Said Harvard lawprof and former public defender, quoted in "How Jack Smith Structured the Trump Election Indictment to Reduce Risks/The special counsel layered varied charges atop the same facts, while sidestepping a free-speech question by not charging incitement" (NYT).
Low-hanging fruit?
For one, Mr. Smith said little about the violent events of Jan. 6, leaving out vast amounts of evidence in the report by a House committee that separately investigated the matter. He focused more on a brazen plan to recruit false slates of electors from swing states and a pressure campaign on Vice President Mike Pence to block the congressional certification of Joseph R. Biden Jr.’s victory.
That choice dovetails with Mr. Smith’s decision not to charge Mr. Trump with inciting an insurrection or seditious conspiracy — potential charges the House committee recommended. By eschewing them, he avoided having the case focus on the inflammatory but occasionally ambiguous remarks Mr. Trump made to his supporters as they morphed into a mob, avoiding tough First Amendment objections that defense lawyers could raise....
Mr. Trump’s lawyers have signaled they will argue that he had a First Amendment right to say whatever he wanted. Indeed, the indictment acknowledged that it was not illegal in and of itself for Mr. Trump to lie.
But in portraying Mr. Trump’s falsehoods as “integral to his criminal plans,” Mr. Smith suggested he would frame those public statements as contributing to unlawful actions and as evidence they were undertaken with bad intentions, not as crimes in and of themselves....
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52 comments:
The other day - CNN spliced Trump's J6 comments to change the context and meaning.
Journalism!(D)
Trump falsely thought Mike Pence could fly in like a super-hero side kick and change the "results" of the election. Pence alone, does not have that power.
So what?
Trump left office peacefully. Trump is allowed to seek justice over what looked on the face of it like a "rigged" election. Suspicious counting methods... suspicious vote totals that skewed in unlikely mathematical jumps for Biden... and other suspicious activity. Like the gal that kept feeding the same pile of ballots through the machine... and the precincts that closed *wink* for the night, and then re-opened in the dead of night without any supervision ... and on and on...
Pence didn’t do what Trump wanted. The so-called Fake Electors never cast a vote in The Electoral College. The House never recognized them. What’s the problem?
Jack Smith, Clinton's, Biden's... etc = The seven deadly sins wrapped in a turd.
2023 Republican leadership: "Joe Biden lied about actually talking to Hunter's business associates. Impeach him."
Also 2023 Republican leadership: "So what if Trump lied about the election having been stolen? He has a First Amendment right to say what he wants. Even lies."
It would be funny if it wasn’t blatant election interference.
can't EVERYONE just Admit..
That Trump TRIED to overthrow the democrat party? This is a capital crime.
Low-hanging fruit? Yes, as in sour grapes.
The thought police have come for Trump. Anyone who thinks this will end with Trump is a fool.
Those criminal plans are the procedure outlined for settling Presidential election disputes in the Constitution. Rival slates of electors.
But in portraying Mr. Trump’s falsehoods as “integral to his criminal plans,” Mr. Smith suggested he would frame those public statements as contributing to unlawful actions and as evidence they were undertaken with bad intentions, not as crimes in and of themselves...
So what is the putative criminal actus reus on Trump's part that doesn't violate Trump's free speech rights?
Oh, I see. Trump’s words weren’t criminal, they just facilitated criminality. What we’re supposed to focus on is his (clumsy, belated, failed, flailing) efforts to challenge what he (and about 70% of the public) saw as a slow-motion coup. Whatever he undertook was felonious.
I thought due process rested on a body of law that was fixed and comprehensible to the average mortal. I was wrong.
Glenn Reynolds’ Instapundit comment site has been rendered useless by the mad dog ranters, vendettas, graphic blast posters and childish cursing. If you are friends with him, Althouse, please suggest comment moderation to him. At first, I was opposed to your comment moderation, but it has been effective.
Instapundit’s comments site is an embarrassment to conservatives. Change is needed.
