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Trump got hit by two gag orders from two different judges. The precedent in this area of law is severely underdeveloped, both because so few defendants get gagged, and of those who do very few have the resources or energy to mount an appeal. Jacob Sullum writes a great overview of the issue:
So to avoid the common pitfalls in discussions like this, set aside Trump for a moment. Should judges have any authority to impose gag orders? If so, what limits should be in place? After working out the questions in theory, how does your position apply to Trump?
I think gag orders can be appropriate in a very limited set of circumstances. For example let's say a newspaper owner is charged with murder in a small town. He should always have the absolute and unrestricted right to discuss the allegations against him and mount a defense in public. There are some areas where it starts to get cloudy for me, like for example if he hires an investigator (legal & appropriate) to dig into the history of the main witness against him (legal & appropriate) and he gets his hands on her diary (potentially legal & potentially appropriate). He then spends the lead-up to the murder trial publishing massive coverage the lurid details of all her sex kinks and fantasies, which isn't implicated in the murder charges. To me this starts to look like witness tampering/intimidation, where the defendant is humiliating a witness with the intent to discourage her from giving testimony.
So my answer is here would be yes, judges can impose gag orders but they should be extremely narrow. The operating principle should be to always allow defendants to discuss the direct charges against them, including the ability to discredit witness credibility. There's a blurry line between when someone is discrediting a witness on relevant matters, and when they're just trying to make their life hell to discourage them from testifying. An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.
So with that out of the way, how does it apply to Trump? Judge Chutkan's order restricts him from making statements that "target" the prosecutor, court staff, and "reasonably foreseeable witnesses or the substance of their testimony". Practically speaking, it goes without saying that it's a terrible idea to talk shit about the court or prosecutor while your case(s) is pending. There are some obvious areas where Trump's commentary is inane and irrelevant, like posting a photo of a judge's law clerk and claiming she's "Schumer's girlfriend", or posting about the prosecutor's family members. Discrediting witnesses is harder to draw a clean line on, because again there's a gradient between discrediting and intimidating. I think Trump should have the absolute and unrestricted right to discuss any of his charges and discredit any evidence and witnesses against him. While I disagree with that part of the ruling, I don't know how I would rephrase that clause, and so my reaction is that in these close cases we should default to allowing speech rather than restricting it.
Edit: @guajalote changed my mind on the propriety of Judge Engoron's order prohibiting "personal attacks on my members of my court staff". I agree that criticizing government officials should always be protected, even if the speech is targeting irrelevant or uninvolved individuals. A narrower order prohibiting incitement would've been more appropriate.
This is actually even worse than it seems. "Reasonably foreseeable witnesses or the substance of their testimony" could include a vast number of people - what's to say Chutkan can't come down on him for even the mildest political attack ad by saying that Biden is a potential witness for the prosecution? The entire point of this prosecution is to hamper Trump's efforts to campaign, and this is just one of the tools they're using to achieve that goal. The legal theory doesn't actually matter at all, because the point is to hurt Trump's campaign and it doesn't matter if their every decision is immediately revoked upon appeal because they will have hurt Trump in some way. It's not like there could be any reasonable restitution Trump could receive afterwards either.
I agree this includes a vast number of people, and that's one reason I don't support this part of the order. For context, it bears mentioning that Trump is absolutely being treated with kid gloves on by the system. You can ask any defense attorney what would happen to their regular joe client if they started attacking the prosecutor, the judge, the clerk, or any of their families. It's absolutely inconceivable that any random schmo pulling that would not be jailed immediately. Courts routinely and reflexively keep people behind bars ahead of their trial date for things far more petty. I remind you that there's 400k people in jail right now in the US who haven't been convicted of a crime yet, some absolutely because they're too dangerous to be let out, and some because they can't scrounge the $100 needed to bail out).
I can agree with this on the one hand, in that if some random sovereign citizen pulled these same stunts the system would come down on them like a ton of bricks - but I think a lot of these actual prosecutions are very much not "being treated with kid gloves on". I'd reserve that phrase for the treatment that Hillary Clinton got with her email "matter", or that Hunter Biden got with his crack/guns/lying on government forms/corruption/unregistered foreign agent activity/tax avoidance/driving on crack. My reading of the situation is that the DOJ wants to crush Trump by any means necessary, they're just scared of the pushback they'll get for being too nakedly corrupt which is forcing them to temper their approach.
