I’m on vacation, but I still follow what’s going on, and for the last couple of days I’ve been worrying about something. Both Bryan and Phillip touched on it yesterday. They said,
Of course I’m not a lawyer, but what about speech in the position of power as POTUS in service of furthering a conspiracy against the US? Not the lies per se, but larger goal & conspiracy of which they were a part, to end a 220-yr tradition of lawful transfer of office?
— Phillip Bush (@PhillipBush) August 2, 2023
OK, they may not have touched on it directly, but they got me going with the worrying again, and here’s what I’m concerned about…
Well, if I’m reading these accounts correctly, the case is built on him UNDERSTANDING he lost the election. So he was lying when he said he had won it, making his efforts to overthrow the results — and incite the crowd to disrupt the process — an act of intentional criminality.
That worries me. Because I’m not sure you can demonstrate he understands ANYTHING…
With him, it gets back to the questions I’ve been asking about this guy since 2016. When he does the things he does and says the things he says, is he demonstrating that he is:
Evil? In other words, when he says something wildly untrue and acts upon it, does he actually know the facts, and is pretending not to?
Stupid? Does he say and do these things because he is so amazingly dumb that he doesn’t know any better?
Crazy? Is his brain damaged or does he have the wrong chemicals flowing through it, and that causes him to do and say things that are inexplicable and inexcusable to a sane person?
Of course, the more I think about it, the more I realize that these are neat, separate categories only in our own imaginations. They can overlap and bleed over into each other.
But that’s not my point. My point is, is this indictment, about something of supreme importance to this nation, based on a shaky foundation? Can a prosecutor satisfactorily prove that this idiot whack job was actually lying when he kept telling gullible people that he truly believed the election had been stolen from him, and them?
I’m not sure any of this can stick if they can’t prove that. Maybe they don’t have to. Maybe I’m being kind of dense myself. I hope so. Tell me that, and convince me.
So far, the things I’ve read — this, for instance, or this — feed my worry.
Because if this case can’t be presented so that it results in such a convincing “guilty” verdict that even his loyal supporters understand and accept it, this country is never going to be able to move on from the trauma of the last few years.
And that would put the continued existence of the United States at serious risk…
Related Posts
https://open.substack.com/pub/joycevance/p/how-to-read-the-indictment?r=en7ko&utm_medium=ios&utm_campaign=post
Former Federal prosecutor, Joyce Vance, does a great job explaining it.
I think the scariest part of all is that it appears ALL the Republicans and half of America believe Trump’s lie that the election was stolen. That gets to the heart of the traumatic future we may be facing. These people believe Trump can do no wrong and they are following him like sheep to the slaughter.
There was a story a few weeks back about Republicans in Congress scared that “Conservative” (whatever that means now) voters had bought the lie and they didn’t really know how to approach supporters that believed such an obvious lie.
They can only look in the mirror though. They entertained that notion too long.
I recall a story right after the election where a high profile Republican member of Congress mentioned to a reporter “what harm can it do to let him (Trump) fuss a bit about the election”
we found out.
“whatever that means now”
To help clarify, the word does NOT mean the things it is almost always used to refer to today — not only by the people who flatter themselves using that label, but by most journalists who write about them.
This is a form of contempt for the English language. But if forced to, I can defend it on the part of the journalists… Their worship of the almighty god “objectivity” (a form of worship that among other things caused me to switch to opinion in 1994) requires that they not call anything what it really is. So they write “conservatives” instead of “lunatics.”
I suppose you can make excuses for the MAGA people, too. I’m pretty sure that none of them know what the word means…
Modern conservatism originated, in the main, as a defense of the Old Order (monarchy, aristocracy — in other words, social and political hierarchy) against practically any manner of change. Traditionally, therefore, a conservative movement, by its very naure, defended established priviledge and leaned on the power of government for the protection of priviledge.
An element of this is indeed still present in MAGA-ism, or whatever one may choose to call it. It exists in the urge to maintain certain traditional definitions and political preferences that privilege those who consider themselves part of it: overwhelmingly White, middle class social and economic conservatives.