They have this case in front of a DC judge who frequently donates her salary to the Democrats. She donated to Barack Obama 11 times, according to the FEC. She worked in the same DC law firm as Hunter Biden. The jury will be comprised of Democrat Party donors. Smith has already had to admit to prosecutorial misconduct (withholding evidence), which he has been accused of several times in previous cases that had to be thrown out. Yet he's still allowed to practice law, despite previous frauds on the courts.
There is simply no way Smith can lose this case. It will get overturned on appeals years and years from now after Trump is left destitute to attorney's fees, but that is hardly the point.
It will prevent Donald Trump from ever being President again, thus rigging the 2024 election. That is its only purpose. And it will work.
Not that it matters, since law here is just a tool with which to beat an enemy, but:
“integral to his criminal plans”
To "recruit false slates"?
The strength of the indictment is that it serves prog purposes. Which is enough.
If it was Pence's constitutional role to show up on January 6 and count the votes, and Trump had prevailed upon him not to show up -- e.g., to spend the rest of month in Indiana -- it would be easy enough to characterize Pence as having failed to perform one of the duties of his office. However, it wouldn't be a crime. Impeachable, yes; but not criminal. It's not a crime for the president, vice president, or members of Congress not to do what the Constitution calls upon them to do in good faith. Such derelictions of duty are for the voters to address, or for impeachment.
The dem party has become fundamentally authoritarian. It's no longer a political party that seeks to compete for influence by persuading others of the merit of its ideas. It's more like a gang that seeks to gain power by shutting down debate and criminalizing the opposition.
Low-hanging in any fruit-based republic.
More mush from the wimp that is the NY Times. It's intelligent editors and writers are now on Substack.
Kafka would be jealous. DT conspired to engage in unlawful criminality. I expect to see this on the lists of self congratulatory tautologies that some progressives still have on their front lawns in my LA neighborhood, next to "we believe in science" and "love is love".
I, for one, look forward to the way Republicans avoid doing the same to their Dem counterparts in future. They'll have to writhe enough to pass through a corkscrew sideways, but I suspect they will manage to maintain comity and civility bullshit instead of retribution.
The First Amendment can be so inconvenient at times, we’re lucky to have Jack Smith show us how to circumvent it.
Jack Smith doesn't care if he wins a Trump conviction. Smith's and Democrats goal is to win the next presidential election. Their goal is hobble the Republicans. The Trump indictments are a tool. Pure political prosecution, lawfare par excellence.
"Narrowly written?" Bwahahaha! How stupid is this guy?
I've drafted hundreds of indictments. The trick is bare bones allegations not the narratives for the mediaswine Smith favors. Smith has opened the door for Trump to litigate the legitimacy of the election. He may be relying on the Obot judge to stifle Trump's defenses, but the indictment is not "narrowly written."
Most of the analyses assert that the indictment is an affront to the First Amendment. Some have suggested it ought not to survive a motion to dismiss. Dershowitz suggested that in the event of a loss Smith himself might be prosecuted for conspiring to violate Trump's rights. Of course, with a DC jury and an Obot judge none of that law stuff matters.
Is there something about Don Trump in particular that interests you? Or are you just drawn to his proclamations of self-importance, the blind devotion of his followers, the interest his crimes attract?
It really does seem like there’s a personal interest you have in this guy that goes beyond the facts of whatever he’s done or their significance. His followers and defenders seem to also lack an objective interest in him.
But it’s your blog. Feel free to explain or not. “Cruel neutrality” is kind of a facade though when there’s always a choice of what topics to cover, even when hiding behind direct quotes to which no further commentary is added.
Justice is a good thing. Way more important than political celebrity for conservative Trump fanboys and fangirls, or preserving his image of invincibility. It’s interesting that you don’t seem to want to address that basic conflict in our politics.
A group of men decide they want to rob a bank. On a Wednesday morning, they text all the bank employees that a package containing anthrax has been left in the bank. The employees vacate the premises, and the bank robbers, having hidden in the mens room, rob the bank.
Did the robbers have a First Amendment right to text the employees about the anthrax?
