the scope of the investigation to those who committed assault. As Hawley did the other day with his alarmed questions about normal legal process, we should expect Hawley to attempt to delegitimize any scrutiny into his far right allies from that day.

38 replies
  1. bmaz says:

    Does nobody know the Durham history as to past their prime “investigations” under different leadership? Yeargh.

    • PeterS says:

      The dumb Durham questions got the obvious “As I testified at my hearing…” answers, but I noted the nicely snappy answer to the question “Has anyone within the Biden administration, the Biden transition team, or the Department of Justice discussed the Durham Investigation with you?” – “No”.

  2. joel fisher says:

    Funny that smart guys like Hawley and Cruz seems to have been MIA when they discussed “aiding and abetting” in law school and haven’t seemed to pick up on it since. Or….maybe they are lying to a deliberately gullible bunch of morons.

    • BobCon says:

      I don’t think they’re doing this becuse they’re so smart so much as because they’re not so smart.

      Cruz and Hawley are overestimating the value of overlitigating this stuff, in my opinion. If they are trying to play to the base they are missing the lesson of the 2016 GOP primaries, which is that the number of lines on the resume don’t matter, nor do the number of questions to a nominee. It’s about personal branding, which is the opposite of nitpicking.

      I think Cruz and Hawley may well be lying in the hopes of appealing to gullible people, but I think they’re making the basic mistake of projecting their own gullibilities onto their supposed marks.

      • joel fisher says:

        When I think of the vile scum warming up in the GOP bullpen–Cruz, Hawley, and let’s not forget DeSantis–it almost makes me pine for the good old days of the Bushes. Even more depressing: Trump will crush them flat under the wheels of his Trump ’24 juggernaut.

        • PhoneInducedPinkEye says:

          I have a tendency to forget how bad the bush years were given how loud the Trump era was, but Bush was just as bad if not worse. He certainly killed a lot more people than Trump has.

          • timbo says:

            Uh… what? You seem to have missed counting all the folks Trump’s regime and the Twitlerian GOP killed with their crap pandemic response.

            • joel fisher says:

              After the first couple of hundred thousand deaths it’s hard for me to say who is worse, Bush, because he killed more or Trump because he killed more. With Bush, there is some small chance he was trying to do the right thing; not so with Trump. In the scum sweepstakes, I gotta go with Trump; down 100s of 1000s of deaths going into year 4 he closed fast, pulled away, and is still scoring. It’s not close.

        • greenbird says:

          very little still resonates for me about those bush years. let’s just say an unpublished-but-drawn-by-a-pro editorial cartoon illustrates the truth so so well:
          Cheney from the back, no clothes, standing in front of his commode, dangling a used prophylactic which bulges with the face of Chimpy.

          easy to update with Pooty, and Chump being dangled, and it’s another winner.

  3. harpie says:

    ew: As Cruz did, Hawley’s question treats the January 6 investigation as a binary, either violence or protected under the First Amendment.

    I’ve been [going in circles] trying to pin down the amendments to the rally permits from the first approval on 12/31 to the last change on 1/4.

    One thing I noticed when Trump WH/Trump Victory Pac took charge of the planning, there was an effort to change the NAME to “First Amendment Rally”, but keep the messaging, signage on “March for Trump/Save America/Stop the Steal”.

  4. Peterr says:

    These are questions designed to set up a false equivalency between BLM and the Insurrectionists. In future hearings, I fully expect to hear them point to all the prosecutions of the insurrectionists and then proclaim their Great Concern that the DOJ has not gone after BLM in a similar manner.

    These are questions, in other words, designed to stoke the racial racist grievances of the Right, to solidify their base back home (why yes, I see confederate battle flags flying proudly in parts of Missouri – why do you ask?) as well as to lay the groundwork for their 2024 primary campaigns.

    As for the binary “violence or protected speech” dynamic, this is part of the GOP playbook. Look at how they treat Wall Street and the Financial Industry: if you if you run a bank or investment firm that steals from homeowners, customers, pension funds, other investors, etc., you’re in the clear legally unless you use a gun.

    All that was missing from the questions by Cruz and Hawley was the Marjorie Taylor Green question: “Should you be confirmed as AG, would you protect the Second Amendment right of members of congress to bear arms while in their place of work?”