These disputes come up regularly here and they generally get stuck in an unresolvable mire. I don't know any obvious solutions, because whatever distinction one side mentions gets dismissed as irrelevant or immaterial by the other side. Maybe one possible solution is to list out a list of objective metrics and only then figure out how to apply them to each situation. For example in the context of "mishandling classified information" we can maybe outline as metrics: number of documents, sensitivity of information, whether there was any recalcitrance, whether there was any dishonesty or fraud involved, what the motive was, whether there were any justifications, etc etc. The goal here is to avoid the all-too-common tactic of glossing over incriminating factors and highlighting only exculpatory.
I also don't think this is really resolvable either. If you can come up with a good rubric for determining the harm caused by misuse of classified information you're not even halfway there to determining the ultimate cost - was Hillary's email server the source of the leak which led to China rolling up most of the CIA's agents there? I don't know, and I don't think it's even possible for someone without access to a lot of classified information to find out. At the same time, my understanding of Trump's motives for retaining classified documents was that they contained proof of government malfeasance in Crossfire Hurricane and the Mueller probe it turned into. Those documents would have been extremely sensitive and had immense consequences if they were released to the public - but the specifics of the situation are so unique that I don't think looking at these two instances and going "Well, Clinton's mistake revealed a bunch of SAPs and lead to all of the CIA's chinese sources being tortured and killed, but Trump had more pieces of paper with NOFORN on them so despite nothing happening as a result his actions were worse" is in any way conducive to gaining a clearer understanding of what happened. This just isn't the kind of question where objective measures are particularly useful or even easy to acquire.
That said, I do think that there's some kind of objective metric where you can compare the actual negative impacts of Trump's retaining of classified documents in accordance with long-standing tradition as opposed to Hillary's compromised-by-foreign-powers email server specifically designed to evade FOIA scrutiny. But as my framing of the issue gives away, my own bias is for populists and against the establishment, so I'm definitely not going to be able to come up with it.
Woah that's crazy, how do you know this?
I don't know it and can't prove it (and I also think there could be more documents unrelated to it included), but that's the only set of documents I can think of that fit the category "Trump declassified these but the government disagreed". It's likely that he also took some other stuff, like Presidents seem to do normally, but those are the documents that seem most likely to be retained. That said I don't actually know for certain - I'm sorry for being unclear with my language and giving a higher confidence level to that information than was warranted.
No worries, I really appreciate you clearing it up.
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You say that like those incarcerations don't already make a mockery of our justice system. And like any judge who behaves pettily isn't by default rendering themselves unfit for the job, unfit for any job with any responsibility, someone we should encourage children to spit on for taking the highest public calling and corrupting it for as little as personal pride.
I assume that's why Trump is being treated with kid gloves actually - everyone involved knows they ain't getting away with pettiness here. In fact they aren't getting away with anything that is not explicitly outlined in law, because they are being watched like hawks by both sides - so the way Trump is being treated is the way everyone is supposed to be treated. But I guess long ago we decided respectable behaviour was such a good measure we should make it a target and the incentives got muddled.
There's nothing you said that I disagree with, except I never meant to imply that 400k people in pretrial detention is a good thing.
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How many former US Presidents have been subjected to the same level of prosecution?
Which is irrelevant, because no other US Presidents have committed the crimes Trump is being accused of.
If the facts set out in the Jan 6th committee report are correct, then
The last time anything remotely like this happened was the Hayes-Tilden election in 1876, and the fact that nobody was prosecuted for the malarkey then (which included a 3-figure number of murders) was part of a pattern of letting white southerners get away with shit that started with the culpable failure to hang Jefferson Davis and ended up with the north cucking to Jim Crow.
"Unsuccessful coup plotters go down" (whether they get the rope or just a long jail sentence depends on national tradition) is the historical default everywhere - there isn't a directly on-point precedent in the US because nobody in US history has tried to do the kind of things Donald Trump did between the election and Jan 6th.