More broadly, when a lie is conceived and spread in service of a criminal object, be it to rob a bank or interfere with the counting of electoral ballots, is it correct that the First Amendment protects the liar?
These jackals seem to believe that their grip on power will last indefinitely.
- Krumhorn
It’s time for articles of impeachment. PAYBACKS
- Krumhorn
Just think, win or lose, that guy will probably be asked to teach law somewhere…
Trump did nothing different than Hillary and other Democrats had done re: objecting to certification, alternate slates of electors, and all the rest. This case is going to explode in Jack Vyshinsky's face.
Smith is well established as a hack prosecutor who regularly commits misconduct that is, mysteriously, never punished. He was selected for this job because he is a hack with no morals who is willing to do anything.
I am starting to think that firing everyone in the federal government and starting from scratch would be a net positive.
Prosecuting speech is running head long into First Amendment objections, but for argument sake, let's say the speech may not be protected. If you then claim the speech is ambiguous, then I, as juror, would have reasonable doubt that the speech is not protected or was inflammatory. Perhaps it is the prosecutor interpretation of the speech that is inflammatory, but being ambiguous, someone else sees at as a call to peacefully protest.
It is not like Trump announced ahead of time that he would pay for the bail of anybody arrested on Jan. 6th. That is something Democrats like Kamala Harris does. It was unambiguous that Kamala expected BLM protesters to commit crimes for which they would be arrested and that she would back them if they did. How is that not inflammatory?
"That choice dovetails with Mr. Smith’s decision not to charge Mr. Trump with inciting an insurrection or seditious conspiracy" - yet. We're probably not out of Biden scandals that need to be drowned out by a Trump indictment.
Smith must have confidence in a biased Jury Panel to accept a case using hybrid charges. They sound like guilty things that should be illegal, but they are not statutory crimes at all. That might work in a NYC Civil case only seeking damages like the RAPE case in NYC which was a “libel case” for Trump denying the victim’s accusations.
Next the Special Prosecutor will indict Trump for breathing while contesting an election. Sure enough he did breath the whole time.
The indictment is a dog's breakfast of vague and contradictory claims that do not allege an actual crime even on their face.
The democrat party deep state is setting a precedent that will diminish democracy and the country. Like the judicial filibuster repeal they will end up regretting this terrible action when one of theirs is hauled into the dock.
The democrat party deep state is setting a precedent that will diminish democracy and the country. Like the judicial filibuster repeal they will end up regretting this terrible action when one of theirs is hauled into the dock.
They indicted Trump under a law that carries a possible penalty of death. How is that “narrowly tailored.”
And it’s obvious that if Trump is threatened with death, this country will become unhinged.
For a 'former public defender," that take on the indictment is really strange.
The legal theory for the conspiracy/obstruction charges all turn on a fraud theory based on some really old cases (1910/1920 vintage) for the proposition that lying that impacts the government in some highly attentuated way can be a crime. Those cases were all decided long before the Supreme Court had ever applied the First Amendment to strike down a statute, which first occurred in Stromberg v. California (1931). Not surprisingly, those old cases have been repudiated in a long string of decisions, over the last 30 years, holding clearly that federal anti-fraud statutes require proof that obtaining money or property was the object of the scheme. When phrased in terms of deprivation of "honest services" or bribery, the object of the scheme has to involve obtaining money via a bribe or a kickback. That was McDonnell v. US (2015), a unanimous decision. Most recent decisions in that line of cases came this term -- Ciminelli v. US and Percoco v. US, decided a few months ago and both unanimous decisions, but they built on Skilling v. US (2010); Cleveland v. US, a unanimous decision by RBG (2000); and McNally v. US (1987), among many others over the years. The reasoning of those cases, all of which turned on the impact that applying anti-fraud or bribery statutes outside the core area of the normal meaning of "fraud" or "bribe" would have on First Amendment values, is obviously applicable to Trump's ridiculous claims that he lost the 2020 election because of election fraud. Those cases all stand for the proposition that these federal statutes do not adopt some general code of ethics that prosecutors can use to make up new crimes outside the core areas of these statutes -- McDonnell says that quite clearly.