    • PeterS says:

      You’d think that equating the overthrow of democracy to a fight against racism would complete the moral bankruptcy of the GOP. But it won’t, there’ll be something else.

    • Mart says:

      Always amuses me that in response to BLM, statue toppling, and the Portland Federal building – Trump signed an executive order increasing sentences for damaging or trespassing on Federal property. Everyone in the insurrection whether wild or mild is subject to those penalties.

  5. Rugger9 says:

    Well, I think the real reason that the GOP is trying so desperately to limit the scope (since they failed to spike this entirely) is that once the background conspiracy is examined and put out into the public as EW has done so well the GOP is exposed as the real problem for our democracy.

    Grover Norquist only wanted someone as POTUS smart enough to hold a pen, which came true with W and with DJT, but unlike W, DJT demanded to meddle as well. In terms of old emperors, W matched Nicholas II of Russia and DJT matches Wilhelm II of Germany. Both lost their crowns and Nicky his life at the hands of the Bolsheviks.

    DJT’s allegedly floating some (ahem) interesting ideas, such as getting Ivanka started in politics by having her as his running mate (however, one of them would have to move away from FL or forfeit those substantial electoral college votes per the 12th Amendment). However, DJT’s also blaming Jared for losing in 2020 so I’m wondering whether Ivanka would go for it. Lara might but she’s a lightweight. DJTJ and Eric? Nyet. The reason DJT keeps teasing a 2024 run is to keep the small-dollar rubes shoveling money into his campaign committee to vanish into contracts with TrumpOrg-connected entities. After all, that (at least) 422 million dollar call is coming next year and DJT doesn’t have it now.

  6. Amers says:

    I learned from Garland that the definition of domestic terrorism importantly involves disruption of democractic processes and I think I remember his pointing out that the courthouse in Portland, OR was not in session during those protests. An important distinction that these GOP members seem to gloss over.

    • PeterS says:

      Cotton (I think) asked this question:

      Does intent matter in the determination of whether something is “an attack on our democratic institutions?” In other words, if rioters attacking the U.S. Capitol mistakenly believed that Congress was conducting business inside and the rioters intended to disrupt such business but the buildings were actually empty at the time, would such a riot still be an attack on our democratic institutions?

      Which seemed an odd hypothetical, and Garland simply answered by referring to the statute. I assume the answer is “yes” (?).

      On the subject of intent, I am also guessing that there isn’t criminal intent absent the means to carry out the “intended” act. Not that the 6 Jan insurrectionists required much “means”.

      • harpie says:

        [02:41:42] HAWLEY: Let me ask you about assaults on federal property, places like in Washington DC and Portland for instance, Seattle. Do you regard assaults on federal court houses or other properties acts of domestic extremism or domestic terrorism?

        JUDGE GARLAND: Well, Senator, my own definition is about the same as the statutory definition, is the use of violence or threats of violence in an attempt to disrupt the democratic processes.

        So, an attack on a court house while in operation trying to prevent judges from actually deciding cases, that plainly is domestic extremism, domestic terrorism. An attack simply on government property at night or any other kind of circumstances, is a clear crime and a serious one, that should be punished.

        I don’t know enough about the facts of the example you’re talking about, but that’s where I draw the line. One is. Both are criminal, but one is a core attack on our democratic institutions.

  7. pseudonymous in nc says:

    Beyond the snark about whether Hawley and Cruz ought to be nervous: this has the potential to be the biggest test of the speech or debate clause in terms of investigatory powers since the raid on William Jefferson’s office in 2006.

    That’s perhaps why they’re trying to create a binary between violent acts and protected speech: while the speech or debate clause is broadly construed, it’s not blanket immunity, per US v Brewster, and one exception against arrest is “breach of the peace.” (The 9th Circuit opinion on the Rick Renzi case also narrowed the definition of legislative activity in relation to prosecutions.)

    And unlike the Jefferson case, the DOJ has access to evidence that doesn’t require a physical search and thus clearer issues of legislative privilege over materials.