You can argue that Donald Trump shouldn't be prosecuted because consensus reality is incorrect and he is factually innocent. You can argue that Donald Trump shouldn't be prosecuted because he is so disconnected from reality that he is incapable of forming the mens rea to commit a crime of dishonesty - based on the publicly-available information there is reasonable doubt on this point - although I am not sure you can do so with a straight face while suggesting that he be elected President of the United States. You can argue that he should be let off for the same reason Jefferson Davis was - that prosecuting someone for serious crimes of which they are obviously guilty is nevertheless dangerously divisive if a large percentage of the population still support the perp - but the precedent is that that was a mistake (at least if you reject Jim Crow and the Gone with the Wind/Birth of a Nation school of pop-history).
What you can't do and expect to be taken seriously is to argue that prosecuting a coup plotter is a shocking escalation, or that Trump is being prosecuted (at least as regards the election-related prosecutions) for something that a Democrat or pro-establishment Republican would have skated for, because neither Democrats nor pro-establishment Republicans would allow the kind man who would think of doing what Trump did near the presidency.
Not that it matters very much given that the politics of all this is driven by Jan 6th, but the story with the other prosecutions Trump is facing are similar,
There is a lot of evidence, including from before Trump became a partisan political figure, that he is unusually dishonest by the standards of rich and powerful Americans. This means that you would expect him to have worse-than-usual post-presidency legal troubles.
Didn't a bunch of states create mail-in-ballot rules that undermine ballot secrecy just for that election in particular before some of them got taken out by courts due to their irregularity?
Wasn't the whole Covid psy-ops leading to these rule changes in the first place?
"We can't have ballot secrecy because there is a horrible disease with a 1% mortality rate for 80 years olds, oh we can still have massive protests against police brutality, but not ballot secrecy, no no"
If there was evidence of a massive conspiracy showing all level of governments and media building up the Covid scare with the ultimate goal to undermine the integrity of the elections, wouldn't that be some kind of coup, or at least conspiracy to commit a coup?
Thanks to the Twitter files we already know that federal employees were pressuring social media companies to erase opinions going against the media consensus on Covid. From the same agency that back in 2015 was building up an investigation against Trump to prevent him from getting elected.
Well yes, of course the average rich and powerful American is a honest guy. Not the kind of guy to end up on Epstein's flight logs. Oh wait, I still can't see them, so I'm gonna have to believe that he is a honest guy and it's pure coincidence that Trump is getting prosecuted and not Epstein's buddies. The judges are just doing their work, nothing to worry about.
Before 2020, nobody thought that mail-in ballots were per se fraudulent. In 2016, three states including one swing state had all-postal elections (Washington, Oregon and Colorado), and most other states had no-excuse postal voting for anyone who applied. 23.7% of all votes were cast by post (see pp 9/10 here). And nobody on either side of the aisle thought that this was a problem that would justify overturning a close election.
Trump made specific allegations of fraud which were not true. He could have made the purely legal argument that slightly easier postal voting introduced in an irregular way was grounds for tossing the election on a technicality (as of 2016, it was a colourable legal argument based on the independent state legislature theory, which wouldn't be rejected by SCOTUS until Moore vs Harper in 2022) and allowing Republican State legislatures to choose electors, but that wasn't the argument he made. He said that he won by a landslide, that there was "massive fraud", that Dominion and Smartmatic voting machines meant that the in person votes were invalid, and that rogue election officials had added large numbers of fake ballots to Biden's tally.
You mean the pandemic with an impact visible at the macro-demographic level? Or are you telling me that governments outside the US faked 6 million deaths (by official count) or 25 million deaths (based on demographic statistics) in order to allow slightly easier postal voting in a US election?
Yes, which is why it is good that there is no such evidence. The pre-2020 conventional wisdom was that easier postal voting helps Republicans (because of the military vote), so if there had been a large-scale conspiracy to steal the election for Democrats, the main goal of the conspiracy would not have been slightly easier postal voting.