It's possible that a court will try to draw a distinction between that long line of cases and Smith's indictment here. Lefties are clearly betting that the District Judge -- herself a former public defender -- will bend over backwards, for all the wrong reasons, to reach that result. Better to assume that the judge will act judiciously and apply the law fairly to a criminal defendant she may well loathe. But I doubt that this Harvard professor/former public defender is counting on that, and pretty sure he doesn't want that.
NYT now has no problem with Genocide. Kill the Boers. Its just a saying is all.
And here, the NYT gets a daily endorsement.
Low-hanging fruit?For one, Mr. Smith said little about the violent events of Jan. 6, leaving out vast amounts of evidence in the report by a House committee that separately investigated the matter.
That would be the House Committee that fraudulently edited the video from the day?
The one whose every claim was blown up once Tucker Carlson was given a free hand to go through the video and expose all the things the Democrats left out?
He focused more on a brazen plan to recruit false slates of electors from swing states and a pressure campaign on Vice President Mike Pence to block the congressional certification of Joseph R. Biden Jr.’s victory.
That Trump! he "brazenly" tried to get honest electors to represent the actual will of the State's voters, rather than the ones raised up by Democrat vote fraud!
Indeed, the indictment acknowledged that it was not illegal in and of itself for Mr. Trump to lie. But in portraying Mr. Trump’s falsehoods as “integral to his criminal plans,”
So, since trying to steal an election is a crime, we can then criminally prosecute any Democrat who supported Gore post, or even pre, Bush v Gore in 2000?
Every Democrat who supported "The Resistance" against Trump is a criminal who needs to go to jail? Everyone in America who passed around the "Trump Russia Collusion" lies can be thrown in jail?
Works for me
hpudding @ 9:57: "...But it’s your blog. Feel free to explain or not."
That's mighty generous of you, conceding to Prof. A the right to attempt to supply some explanation that might, just might, please your most discerning eye.
You're an odd one. Most of the people here I find to be pretty serious, interested in making a point and accepting correction. A few are IMHO passionately wrong. But only one or two are outright jerks. You? I think the jury is still out; but not for much longer.
Chuck said...
2023 Republican leadership: "Joe Biden lied about actually talking to Hunter's business associates. Impeach him."
So Chuck is letting us know he's entirely 100% in support of Joe Biden's corrupt activities as Vice President and President.
The impeachment is not for lying, it's for the fact that Vice President Joe Biden was an active corrupt participant in hunter Biden's corrupt influence selling schemes
Also 2023 Republican leadership: "So what if Trump lied about the election having been stolen? He has a First Amendment right to say what he wants. Even lies."
In Alvarez SCOTUS struck down the Stolen Valor Act as a violation of the 1st Amendment, despite the fact that it only criminalized knowing lies.
But according to Chuck, disagreeing with Chuck, unlike all out lying about your non-existence military experience, is NOT protected by the 1st Amendment.
Shouting Thomas said...
Glenn Reynolds’ Instapundit comment site, has been rendered useless by the mad dog ranters, vendettas, graphic blast posters and childish cursing.
Instapundit’s comments site is an embarrassment to conservatives. Change is needed.
------------------
I agree. Legal Insurrection is at least trying to reign in some of these mad dog ranters, some of whom post here. I hope they don't take over Althouse blog. Even though I disagree with most of the Democrat/Leftist/Progressives who post here, I am glad they feel welcome to post here, and sometimes I even learn something from them. (Not very often, but sometimes.)
BothSidesNow said...
More broadly, when a lie is conceived and spread in service of a criminal object, be it to rob a bank or interfere with the counting of electoral ballots, is it correct that the First Amendment protects the liar?
So do we need to send to jail every single person who spread "Trump Russia collusion" lies, and tried to block certification of his 2016 victory, or who supported "The Resistance"?
Blogger Hunter Biden's tax payer funded Hooker said...
