Says lawprof Margaret C. Tarkington, quoted in "Push to Gag Trump Pits Free Speech Against Risk of Violence/By putting threats to the judge and prosecutors at the heart of its argument to limit the former president’s statements about the election case, the Justice Department raised issues with little precedent" (NYT)
In a 1991 case, the Supreme Court upheld barring defense lawyers from making comments outside court that are likely to prejudice a jury, citing “the state’s interest in fair trials.”
But the Supreme Court also suggested that greater speech restrictions might be permissible on lawyers because they are officers of the court. It has never addressed what standard a gag order on a defendant must meet. A handful of appeals courts have addressed gag orders imposed on defendants and set different standards....
The article quotes lawprof Paul F. Rothstein: "Everything about these cases is making new law because there are so many gaps in the law. The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap."
४५ टिप्पण्या:
Let’s first decide who gets to decide there’s a unique risk of violence because ‘it is Trump’. The people who conclude his political opponents have all the power to do it should go jump in a gap…
It's a really hard argument in normal circumstances -- ..."
But then we are informed quickly that, whereas The STATE normally has ALL the POWER, in this case the defendant at the far other end of the seesaw has a little bit of power of his own.
G-d Forbid!
We know the solution to THAT predicament. REMOVE his LIBERTIES! In fact, EXPUNGE him from the history of the Presidency! In fact, EXPUNGE him from HISTORY entirely!
Only then can the comfy totalitarians feel safe.
Here’s this woman’s first Google hit- might be just me but I see an inconsistency:
About the Author. Margaret Tarkington is a Professor of Law at the Indiana University McKinney School of Law. Her scholarship bridges specialties in constitutional law, lawyer regulation, and procedure – harnessing the First Amendment as a means to protect the integrity of government processes
The Democrats seem determined to force everyone who ever took an oath to protect and defend the Constitution to take up arms. I do not think it will turn out the way they seem to believe. Unbelievably bloody is what I almost expect to come to pass at this point. The problem they failed to see in 2016 is that once you start down the road of tyranny, it is really hard to find a stopping place.
The reason for the gag request was to prevent Trump from shining a light on the political ridiculousness of the charges. These prosecutors shouldn’t get a safe space to protect themselves from that. They’re the ones who created the situation.
Are the Feds plotting another fake-kidnapping or reichstag fire - for Biden/Media/D narrative benefit?
Time to make up some more new law! This guy won't go quietly!
"The system is held together by people doing the right thing according to tradition..."
Jeezum Crow! The prosecution just pulled in a "war crimes" specialist from The Hague. I am sure that Joe Biden and Barrack Obama and George W Bush will be happy about this precedent. The reason there are so many "gaps in the law" is because the prosecution has thrown out all of the traditional rules.
But refer to first rule of the Party. "You must not believe the evidence of your eyes."
Lets Face FACTS: Trump is GUILTY, guilty as SIN. Guilty of Not being a democrat..
Surprise, surprise. Liberal law profs support anti-1st Amendment gag order because Trump!
The article quotes lawprof Paul F. Rothstein:
"Everything about these cases is making new law because there are so many gaps in the law. The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap."
There are no gaps in the law. Rothstein is just is mad that he can't make somebody he doesn't like shut up.
William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
― Robert Bolt, A Man for All Seasons: A Play in Two Acts
Sayeth lawprof Margaret C. Tarkington...
"What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power and the defendant has none. But in this case, you have a defendant who has very significant power."
So she's saying she's worried that Trump has the ability to fight back?
Doing the right thing? Whenever a Lib uses that phrase, I gag. I use it as a joke.
For the Left, doing the right thing is net zero carbon. Gotta save the Planet in 2100 no matter the cost.
Allowing the parents of mentally ill kids to “transition” to another sex is another example of the right thing.
Use of that phrase is a tell.
"Push to Gag Trump Pits Free Speech Against Risk of Violence/By putting threats to the judge and prosecutors at the heart of its argument to limit the former president’s statements about the election case, the Justice Department raised issues with little precedent"
Well, sorry. They should fear for their lives for what they are doing. They have illegally and immorally effectively rewritten the law, in order to criminalize behavior that has never been criminal before for purely political reasons. They are doing it in order to prevent Trump from winning the 2024 election. If they win at the trial level, they will ultimately lose at the appeals level, because rewriting the law, as they have, violates Due Process. Which means that they are using the judicial process against Trump for an illegitimate purpose. And intentionally interfering with the election, as they obviously are, interferes with the choices of, very likely,, well over the 70 million votes Trump got last time. So,Hell Yes! They should fear for their safety.
I was struck by Peter Strzok and Lisa Page believing that they were the patriots when they tried to protect Crooked Hillary, and then prevent Trump from being elected, and after he was, destroy his Presidency. Despite having been fired for cause, Strzok is on the liberal news networks now, having had his reputation restored, or at least ignored. What was so patriotic about interfering with a Presidential election, and then trying to destroy a Presidency? Why do these people believe that their choices are so much more important than half the voting public’s? Who elected them god?
