It’s not a First Amendment issue

Anybody who tells you that the two indictments of Donald Trump (one Federal and one in Georgia, see below for links) concerning his unsuccessful attempt to defraud the American people by overturning the results of a free and fair election are in any way, shape, or form First Amendment issues is lying to you. They’re either ignorant of what’s actually in the indictments or they know but they don’t want you to know.

Neither indictment is about punishing the Bumbling Buffoon for his well-documented tendency to lie through his teeth. Nobody’s saying that spouting bullshit is against the law, even if you know what you’re saying is false. What the indictments are saying is that the sitting President of the United States entered into a criminal conspiracy to illegally change the results of an election.

“But he really believed that the election was corrupt.”

I don’t believe that. But let’s say it’s true: that Donald Trump at the time really was (and, what the hell, still is) dumb enough or stubborn enough to believe, despite all evidence to the contrary, that there was, as the Federal indictment puts it, “outcome determinative fraud.”

That doesn’t justify entering into a criminal conspiracy to violate the law. It doesn’t excuse filing official documents that contain false statements or opinions asserted as fact, especially when those statements are not backed up by anything approaching solid evidence. It doesn’t excuse the use of intimidation to influence witnesses. It doesn’t exonerate the attempts to convince officials to violate their oaths of office. It doesn’t excuse the President of the United States for suggesting to his subordinates that they violate the law. Those actions are crimes–felonies–regardless of whether one believes that in committing them he is somehow “righting a wrong.”

This isn’t new territory. We don’t let somebody off the hook for murder because they thought the victim deserved it: “The court found him not guilty, but I know he did it.” We call that vigilantism and as far as I know it’s illegal everywhere in the country.

Trump and his defenders will have you believe that he’s being persecuted because he’s a threat to Democrats in the 2024 election. They want you to believe that these criminal indictments are products of a handful of overzealous anti-Trump prosecutors who’ll use any excuse to prevent him from being on the 2024 ballot. They want you to conveniently forget that both indictments are brought, not by the prosecutors, but rather by ordinary citizens–a grand jury that’s selected from qualified citizens in the jurisdictions that the indictments are brought. The prosecutors present evidence to the grand jury and the citizens vote to determine whether the evidence presented is sufficient to charge the persons in question with crimes. They’ve decided that, yes, there is sufficient evidence to accuse Donald Trump and his cabal of co-conspirators with crimes: that there should be a trial.

The Trump apologists, the “what about” crowd, and those who seek to minimize the gravity of the alleged offenses are not being honest with you. These indictments have nothing to do with First Amendment rights. The Federal indictment explicitly asserts the defendant’s rights to say what they please, regardless of the veracity of their statements.

Do yourself a favor: read the indictments yourself.

Federal Indictment

Georgia Indictment

Trump apologists are lying to you

Prominent Republicans, whether they’re Trump supporters, apologists, or announced candidates for the Republican nomination are speaking out against Tuesday’s indictment of former President Trump. In doing so, they’re deliberately missing the point, trying to couch it as a First Amendment issue, or saying things like, “If Trump is guilty of incitement for the Jan 6 riot, then Schumer and Sanders should be held accountable for incidents, too.” See, for example, Scott Walker’s comments. Or Marco Rubio’s tweet:

“Apparently it is now a crime to make statements challenging election results if a prosecutor decides those statements aren’t true.

“So when should we expect indictments of the democrat politicians who falsely claimed Russia hacked the 2016 election?”

I have two points to make.

First, not one of the four charges in the indictment has anything to do with incitement to riot or violence of any kind. The argument made by Scott Walker and others of his ilk is a red herring. Whether Trump, Schumer, or Sanders is guilty of incitement or similar is a separate issue that should not be conflated with the subject of this indictment.

Second, this is not a First Amendment issue. Item 3 in the introduction to the indictment (the second page) says:

“The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.”

If you read the indictment (and if you’re forming an opinion on it without first reading it, how can you have any confidence that your opinion is at all realistic?), you’ll see that the charges are for conspiracy, obstructing and impeding an official proceeding, and interfering with citizens’ right to vote and to have their votes counted. Specifically:

Count 1: From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.