    • BobCon says:

      They may also be worried about a DOJ investigation spawning Ethics Committee action that wouldn’t be subject to Speech or Debate. The Senate’s capacity to dig into things like 1/6 phone traffic or link Senators or staff to rioters is limited without help from the Feds.

      Senate Ethics has extremely broad authority but limited means. The feds have broad means but limited authority. Someone like Hawley may want to throttle the fed side early to try to keep information from coming to light that would promote calls for Ethics Committee action and cause events to keep spiraling out of his control.

        • Carly Russell says:

          I am not all lawyer so it’s been interesting to read all this.

          I am trained school psychologist and have been doing it long enough to trust my gut on if need an area explored more when I’m wring up a psycho-educational report and looking at what CA call

  8. harpie says:

    Representatives…not Senators…but still!!!:

    Rep. Zoe Lofgren publishes analysis of social media posts from 102 Republicans who voted to overturn the 2020 election
    MARCH 5, 2021 Justin Hendrix

    In order to provide evidence “relevant to assessing the potential of Congress’ constitutional prerogatives and responsibilities, including actions pursuant to the 14th Amendment and/or House rules” to punish or remove Representatives who voted to overturn the 2020 presidential election or may have supported the January 6th insurrection, Representative Zoe Lofgren, D-CA19, today released a nearly 2,000 page document detailing public social media posts from 102 Congressional Republicans between November 3rd, 2020 and January 31st, 2021. […]

    • Zinsky says:

      I linked to this report in another EW post. This is great work by Lofgren’s staff and provides a vivid trail to follow, of the mushrooming “Big Lie”, as it spread like a cancer across all media channels aided and abetted by sitting Representatives and Senators. The tableau of deceit, scienter and lies seeded across the media spectrum is horribly damning to the Republican Party, in my estimation. Large swaths of elected officials were actively spreading lies in order to help an immature, pathologically narcissistic con man and liar stay in office after an election where he clearly got trounced! I don’t see how this looks anything but horrific through the long lens of history.

  9. Nancy Terhaar says:

    Why is the non-violent get-away driver in a bank robbery (who just sat in the car) charged with murder if someone is killed inside the bank during the robbery? There is something about being complicit in the totality of a crime, isn’t there?

    Trump may have incited the events of January 6th, but without a large mob, the “violent ones” would never have breached the first barricade and then the steps and then the Capital building itself.

    The mob may not have known violence would be a foreseeable result– as Trump no doubt did– but neither would the get-away driver necessarily know a death would occur inside the bank.

    I see every member of the mob complicit in the results of that day, including the death of a police office. Is there any legal accountability that goes with my thinking?

    • bmaz says:

      Hi. You have commented here twice. Under two different names. That does not work any more than your simplistic theory of complicity.

      • Badger Robert says:

        Targeting the former President is far in the future. Expanding the investigation of attempted coup will probably produce evidence of the involvement of the Republican donor class. If lower level administration officials are indicted and convicted, that should have a chilling affect on future attempted coups.
        Starting from the bottom, it seems the goal would get to as many pleas and as much full co-operation as possible from the participants. Trials would be saved for the higher level organizers, who will be forced to hire qualified defense attorneys and make technical arguments about defenses.

  10. CD54 says:

    Maybe Cruz and Hawley are just asking questions in order to tune their “From the Office of” letter templates for everybody’s sentencing phase:

    “Really, who among us in our younger life hasn’t worn a buffalo headdress and trespassed with a spear?”

  11. FZ 25 says:

    Seriously Josh Hawley no one can be this damn dumb then there is you. Your cellphone can be tracked and your calls traced even when the damn thing is turned off. The FBI has your geolocation and metadata. They have your cellphone data instigating the Insurrection as to when and to whom you called. You just better hope they ask you to resign instead of 20 years making little ones out of big ones at Club Fed.

  12. mospeck says:

    going by Mother Nature it just looks impossible to escape from the josh hawleys . But then, could be wrong- brother in law David the lawyer is explaining to me all the time this even-keeled mind sort of thing that lawyers intrinsic gotta have. Admire it, don’t have it (would indict a ham sandwich).
    Anyhow, high hopes for SN11 (that this time she gets all her legs down)
    10, she was close, stuck the landing

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