Keep this in mind - the FL case against Trump is an extension of what was done against Trump by Strzok, Page, McCabe, and company starting in maybe June of 2020. He worked for the Counterintelligence Division of the FBI. He worked on both the Clinton and Trump cases in 2020, as did others under him in that organization. They work closely with their sister organization, the Counterintelligence and Export Branch of the DOJ. The misfeasance and malfeasance of both of these organizations in the Crossfire Hurricane, RussiaGate, and Mueller prosecutions were the subject of the binder of classified documents formally ordered declassified by Trump, his last full day in office. And were thus the documents that these organizations knew that Trump had in his possession, that were still marked classified, when the subpoena to him was issued. And who signed the subpoena, search warrant, and indictment? Jay Bratt, Branch chief of that very same Counterintelligence and Export Branch AND now Deputy Special Counsel. (Of course, the appointment of Jack Smith as Special Counsel is just as irregular).
I ask again, why should we put the very justified fear of these very evil people above the electoral choices of very likely well over 70 million people this election?
Trump "jumps into every gap." I think he will enjoy being described that way. It sounds pretty cool. Iconoclastic.
Interesting quote.
Well then!
Let's create some abnormal circumstances!
Worked for Covid, it'll work again.
likely to prejudice a jury, citing “the state’s interest in fair trials.
So the state is worried the jury will be prejudiced against it and it won’t get a fair chance to convict.
That’s not how this works.
That’s not how any of this works.
How is the defendant creating gaps in the law prosecuting him? If there are gaps in those laws, should they be used to prosecute? Sounds like clear grounds for reasonable doubt, if the defendant fits in the gap of laws.
Do I remember correctly that Martha Stewart earned additional counts to her initial indictment after telling the public, including her investors, that she was not, as accused, manipulating the price of her stock? Which, prosecution argued, was just another means of manipulating prices? I am sure I recall she was later acquitted of those particular charges.
How does any person or 'brand' with a reputation of value defend that value while a trial in impending?
The problem with Trump, as I see it, is that the government is trying to make trying Trump, a former president, a normal circumstance, with less than “without evidence”. I mean, who’s talking about the air tight case against Trump? You want to talk abnormal circumstances? Courts are entertaining the criminalisation of political discussions. They are pissing on a man and expecting him to say ‘could you pass me an umbrella, please’. The case against Trump is thinner than the people who went into the capitol jan6, and jan6 defendants have started doing decades in prison for “insurrection”. Trump is not facing anything near the fuck “normal circumstance”. Somebody please Stop this farce!
The attempt to bend, twist/mangle language to fit the needs of a prosecution (forget Trump is THE leading candidate for president of one of the two political parties in the fucking USA) should not work as easily as a Deve Portnoy WaPo hit piece.
"Everything about these cases is making new law because there are so many gaps in the law. The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap."
WTF? The cases "make new law" because partisan prog persecutors go after a former president on phony charges--see McCarthy on the Fani Willis, to take one blatant instance--and it's Trump who doesn't act "according to tradition." It's one thing for progs to play hardball and try to squash the opposition. But do they have to marinade their machinations in such obvious BS to rub it in?
Typical Leftist Democrats... projection like an IMAX.
You wonder if they give any consideration to the possibility that the reason there are gaps for Trump to jump in is because the Persecution's case is full of holes.
there are so many gaps in the law
There are so many things that the state can't simply order or forbid.
"doing the right thing"
=
Doing what I want done.
"according to tradition"
=
Bullshit thrown in to sound all legal. What are these traditions? Point to them in law.
“How is the defendant creating gaps in the law prosecuting him? If there are gaps in those laws, should they be used to prosecute? Sounds like clear grounds for reasonable doubt, if the defendant fits in the gap of laws.”
They are using LawFare again (with several of the theories appearing to have started over at the LawFare blog). My view is that Benjamin Weisse, and all those associated with him, are evil, weaponizing the Justice system for their personal political ends.
The problem is that when there are gaps in the law, when the law isn’t clear, or, as those practicing LawFare are want to do, when prosecutors misinterpret the law, and the like, the ambiguities are necessarily interpreted against the prosecution. The Supreme Court has repeatedly pointed out that that is required for Due Process. The prosecutors here know this, which is why what they are doing is so highly unethical - because they are using the judicial process to hinder and harm their political enemies without any realistic belief that they will be successful and upheld on appeal.
Trump "jumps into every gap."
I immediately thought of Leroy Jenkins.
We need more people like Leroy Jenkins.
I am Laslo.
The implications of bias and/or corruption are so strong in these cases, judges, prosecutors, prospective jurors, that a gag order against Trump would desecrate the intent of the First Amendment.
It reads like the persecution needs an ex post facto bill of attainder that violates the First Amendment.
That’s what we call the “hat trick.”
Gaps in the law is what you get when you stretch it unethically like the Biden people are doing at the moment.
