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Trump (and Georgia) On My Mind
One of my kids is studying law, and I’ve read a bit over her shoulder as she prepped for exams. Two critical things stand out: unlike in literature, words in the law have very specific meanings (lie, fraud, possess, assault), and intent matters quite a bit. The latter is very important, because people say things all the time they do not mean, such as “If Joe in Sales misses that deadline I’m gonna kill someone.” No one’s life is actually in danger, we all understand. Same for all those neighbors who were going to but never did move to Costa Rica if Trump was elected.
Misunderstanding words as moving from the general to the very specific when you pull them out of a conversation and try to bring them to court, and determining intent based on what you “believe,” are really at the root of the ever-growing string of failed legal actions against Trump (there are some 19 still pending.) We have, and this is just hitting the highlights, all of Russiagate, the Mueller Report, Impeachment I, Impeachment II, Stormy Daniels, failed accusations of real estate valuation fraud in New York and most recently, a grand jury seated to look into election fraud in Georgia.
For example, in Impeachment I, the Ukraine caper, the entire brouhaha hinged on Donald Trump’s own words in the transcript of his call with the Ukrainian president. But did they mean Trump was demanding foreign interference in the 2020 election? Or was he asking an ally to run down unethical actions by Joe Biden as a public service before he might become president? What was Trump’s intention when he said “A lot of people want to find out about that so whatever you can do with the attorney general would be great.” Later in the call Trump suggested some aid to Ukraine might be withheld, though not in specific reference to any investigation into Biden.
The people who brought the impeachment proceedings decided all that constituted an illegal solicitation of a foreign in-kind contribution to Trump’s re-election campaign, maybe even extortion. The allegation was referred to the Justice Department, which declined charges. Many Democrats though that unfair, failing to see the lack of anything coming of it (i.e., no investigation by Ukraine), the lack of anything withheld (the aid was eventually delivered) and overall the lack of intent to commit a crime by Trump. The legal definition tests for words like solicit and extort were not met and Justice correctly dumped the case and there was no conviction in the Senate.
Same story in New York, where the facts seemed to support Trump valued real estate at a lower price for tax purposes and a higher price when used as loan collateral. It’s called valuation and is legally done all the time. But some decided saying one thing to one person and another to another person to gain something was “fraud,” and everyone pursuing the case forgot that they also had to prove intent, that Trump lied with the intention to commit a crime and gain by ill begotten methods. The case rightfully collapsed.
Yep, same with the Stormy Daniels saga, where the facts seemed to be Trump, via Michael Cohen, paid money to Stormy to keep quiet about their affair. Sleazy enough, but paying someone as part of a non-disclosure agreement is not illegal. It would be a crime if the money was paid by Trump with the intent of influencing an election, which he suggested was not true, the cash-for-silence was maybe to protect his marriage. Campaign finance laws require proof a person was willfully violating the law. Prosecutors would have to demonstrate that willingness by Trump alongside showing his principal goal was to influence the election. If this kind of case would have ever reached court, Trump would have simply denied intent.
Another example can be found in the incitement allegations surrounding the speech Trump made just before his supporters entered the Capitol building January 6. A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a right to say so. Brandenburg v. Ohio refined the modern standard to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawlessness.
The key is always intent. You have to prove, not just speculate, the speaker wanted to cause violence. Listeners’ reaction to speech is not alone a basis for taking action against a speaker. You’d need to prove Trump wanted the crowd to attack the Capitol and set out to find the words to make that happen. It ain’t gonna fly for the January 6 Committee.
Which brings us to Georgia, where the NYT asks “Will Trump Face a Legal Reckoning in Georgia?” On January 2, 2020, facing an election loss, Trump called Georgia’s Secretary of State to demand he “find 11,780 votes,” one more than Joe Biden’s tally. Did Trump encourage the secretary to commit election fraud? That prosecution will fail, as did all of the ones above, for the same two reasons: words are not solely what they seem, and intent is hard to prove.
For example, to the Democratic lay person “find” means commit election fraud to come up with votes. But well before anything goes to court, it will be made clear that “find” in this context can also mean, in just one example, recount all legal ballots to see if a mistake can be found which legitimately sends more votes to Trump. The other issue is again intent; to prove solicitation of election fraud, Georgia law requires a person intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud. Trump and his associates need only to maintain they meant “find” as in recount, not as in cheat. Case closed.
In seeing the same mistakes made over and over, you’d start to think maybe the Democrats need some better lawyers. But don’t worry. Democratic lawyers know just as well as Republican lawyers none of these cases ever had a chance in a real court. Their purpose was purely political, to manufacture some headlines, to influence voters, to create the impression Trump has to be guilty of something if only he could be stopped from wriggling away. The goal is to convince voters to ignore the rule of law and take matters into their own hands in 2024 to stop Trump.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Two Truths, a Question and the Problem with Incitement
One truth is the 2020 campaign never really ended. On paper Joe Biden became president and Donald Trump became a real estate developer again, but in reality Biden is simply a placeholder and Trump an active candidate for the presidency in 2024.A second truth is in the law, unlike in propaganda and journalism as it is practiced today, words have very precise and specific meanings. Terms like assault, for example are well-defined by decades of case law. You can write gobbledy guck about things like a “verbal microaggressive assault” but that’s just for the rubes; don’t expect the case to make it to court. The same for terms like incitement, hate speech, and conspiracy. Never mind terrorism, treason or sedition.