Trump falsely thought Mike Pence could fly in like a super-hero side kick and change the "results" of the election. Pence alone, does not have that power.
--
Well, change/review per a process broader than Pence alone delineated by his legal counsel.
He dared follow their advice.
hpudding,
Is there something about Don Trump in particular that interests you? Or are you just drawn to his proclamations of self-importance, the blind devotion of his followers, the interest his crimes attract?
H, have you looked at the NYT or the WaPo editorial pages in, oh, the last six months? Especially the last two? Because there are multiple anti-Trump articles on both pages every single day. I don't begrudge them that; everyone wants to know what Jeff Bezos and Carlos Slim think about Trump. But it's silly to pretend that Althouse is singular in this when nearly every MSM operation I can think of is singing the same words to the same tune. AA is a tiny voice by the side of those behemoths.
"Glenn Reynolds’ Instapundit comment site, has been rendered useless by the mad dog ranters, vendettas, graphic blast posters and childish cursing."
He's getting exactly the audience and commenters that he pursues with his clickbait posts and links to the even more clickbaitish and often blatantly dishonest PJ Media.
The money must be really, really sweet.
puddinghead weighs in with another amusing comment.
Justice is a good thing. Way more important than political celebrity for conservative Trump fanboys and fangirls, or preserving his image of invincibility. It’s interesting that you don’t seem to want to address that basic conflict in our politics.
Look who is mentioning justice ! With a thousand citizens in prison for misdemeanors and many still waiting for trial before leftist judges in DC.
The basic conflict is that Democrats have gone insane the past 8 years. All you lefties whinge about Trump's "crimes" but you never name any.
All you lefties whinge about Trump's "crimes" but you never name any.
This is why conservative authoritarians aren’t taken seriously. Trump’s indictments are based on criminal charges that all exist on the books but the Trump loyalists are too lazy or ignorant to look them up. As opposed to “Biden Crime Family” catcalls (so much more original than “Let’s go Brandon,” right?) in which Republicons can never name a single law broken. (I don’t even need to say “allegedly,” because that would mean they actually made a credible allegation of lawbreaking. But that would mean they could name a law he broke, which they can’t).
But of course it’s only just about name-calling for the right. They live on gossip, rumor and innuendo and can’t be confused by the facts.
H, have you looked at the NYT or the WaPo editorial pages in, oh, the last six months? Especially the last two? Because there are multiple anti-Trump articles on both pages every single day. I don't begrudge them that; everyone wants to know what Jeff Bezos and Carlos Slim think about Trump. But it's silly to pretend that Althouse is singular in this when nearly every MSM operation I can think of is singing the same words to the same tune. AA is a tiny voice by the side of those behemoths.
Those publications give space for analysis, rebuttal and especially fact though once you drop below the attention-getting headline containing nothing more than the attention-getting quote. I’m curious when was the last time here that anyone referred to a fact, let alone took to privileging one. As opposed to just stirring things up and immersing oneself in the spectacle.
This blog is like a mosh pit of political emotion with the pretense of clarity only insofar as it relates to looking at a judge’s ostensible philosophy or a politician’s faking of one. It’s all just about becoming lost in the movement and crowd-surfing Trump’s silly fanbase.
Most of the people here I find to be pretty serious, interested in making a point and accepting correction.
Talk about not having a discerning eye and being badly in need of correction.
The endless posts on Trump here are barely analytical if at all and read more like diary journal entries on whatever Trump did and said today. It’s like reading Mark Meadows’ day planner. But also endless entries about which publication said what about him, like an addendum to what’s going on in his friends and enemies list through which he keeps score on the media.
How self-congratulatory for you to not see through that and proclaim who’s a jerk and who isn’t based on it. Trump is about a mile wide and an inch deep and anyone undiscerning enough not to see that is not much different than a sycophant to him or whomever’s covering him in that way.
Instapundit’s comments site is an embarrassment to conservatives. Change is needed.
Conservatives are incapable of change, hence the name. Irony noted.
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