I think a gag order will be issued, and I think Trump will openly defy it. Then what?
Defending yourself against criminal charges has never been thought to justify attacks on the judge or prosecutor, only on the case against them. Donald Trump is again weaponizing his supporters.
The problem with legal analysis of defendant speech rights is that it must necessarily presume good faith on the part of the prosecution if there is to be any restriction on speech. Here the government is not entitled to that presumption.
He's a witch! A warlock! A baby!
We need reasonable "arms" control to control resistance and masks to control voices from protesting. That said, abort, it's a human rite.
These are the same professionals of law that rationalized the wicked solution to a hard problem: keep women affordable, available, and taxable, and the "burden" h/t Obama... demos-cracy of evidence sequestered in darkness h/t WaPoo. That said, all's fair in lust and abortion?
He should talk no matter if there’s a gag order or not. A government that would suppress a defendant’s right to speak out against charges deserves to be overthrown.
why is this awful? quite a Trumpish-istic Anthem?
The Hunter
GTR
It don't come easy that's understood
Faint hearted loser that's no good
Just take a lesson from the great Mohammed
He said... He said...
Pick up a rifle, you must be strong
To take a title can be so long,
If you believe, you can't go wrong,
I said... I said... Listen
He's a fighter, he's my friend
Always winning in the end,
He's no angel, he's no fool,
Never plays it by the rule,
Take the glory, steal the prize,
Only the hunter, only the hunter
You took your chances, you hurt your pride
A sense of failure is hard to hide
You crossed the limit, you broke the code
Back on the road
Remember?...
He's a rival, he's my friend
Always winning in the end,
He's a tiger, he's a swan,
He's the one I'm counting on,
To take the glory, steal the prize,
Only the hunter, only the hunter
Survives
I'm on the outside, I'm looking in,
Through the lenses then into film,
I've got the target set in my sights,
I see a vision of truth,
Look out...
We're gonna fight until we drop,
We're gonna get back to the top,
We're gonna be the first in line,
Winners till the end of time
Only the hunter, only the hunter,
Survives
“ Defending yourself against criminal charges has never been thought to justify attacks on the judge or prosecutor…”
“Never”seems a bit extreme. Surely you remember the Chicago 7.
FREE THE MARA LAGO 75,000,000!!!
Not sure exactly what that Supreme Court case says (note that it involved discipline of a lawyer as an officer of the court, not the defendant in the underlying trial); however, as a Constitutional matter, the "State's interest in fair trials" is supposed to be entirely to the benefit of the party charged by the State with a crime. That Bill of Rights thing.
"Defending yourself against criminal charges has never been thought to justify attacks on the judge or prosecutor, only on the case against them. Donald Trump is again weaponizing his supporters."
I know it isn't really possible for you, David, but put yourself in Trump's and his supporters' shoes for a moment and consider that we believe the charges, the prosecutors, and the judges in at least 3 of the cases are unethical, unfair, and politically motivated. Additionally, the prosecutors leak unethically and illegally to the press like a sieve. Striking back against these persecutors is not only ethical, it is the only realistic legal defense given the actors and the jurisdictions. However, I know you don't give a flying fuck about justice and fairness and never have.
"The article quotes lawprof Paul F. Rothstein; "It is evident from a close consideration of the context that the Constitutional prohibition of bills of attainder was never meant to apply to Bad Orange Men."
Tendentious fucking whore. He should not be allowed to teach law to his betters. Which is to say, he should not be allowed to teach law.
Things like Margaret C. Tarkington and Paul F. Rothstein are why we have things like Fani Willis and Alvin Bragg. I'm not sure who to blame for Jack Smith. Willis and Bragg were clearly admitted to law school despite their evident mental inadequacy because they are bLack. They can only see the law as a weapon, a spear which only points in one direction. Their inclination is to point it at those they fear, and no one ever showed them any reason they could understand to refrain from indulging their inclinations. Smith is not the sharpest tool in the shed either, but he seems to be a nastier specimen of malignancy. He is motivated by something a lot less innocent than fear.
Gagging a defendant is Kafkaesque.
It also costs extra in San Francisco...
the prosecutors leak unethically and illegally to the press like a sieve.
Leak like a fish.
I don't support Trump for election as (a 1-term) President, but as a loyal American Constitutionalist I oppose all (ALL) attempts to bar his candidacy.
Watch your step. Mind the gap.
I think a gag order will be issued, and I think Trump will openly defy it. Then what?
I sometimes wonder if they will. The DOJ has to ask for it. But will the judge go along? Trump is certain to violate it. Either brazenly, or coming right up to the edge. Politically either way Trump will get stronger and the judge and DOJ will look weaker.
If they do jail him, the gag order issue will be fast tracked to the Supreme Court. It's a perfect test bed case. But in the meantime it will look like the political case that it is.
If they can gag Trump they can gag the lowliest defendant.
IMHO, Judges have been issuing gag orders too often. Secret speech (leaks, etc) is more detrimental to a fair government than open speech.
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