In any event, what is considered “right” and what is considered “left” on the political spectrum is largely defined by the context in which those terms are being defined. The Republican Party is considered a conservative party in the US, though by international comparison it is generally on the far right margin of that spectrum.
You overcomplicate it by working in the business about “privilege.” It’s simpler than that (you don’t often hear me say that, do you?). As you say, it’s about resisting change. Embracing the traditional, the tried-and-true, etc. If the tradition were a classless, hyperdemocratic society, that would be what the conservative advocated to keep. As you also say, a matter of context.
It’s about conserving, rather than tearing-down.
And there is no trace of conservation in the MAGA approach, which is all about destruction. Yes, I know they say they are out to “make America great again,” but these are people who have no notion of what has made America great. They have vague notions of things they don’t like and want to change, and they will destroy anything that stands in their way. They’re not even proper reactionaries, much less conservatives.
A simple photograph from the chaos on Jan. 6 utterly destroys any claim they might have on being conservative. These people are anarchists, and nihilists. They want to rend and destroy our nation’s institutions.
Conservatives love and cherish established institutions.
“You overcomplicate it by working in the business about ‘privilege.’”
Nope, not at all. It’s part of the classic definition of conservatism.
You are merely tendentiously tweaking your description to make it as congenial as possible to a worldview you identify with (not to call it part of your own identity politics, heaven forbid!).
“And there is no trace of conservation in the MAGA approach”
Absolutely there is. You just don’t want to see it. MAGAs only tear down in the sense of, in their view, restoring what they see as a traditional “natural” order. Which makes them entirely within the conservative political spectrum. Jan. 6th was, in MAGA world, a counter-revolutionary restoration of “Constitutional” order.
Absolutely there is not.
Sorry, but your assertions don’t hold together. The kinds of people who attacked the Capitol are far from “privileged.” Even in your Identity Politics sense of privileged, these are folks like the Southern poor whites who believed their social superiors when they told them that at least they were better than somebody, however outlandishly absurd the assertion was.
These people are more Jacobin than Jacobite…
But we’re not going to agree, so…
The resentments that underpin support for Trump grew from fears over loss of status, cultural displacement and the like. In other words, a perceived loss of assumed privileges. Just one sample — from a source you may occasionally read:
https://www.nytimes.com/2018/04/24/us/politics/trump-economic-anxiety.html
From the article:
“[The post-election] survey also assessed ‘social dominance orientation,’ a common psychological measure of a person’s belief in hierarchy as necessary and inherent to a society. People who exhibited a growing belief in such group dominance were also more likely to move toward Mr. Trump, Dr. Mutz found, reflecting their hope that the status quo be protected.
The other surveys supported the cultural anxiety explanation, too.
For example, Trump support was linked to a belief that high-status groups, such as whites, Christians or men, faced more discrimination than low-status groups, like minorities, Muslims or women….”
No, we don’t agree — because the evidence does not operate in your favor.
Oh, come now — we all know those people (or many of them) have Identity Politics fantasies based in whiteness or maleness or whatever. Which is the kind of thing that hid in the shadows until Trump came along, which is one of the reasons they love him.
But I expect if you keep reading in the NYT, you’ll also find a lot of explanation of how much of Trump’s support is people who are far from privileged, who never have been privileged, and who likely never would be. There have always been such people, and up to that point they have my sympathy. But now they live in an atmosphere in which they are encouraged to resent it, and want to tear down everything that they believe keeps them this way.
