While the arduous presidency of Donald Trump was frightening and destructive, it was at least educational.
Thanks to Trump’s crimes, engaged Americans go to law school. Again.
This semester in the Trumpian pit, we focus on free speech. This isn’t going to be easy.
Just a year ago, Americans, many of whom used the one-potato-two-potato method of completing standardized tests in school, were forced to learn the complexity of criminal conspiracy law. Those of us interested in whether Trump was really a traitorous felon or just a contemptuous narcissist were forced to learn or review the concept of conspiring to commit a crime.
Maybe, what with the pandemic and all, you forgot. Maybe you didn’t care. Maybe you preferred the truly intuition-random method of filling in the circle on your Iowa Test of Basic Skills or whatever they call that these days. Possibly, you would have been fine with convicting Trump for a catalogue of high crimes and misdemeanors last year because you’d seen him in action for four years.
Regardless, Trump perfectly illustrated how to violate federal conspiracy law, which states, conspiracy is when two or more people agree to commit a crime. To be found guilty of conspiracy, you don’t have to make your plan in secret, and you don’t have to actually pull it off.
The House of Representatives proved to the Senate without doubt that former Trump lawyer Michael Cohen perpetrated a number of federal crimes, including tax evasion, campaign finance fraud, and perjury — at the behest and in cooperation with Trump. There were tapes and emails.
Whether such mob-boss felonies rise to the level of removing the president, the decision to acquit Trump last year had nothing to do with the law and everything to do with growing Republican fear of Trump’s cult-ish supporters.
If the complexities of conspiracy law had you changing channels during the pundit replays last year, understanding how free speech dances with criminal convictions is going to have you surfing for the comfort of I Love Lucy reruns before we get started.
Free speech, protected by the First Amendment, is the crux of the latest impeachment case against Trump. House impeachment managers insist that Trump methodically and fervently compelled a mob of his unstable, violent and cruel supporters to invade the U.S. Capitol in hopes of undermining the presidential election to keep himself in office.
Trump’s lawyers have the unfortunate job of defending him by asserting that, sure, it was Trump’s creepy zealots who violently seized the Capitol, gallows in hand. Yes, Trump for months had first primed the insurrection by endlessly tweeting, rallying and Fox-Newsing bogus conspiracy theories and outlandish lies about non-existent, wide-spread election fraud. All of his malevolence centered on the idea that the only way he could lose the election was if the Deep State, Democrats, Sleepy Joe, Dark Forces, et al, cheated. And, yes, Trump, embarrassed himself across the globe with his endlessly debunked and legally rejected delusions of his re-election hidden in suitcases. He did in fact repeatedly ingratiate himself by declaring he was usurped by rigged voting machines possessed by the AI souls of big tech and “nasty” Black women in Congress. And, yes, Trump did say that his dictatorial dreams depended on overthrowing the U.S. election during a patently illegal plot to undermine the counting of electoral votes inside the Capitol on Jan. 6, allowing his Republican minions in the House to appoint him “president.” And, well, yes, Trump did on numerous occasions rally his most “fervent” henchmen to meet early on Jan. 6 just down the street from the Capitol for a “wild” assembly so they could “fight like hell” against his stolen election. And, his defense attorneys admit Trump said all kinds of things that morning to thousands of his worst-best fans, foaming at the mouth to “take back” the election, nation, country, gun rights, border, QAnon and on and on. His lawyers can’t hide from the fact that Trump stood on that stage that morning and sent his angry mob to the Capitol, because we’ve all endlessly seen the tapes, and Senators will be forced to watch them, closely, again.
His defense is that he can do all that as president of the United States because it’s “free speech.”
Here is one of the few times a journalism degree comes in handy. Free speech is our business.
The short answer is, it doesn’t work that way.
Oh, rest assured, in America, you can say, tweet, yell, sky-write, and broadcast any damn thing you want, but not without consequences.
The First Amendment comes with a long, well-documented list of consequences. In my business, libel rises to the top. Fox News is in the thick of being the media mouthpiece for Rudy Giuliani’s text-book slander of voting machine makers. If what you say or print isn’t true, you have to eventually prove you didn’t pull a “Rudy” maliciously. It’s about absence of malice, and that the jury doesn’t hate your guts. Rudy and Fox are pretty much screwed.
Trump’s lawyers have the unenviable and virtually impossible task of proving that Trump’s clearcut and successful insurrection heist was an accident caused by political speech protected by the Constitution.
Today’s lesson is about the Brandenburg Test.
This isn’t America’s first rodeo with clowns like Trump. For generations, the courts, including the Supreme Court, have struggled with the consequences of allowing anyone to say anything they want, like getting some “revengeance” on Black people and Jews. The 1969 case against Ohio Ku Klux Klan leader Clarence Brandenburg focused on the racist telling TV viewers to come one, come all on July 4 to march on the U.S. Capitol and force Congress to, unconstitutionally, send Blacks to Africa and Jews to Israel.
The Supreme Court ruled in favor of the KKK chief, setting up the famous Brandenburg Test, because prosecutors didn’t prove:
- The defendant wanted to incite some kind of violence or riot, and that it wasn’t just “emotionally charged rhetoric.” House impeachment managers must prove intent. With endless tweets and film clips, in Trump’s case, it’s a pretty low bar. Dog-whistles count here. In court, mob talk like, “swimming wit duh fishes” is as clear as “shoot him dead.”
- The defendant has to spell out a “road map” or realistic way to carry out the threat. Trump compelling his mob to come to the Capitol on Jan. 6 for a “wild” time and then instructing them to walk down the street to Congress, now, and give lawmakers what they deserve checks this box.
- Finally, words matter. Here’s where Brandenburg really got off. It isn’t enough to just be profane, obscene, cruel or repugnant, which is protected. Nastiness, however, does not protect someone whose provocative words persuade or goad a crowd to act violently. The suspect has to say things that compel or cajole them into an imminent, clear act of violence, like angrily marching down the street and forcing the U.S. Congress to force “weak” Republicans to do the bidding of Trump and his mob.
So far, Trump’s lawyers are a step up from Kangaroo Court Jester Rudy Giuliani only because their hair color didn’t run down the side of their faces as they began arguing the case against Trump this week in the Senate.
Lawyers Bruce Castor and David Schoen virtually ended their legal careers by dragging Senators through a maze of talking points that seem to help make the case against Trump or were channeled from Colorado’s own conspirator GOP Congressperson Lauren Boebert, and from the thick of the QAnon mushroom forest.
In a back-seat sibling debate strategy of whataboutism, Boebert — and, now, Trump’s lawyers — point to film clips of Democratic Congressperson Maxine Waters famously telling a group of activists to get mean and in the faces of Trump staffers if they’re seen at gas stations and tell them to quit locking up immigrant children in cages.
This isn’t about Waters, who failed all parts of the Brandenburg test. This is about Trump methodically compelling his known-violent mobster fan club to violently disrupt the end-stage of the U.S. election, which really happened.
Without question, Trump incited the mob to crush, beat and torture police officers at the Capitol. They pillaged the building, taunting lawmakers with nooses and threats of murder. The actual video of their assault is more violent and jarring than anything Hollywood could have manufactured. It was real, and it happened only because of Trump.
The only real question remaining is whether Republican senators will choose the nation over their party, right over wrong. It’s not about free speech. It’s about elected Republicans who for years now have trifled with or outright embraced violent, malevolent, racist extremists. They now must choose between cowering from the wrath of these “patriots’ or shunning them and risk losing power.
We all know what Trump was guilty of. It’s what remains of the Republican Party that’s really on the stand this time.
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