Now I don’t want to go into the specific situation discussed, but I want to know legally of such a thread is actually ‘advocating illegal activities’ in a strict legal sense.
Opening up with if a coup (any coup, again not this situation) is successful, is it illegal? It would appear that the success would render the action legal. If unsuccessful yes it would most likely be found illegal.
The OP’s call for the coup seems to be wrapped up in the last paragraph:
The question, I guess comes down to what is the situation that the 25th Amendment can not be enforced? If it can’t be enforced, which depending on the reason may or may not be a constitutional crisis. Can it not be enforced due to a illegal/unconstitutional power grab and there is currently no constitutional mechanism left to address the situation, would such a call to arms by a US citizen actually be illegal, or would it be based on the outcome, and such a action akin to a citizen’s arrest, though for mental health reasons and being a danger to others?
Yes, of course it is illegal. 18 U.S. Code § 2383 makes it illegal for anyone to engage in any rebellion or insurrection against the authority of the United States. Your distinction between a successful coup and an unsuccessful one are meaningless. Do you agree that it would be illegal for someone to kill every human on the planet? But what if that person was successful at actually killing every single person on the planet. Then it would be legal, right? Because there would be nobody around to render the action illegal. Right? Maybe if he is unsuccessful, it would likely be illegal to kill a few billion people, I guess. But if he managed to kill all of them, then it would be totally legal. That’s how you sound.
It would be illegal under the existing laws of the United States. The fact that if such a coup succeeded, the new regime would enact new laws which retroactively legitimized their actions would not change this initial illegality.
It’s like the American Revolution; it was illegal under British law for the Americans to declare independence. But they succeeded in forming a new country and that meant that they were no longer under the jurisdiction of British law. However the initial act was still illegal.
There are ways in which an American President can be legally removed from office; he can be voted out in an election, he can be impeached, or he can be removed under the 25th Amendment. But there is no legal way for the military to remove him from office.
And moreover, for any actual member of the military, attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition, are *capital *crimes (UCMJ Article 94).
Whether some rando on the Internet going “will no one deliver us from this turbulent salesman” would actually meet the threshold to get any authorities in motion is a separate matter which those same authorities probably have to answer multiple times every day even under normal circumstances. But directly advocating military sublevation does conflict with how the Board’s rules have been applied in the past to other illegal activities.
We’re drifting away from strict GQ territory here, but my understanding is that the NH right to revolution, as those in KY, PA and TN, would apply under the terms of the Declaration of Independence, when the established government has lost its legitimacy and become destructive of the inalienable natural rights of its people. Not just when someone is governing ineptly. Similarly in the French Declaration of the Rights of Man the right of Resistance to Opression which ranks as fundamental together with liberty and property .
Criminal Conspiracy requires two people. As long as nobody answers your call, you are safe. But the moment someone else takes up your call, you could be in trouble.
In recent years, the courts have been reluctant to convict people of sedition, but technically, the law against it is still on the books.
The federal provision strikes me as an implementation of the federal guarantee of republican government, set out in Article IV, s. 4:
If there’s a conflict between the federal Constitution (and laws adopted under it) and the state Constitution, then the state Constitution gives way under Article VI (the Supremacy clause), which expressly refers to state constitutions:
The code quoted in post #6 says it is illegal to advocate the destruction of the government “by force or violence.” So apparently it is legal to advocate overthrowing the government using peaceful resistance? That’s kind of interesting to think about.
The Declaration of Independence is not a legal document. It is a revolutionary manifesto establishing the position of a minority of citizens in the American colonies. It was very much a PR document that sought to convince other citizens to join the cause. It had some success in that role by convincing those closest to supporting the cause to join. It failed with a number who remained generally neutral throughout. It also failed with another chunk of the populace. They were only convinced by a combination of direct violence against them and foreign support for their cause being withdrawn.
While many of the principles from that document guided the government that the winners formed. We should not mistake a key influencing document in the formation of the government for the actual constitutional law it influenced.
The American revolutions understood that what they were doing was illegal. That’s why they pledged their lives, their fortunes, and their sacred honor.
It’s also why Ben Franklin said, “Gentlemen, if we don’t hang together we shall most assuredly hang separately.”