Of course, I don’t think that’s THE thing that explains them, either… Although in a way it’s sort of related to what David Brooks said in his column yesterday:
It was a good piece. It doesn’t fully explain our troubles any more than your “privilege” answer does. But it was pretty good…
I’ve said it before, but it bears repeating: “Stop the Steal” was about more than just the 2020 election. What was supposedly being stolen, in the eyes of those who thought and think this way, was the country itself. Somebody or something was stealing it away from them, the “it” being the privileges they felt they once enjoyed as “mainstream” Americans. (And just to be clear, privilege here doesn’t refer to material comfort or economic advantages but rather to cultural hegemony.) It’s an attitude that first showed itself in the so-called tea party movement. It took clearer form in events like the “Take Our Country Back” rallies in 2012. The phrase — We need to take our country back — itself expressed the feeling that some folks had that they’d lost it to some group other than themselves. Just a few years later, Donald Trump became their champion in getting it back. Then, in 2020, they felt like they were on the brink of losing it again — which sent some of them to the Capitol. Though the feeling is shared among a much broader swath of the population. …
[edited]
I couldn’t think of a better way to tell you, via this medium, to try one more time, without the completely gratuitous personal slap at the end. I mean, if I don’t approve it, I can’t answer it.
So I just cut the unnecessary part out, and approved it….
Oh, and on that other thing you keep trying to post…
Try some other forum that would welcome your grossly insulting characterization of people who disagree with you on abortion.
Maybe NARAL has a blog. They dig stuff like that…
To follow up on your follow-up:
Ah, Jeannie, we miss you!
Why’d you have to get that nose job? You looked so great…
Good thread from law professor Noah Rosenblum explaining the issue
Noah’s bio
Noah A. Rosenblum is an assistant professor of law at New York University School of Law, where he was previously the Samuel I. Golieb Fellow in Legal History. Rosenblum works on state and federal administrative law, constitutional law, and legal history, and is a frequent commentator on the New York State judiciary.
Rosenblum graduated from Deep Springs and Harvard College, earned his JD from Yale Law School, and received his PhD in history from Columbia University. Before joining NYU, he clerked for Judge Jenny Rivera of the New York Court of Appeals and Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit
https://twitter.com/narosenblum/status/1686546345086140417?s=20
These are the folks that Trump cult members and right wingers present as elevating Christianity and God in America.
Jason Miller- one of Trump’s former and current top advisors testified under oath that they all knew the election wasn’t stolen. Some of his emails/notes, etc might be pretty helpful to the prosecution.
Miller cheated on his wife with another Republican and Trump campaign operative and fathered her baby. She was also married. Jason also had a habit of hiring prostitutes.
Miller, who represented himself as pro-life when running Trump’s 2016 campaign, tried very hard to get his mistress to have an abortion. She refused. Then he refused to pay child support and the case was in court for a long time because the mom – a former frequent Fox News guest- fought him in court. She said Miller wouldn’t even acknowledge his own child. No wonder Trump likes him.
Jack Smith has a lot of his tools in his tool-box- and Mark Meadows has been very, very quiet. Chances are he’s supplied them with some pretty hard evidence.
”that even his loyal supporters understand and accept”
That sets the bar far too high. It demands a degree of consensus that does not exist and calls on the legal system to create that consensus, which really puts the cart before the horse. It effectively gives delusion and extremism a veto over the rule of law.
These latest charges demonstrate how democracy attempts to defend itself. Democracy may indeed lose. But that won’t be the fault of Jack Smith or the DOJ in holding Trump accountable for his attacks on it.
Also, I don’t know why this stuff about incitement has been brought into the picture. Trump is not charged with incitement. The word does not appear anywhere in the charging documents. He is charged with fraud, obstruction and conspiracy to obstruct as well as conspiracy against rights. This is about more than just January 6th. That event was only one cumulative effect of multiple actions on his part. As several lawyers have pointed out in recent days, this is about actions, not speech.
Yep.
This is about conduct not protected speech. Vance lays this out succinctly. As POTUS Trump could exert a great deal of influence over the actions of others. It was really not necessary to believe what he was asserting was true. It is only necessary to show his action went beyond the normal court processes. File appeals til the cows come home but at the end of the day once these are exhausted actions to remain in power cross a legal line. This is clearly not a first amendment matter.
Bud is absolutely right when he says, “As POTUS Trump could exert a great deal of influence over the actions of others.” More than that, this was an astoundingly vindictive narcissist, so the people around him (who might not have held such positions under any normal, sane president), knew that it was risky to tell him anything he didn’t want to hear. And we’re not talking about the bravest, most principle bunch of people here.