Count 2: From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote, in violation of Title 18, United States Code, Section 1512(c)(2)

Count 3: From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.

Count 4: From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J . TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.

The indictment clearly lays out evidence of those conspiracies, detailing how the defendant was instrumental in organizing and putting in place an illegal scheme to create fraudulent electors in an attempt to change the election result in his favor. An election that he knew, as shown by his own words, that he had lost. This indictment is not about the President lying. No, this indictment is about the President’s participation in a conspiracy to overthrow the U.S. government using lies, false accusations, and intimidation to enlist others and justify his illegal actions.

The key point here is that the President of the United States attempted to seize power for himself after losing an election that he knew full well was free and fair. Anybody who calls himself a patriot, who believes in the rule of law and the principles on which this country was founded, should be demanding that he stand trial and, if convicted, be imprisoned. Donald Trump, in his attempt to retain power after losing the election, acted like any other thug ruler in history. He does not deserve your, or anybody’s, support.

Initial thoughts on Trump indictment #3

I spent a large part of the day reading the latest indictment of Donald Trump, this one for his role in the fake electors scheme following the 2020 election, and then letting it marinate in my brain for a while. These are initial thoughts, subject to revision after another reading and more cogitation.

Donald Trump, while President of the United States, used his band of paid intimidators (Elite Strike Force Legal Team) in an attempt to convince or coerce ordinary citizens, state officials, state legislators, federal government officials, and even the Vice President of the United States to fraudulently overturn the results of an election. An election result that, by his own admission, he knew was legitimate. In almost every case, those whom he attempted to enlist in his fraudulent scheme refused, often incurring the President’s wrath. The President fired some and publicly called out others, resulting in many of them receiving death threats and other abuse from Trump’s supporters.

I find it quite interesting that the indictment focuses almost exclusively on Trump’s words: opinions he expressed. You can expect sympathetic individuals to latch onto that and make a big deal of it, especially in light of Monday’s court ruling that, read broadly, essentially says that the President’s words, even if they’re knowingly false statements intended to deceive, are protected by Presidential immunity. But the ruling does not assert blanket immunity. Judge Erdos, who issued the ruling, said:

Other legal proceedings may examine the propriety of his statements and actions while he was the President and whether, as the plaintiffs in this and other cases contend, it was this conduct which served as the actual threat to our democracy. But this case is not the proper place to do so. Here, Trump is entitled to Presidential immunity.

In my opinion, Jack Smith would not have issued the indictment on Tuesday if all he had was Donald Trump’s words. The almost complete absence in the indictment of evidence showing or even hinting at Trump explicitly directing his subordinates or hired thugs to break the law is a red herring. I suspect Jack Smith is holding that back for now and will dribble it out as necessary. I think if he didn’t have clear evidence of Donald Trump breaking the law or directing others to break the law, he would not have released this indictment.

In my mind, there are two separate issues here. The key issue, of course, and the only one relevant to the legal proceedings is whether Donald Trump broke the law. That’s something we won’t know until trial. The second issue, and the one that’s more important in my mind, is whether Donald Trump’s statements and behavior described in the indictment are true. A trial could very well reveal that, as the indictment alleges, Trump knowingly lied in order to retain his office. And yet the jury could find him not guilty of committing a crime.

Imagine that were to happen. Would people still support him? Despite knowing that Donald Trump is, as I have maintained, a liar, cheat, grifter, con man, etc. who consistently made false statements about non-existent election irregularities, made knowingly false accusations of misconduct against innocent Americans, tried to convince his subordinates and personal staff to fraudulently overturn an election result, ultimately culminating in a riot on January 6, 2021 by those who believed his lies. All while standing behind his alleged “immunity,” knowing that if his scheme failed, somebody else would take the fall for it.

I think every American, even those who would support Trump, should read that indictment and subject their beliefs to some serious consideration. I find it inconceivable that the breadth of evidence revealed in that indictment could be fabricated, that every witness who testified could be convinced to lie under oath. I hope that any honest thinking person, regardless of how dedicated they are to the fraud that is Donald J. Trump, would come away with some serious questions about the former president. Regardless of your political beliefs, is that really the kind of person you want at the head of our government?