The question is: after five years of failed, false accusations against Trump (Russiagate on down), how valid of an election strategy is it to twist vernacular definitions into quasi-legal ones? After so many instances of crying wolf (walls closing in, tick tock, etc,) will doing it all again over the events of January 6 actually win votes for the Democratic candidate, or will voters finally realize the Emperor’s arguments about Trump have no clothing and stay home?
Absent some Pearl Harbor-scale event, it is difficult to see what the Dems can run on in 2024. It is unlikely the Democrats will emerge from the 2022 midterms with a new majority, meaning all of their domestic agenda promises are shot. They are likely to lose the battle over Roe, and accomplish little on immigration other than the half-arsed decision to stop enforcing immigration law on the southern border. Even if Mother Nature casts a vote and cleans up Covid somehow, it will be difficult for Democrats to take much credit. They have no clear plan for unfutzing the economy and any progress made will be seen as catch-up at best. Tearing down statues and appointing transpeople only goes so far.
Their whole strategy for 2024 is to make people believe Trump tried to overthrow the Constitution on January 6, and having failed sulk away to embrace the electoral process and just run for president again. It’s a tough ask. Propaganda/journalism have failed to sway many minds. To succeed it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition. Some goofy tax problem in a New York state court or empty process crimes like “conspiracy to…” which dragged the Russiagate mess, will not be enough.
The issue? In the law, unlike in propaganda and journalism as it is practiced today, words have very precise and specific meanings. Problem One is there was no coup. Presided over by Trump non-accomplice Mike Pence, Congress did its job. Biden took office. Trump went home. The rioters went home. After a year of efforts none of the 700 some prosecutions have been for anything close to sedition or treason, mostly just fluffy versions of trespassing. None claimed they acted on orders from Trump, Don Jr. or the Pillow Guy. Despite all the over-blown Powerpoints and texts, there was no realistic path toward a coup taking place. That is a very high bar to climb over and prove something serious like treason. You need a fire to prove arson.
So the Dems and media are left with some lawyering to do, in their minds the equivalent of taking down Al Capone on tax violations. The problem is Capone really did fail to pay taxes. Trump’s actions were instead legal under the First Amendment. The smoking gun can’t have been loaded with blanks.
So the focus ends up on the one thing Trump actually did do on January 6, speak at the Stop the Steal rally. Dems argue his words constitute incitement. You can reread them, but it would be more productive to spend some time learning what actually is and is not incitement.
A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates or stirs up the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a Constitutional right to say so. Democracy could not exist if the law held every speaker responsible for whatever people who heard him talk did later. A finer line was needed.The first try at restricting “dangerous speech” was Schenck v. United States, which produced the misunderstood line about not shouting Fire! in a crowded theatre. It would be for the later case of Brandenburg v. Ohio to refine the modern standard for restricting speech. It tightened the criteria to 1) the speech explicitly or implicitly encouraged the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) the imminent use of violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s statement on what government may do about speech that seeks to incite others to lawless action.The key to Brandenburg is intent. You have to prove, not just speculate, the speaker wanted to cause violence. A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking action against a speaker. The speaker had to clearly want to cause some specific illegal act. You need to prove Trump wanted the crowd to attack the Capitol (he instead tells them to walk there and cheer on the legislators “who do the right thing” and “to peacefully and patriotically make your voices heard”) and set out to find the words to make that happen.
In the 1982 Claiborne v. NAACP the Court ruled civil rights leaders were not responsible for a crowd which, after hearing them speak, burned down a white man’s store. The state’s argument, rejected by the Court, was that no matter how they disguised their codewords and dog whistles, the leaders just knew their inflammatory rhetoric would drive the crowd to violence. Nope, said the Court, the standard is simple, the actual words spoken.
The law is similar for sedition, seeking to overthrow the government by force. This is intimately tied to the concept of free speech in that any true attempt at illegal overthrow, as well as any legitimate criticism of the government, will both include persuasion and stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy. The law requires the government prove someone conspired to use force to overthrow the government. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. That’s why no one from January 6 has been or will be charged with sedition or treason or anything similar. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. Actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition. But that’s not what happened with Trump on January 6.
Most of the rest of the guff around Trump and January 6 is even emptier of substance, things like “giving aid or comfort” to those committing sedition, conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States, or corruptly impede any official proceeding. The Dems focus in this sphere is on what Trump did not do to stop the riot, particularly his taking three hours to issue a video request for the rioters to go home. The over-arching problem is that crimes generally require you to do something. Not doing things, or not doing them fast enough to the Dems satisfaction, is hardly a chargeable crime.
The clearest sign there is nothing real behind the exaggerated claims surrounding January 6 is that after an impeachment, a calendar year passing, and 700 some low-level prosecutions, nothing much has been proven. As with Russiagate, the more time that passes with nothing but media-generated smoke the less likely there is anything more. Even die-hard Trump Derangement Syndrome sufferers like Laurence Tribe are reduced to weakly calling for more robust investigations instead of beating the drum for execution. Time for the left to lump Merrick Garland in with Robert Mueller as a great failure.
There is certainly room to judge Trump’s actions on January 6. But that judgement must come from the voters, not a kangaroo court, if you want to talk about preserving the rule of law.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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