For that reason, it astounds me that quite a few of them dared to tell him the truth — that there was no fraud, that he lost the election. Mini-profiles in courage?…
Would a narcissist like Trump allow his lawyers to argue that he was incapable of understanding that he had lost?
I’m betting on Evil.
The indictment has at least two points were it seems clear he understood. At one point he refers to a co-conspirator’s claims as “crazy.” Later on he tells Pence, “You’re too honest.” It’s clear to me he knew, so I guess they won’t be calling me for jury duty…
Yep, you blew your chance there…
To answer Bryan’s tweet
(Bryan is an attorney, right?)
Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include perjury, obscenity, fraud, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, libel,
People sure do seem to jump through a lot of hoops to try to protect Donald Trump – a politician.
I don’t think Bryan is so much trying to protect Trump as he is pointing to what he regards as a flaw in the indictment…
I disagree. I think Bryan goes out of his way to defend Trump (while trying to appear he isn’t)
I mean his statement says the only type of speech that can be criminalized is direct incitement to commit a crime. That’s clearly not accurate.
the First Amendment does not protect speech in furtherance of a crime.
“Soliciting a crime, planning a crime, and committing fraud are all activities that are made of words that subject people to criminal penalties all the time.” Leslie Kendrick, a law professor and director of the Center for the First Amendment at the University of Virginia
Slander can be a crime. It doesn’t have to incite someone to commit a crime. Example —
spreading made up rumors about Joe Bob at a community club meeting
Joe Bob cheated on his wife. and now has HIV. He took the girl he’s cheating with out to ABC diner. That’s where he got food poisoning because they use spoiled food there. They should shut that diner down. I can’t believe (Name of Employer) still has him on the payroll.
That speech could be a crime. But the person that says it is not inciting someone to commit a crime.
From Factcheck.org
The indictment acknowledges that Trump “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.” But it charges that Trump did more than simply make false claims — he “pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies.”
Bill Barr, a former attorney general during the Trump administration, said in an interview with CNN that he didn’t think the First Amendment defense for Trump was “a valid argument, because, as the indictment says, they’re not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can even tell people that the election was stolen, when he knew better. But that does not protect you, from entering into a conspiracy. All conspiracies involve speech. And all fraud involves speech. So, free speech doesn’t give you the right, to engage in a fraudulent conspiracy.”
“Courts are and should be very careful about imposing any kind of legal liability for political speech,” Gregory Magarian, a law professor at the Washington University in St. Louis and an expert in free speech and constitutional law, told us in a phone interview. But the indictment includes “very conventional” charges — conspiracy and obstruction charges. There’s “no First Amendment question about the viability in general of those legal provisions.”
Magarian said the First Amendment argument was “a phantom argument,” against a charge that isn’t in the indictment
It’s worth keeping in mind that the country would not be dealing with any of this had not a big chunk of Americans exercised such blitheringly bad judgment in 2016. (Not the majority, of course, but enough in the right parts of the electoral map.) We have them (with an assist from the Electoral College) to thank for all of this.
Absolutely.
Trump has never been The Problem. He’s just the most wretched and best-known personification of the The Problem…
If democracy falls in America, it will be at the hands of these people. If democracy falls in America, it won’t fall to figures in black shirts or grim tiki-torch marchers. It will fall under banners sporting words like “Liberty” and “God,” “The American Way” and similar bumper-stickerisms, It will fall to figures wrapped in American flags shouting “Freedom!” while pretending to be Willaim Wallace on a rack being cranked by “radical leftists.”
And they will receive a big assist from a phalanx of lawyers, like the coterie of co-conspirators in the latest DOJ indictment (ALL of whom are lawyers), demonstrating their skill at rendering the law a shell from which justice, fairness, truth, and equality have been neatly excised.
Your mention of William Wallace makes me think about people today who still consider the death penalty to be a deterrent.
He was drawn and quartered, and yet people (including some on my family tree) still did things for which the penalty was being drawn and quartered.
It also reminds me how much I disliked Braveheart. That was the beginning of Mel Gibson’s sadomasochism phase, making movies in which the hero would be persecuted, and/or tortured and/or killed — or his loved ones would be, or both.
Braveheart
Conspiracy Theory
The Patriot
Passion of the Christ
And I’m probably forgetting some, or just didn’t see them.
Jesus was crucified, a death that is so horrible that most people have no idea how terrible it was. But it took Mel Gibson to make people say, “Don’t you think he overdid it a little?” I refer specifically to the wounds from the 39 lashes — they seemed to cover every square inch of the Savior’s body. Which is not realistic. It was obsessive. I went to the movie with two Jewish friends who were concerned with the anti-Semitic messages. But I remember the blood more than that.
The thing is, he’s done some really good work, with my favorite being The Year of Living Dangerously. But then he got to be a big-enough star that he had the power to indulge his obsessions…
Freedom from Consequences is not a protected Constitutional right.
I don’t think Trump will or should be convicted of a crime for any of this nonsense. At the same time, no sane person should vote for him or Biden for President anyway. That either of them is considered the best option for America speaks volumes about how stupid voters are generally.
Are there still morons who think Russians got Trump elected in 2016? They’re as bad as the maga January 6 crowd.
Doug, I hope you have that stuff saved so you can just copy and paste it. I hate to think of the time you’d waste typing it over and over…
If Trump broke a law and a jury finds he did, he should face whatever sentence is available.
It’s not lost on me that the guy that encouraged his supporters to froth at the mouth to put his political enemy in the 2016 election in jail might face conviction in federal court and his supporters and right wingers most everywhere think it’s out of bounds that he face what they all want H. Clinton to face.
Here’s something I’ve been struggling with. All my life I’ve heard that ignorance is no excuse for breaking the law. If you drive 50 mph through a school zone you can’t claim you were unaware of the speed limit change when school lets out. But that seems to be what Trump is claiming. If he can plausibly claim he thought he actually did win the election then he committed no crime? But if he actually knew he lost but committed the exact same actions then it would be a crime? That makes no sense.
I was thinking the same thing the other day.
But I’ve always been sort of fuzzy on whether that oft-repeated maxim is 100 percent true. Maybe Bryan or another attorney could help us with that…
“But that seems to be what Trump is claiming. If he can plausibly claim he thought he actually did win the election then he committed no crime?”
If all a politician has to do is say he really believes he won, that’s a license to do almost anything.
I know that’s Trump’s argument and the argument most all Conservatives are trying to use, but we all know they’d never agree with it if a Democrat used the same tactics.
Folks, just please read the indictment. It’s not hard to read.
The charges are not about what DJT thought or believed to be true.
It’s about what he did — especially with regard to the false electors scheme.
And to the extent it does address the “what he knew” issue, it deals with it in Sec. 11(a)-(h).
I am watching this with Filipina Princess Ana Liza. So appropriate for us as she is in the Philippines for now. She is stunningly gorgeous – and we will try to recreate some of these photos together.
Thank you Bill!
Liza loves this song so it is “Our Song” – https://youtu.be/4fm6J0NmrHo?si=8fsoCInji4SpfWuh
I am blessed.
Glad to hear you’re digging life, Bob…
I wondered where all the princesses went…
Filipina Queen great loss. Tired warrior comes home somehow alive. Multi-culturalism and diversity are goals for which society should strive.
We want children. Blue eyes WASP marries Polynesian beauty.
Yes Brad. I am digging life. But I am tired. Hey Captain thanks. Of course you have a fine son.
I haven’t shot anybody.
Out.
Boy HOWDY! Ana Liza a bit lighter in skin, long black hair. But striking – sorta like Lady Wray.
It was announced yesterday politicians have discovered the cause of pregnancy. I am becoming younger – for a while.
See ya!
Trump is going to Prison. Close to Treason! Yet how many of our friends are still drinking the Kool-Aide.
Scary.