I didn't say that. I said that by the (low) standards of rich and powerful Americans, Trump is unusually dishonest. Heck, even by the (even lower) standards of greater-NYC real estate operators, Trump was unusually dishonest, this was common knowledge on Wall Street, and was in fact sufficiently common knowledge that a joke about it got into Sex and the City.
Epstein's buddies like one Donald Trump, who allowed Ghislaine Maxwell to recruit girls at Mar-a-Lago, who was a frequent flyer on the Lolita Express, and who promoted the corrupt prosecutor who gave Epstein a sweetheart deal the first time he got caught? Even by the (very, very low) ethical standards of Epstein's social circle, Donald Trump went above and beyond.
Because they don't have to be. Ballots can still be considered relatively secret with the exception of a few %age. When a large share of ballots get mailed in, then the mechanism by which these ballots get collected, who handles them and whether or not people influenced how they are filled becomes a bigger issue.
No, one side thought the Russians fixed the elections through Facebook ads or some such nonsense.
Maybe he got it wrong, doesn't mean that there was no plot to fix the elections.
Governments that are essentially vassals to the US, perhaps. Other governments could also independently find their own reasons to dabble in medical authoritarianism, and join in on the fun using the same existing justifications made-up by the most effective media in the world. "Look I'm not forcing you to stay home to cover up ongoing political issues, see Hollywood has the same problem"
And of course media control made it easy to dismiss outliers like Sweden which did not have any lockdown and was basically fine.
People all-over the world die all the time. I could see a strong incentive from less-developed countries to claim X number of citizens died 'from Covid' if that means they can get or simply maintain existing humanitarian aid from the West
There are only so many military votes you can get even if you made postal voting easier. On the other hand 'democracy'-supporting organizations used to hold ballot secrecy as important prior to 2020, so idk why.
How would they go about it? I'm not in charge of election-fixing for Democrats, so I wouldn't know but it seems you have some experience in their manner of thinking.
Oh man then if Sex and the City said it, it must be true. Out of all the real-estate scammers in the US, Trump is unusually dishonest. He was buying every judge to the point that it took him reaching the Presidency and suggesting defending the Southern border for somebody to finally decide, "that's enough, now we gotta get this unusually dishonest guy!" "Let me find the dirtiest dirt I have on this guy... Yes... This is perfect, the Russian President had some prostitutes pee on him!"
You have Epstein's flight logs? Why aren't you releasing them then?
Oh he promoted him but didn't hire him and was not in charge when the actual ruling happened. But he was in charge at the time Epstein almost saw consequences for his crimes.
If Trump was such a good buddy with Epstein, why are we investigating Trump over some paperwork issues or election quiproquo instead of Epstein? Why not investigate his role in the Covid masquerade?
Show us the flight logs, show us the Pfizer receipts, show us the meeting notes from the FDA, now that would be an interesting investigation.
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I'm not going to contest this point much, but I think there's ample reason to for people believe his misconduct is being handled with a particularly harsh hand for actions that, if committed by someone who has the favor of the elites, get away with minimal punishment.
If calling an election fraudulent and seeking to undermine or overturn the results is bad enough to warrant prosecution, Stacey Abrams should probably have been hit for this too. To her credit, she's quieted down considerably since she lost the rematch in a clear blowout. Not clear that Trump would do the same, granted.
If mishandling classified documents ranks up there, then we of course have Hillary, but yeah, we also have Biden storing them in his garage.
Sexual misconduct? Well Andy Cuomo resigned over that. Would they have brought these charges to trial and sought actual sentencing if he hadn't?
And we really have to remember that Hunter Biden very nearly walked away with a sweetheart plea deal except the deal was so good that it didn't pass the Judge's sniff test. So there's other reasons to wonder what kind of double standards might be at play that makes Trump such a target. REALLY seems like there's somebody's thumb on the scale in both Hunter's and Trump's cases.
Indeed, the fact that Hunter is being prosecuted at all is the main reason I'm willing to believe that there's any modicum of justice left in the Federal Justice system.
So I think your argument ultimately has to coalesce down to "No other person in high political office has committed every single one of these egregious/criminal acts over the course of their career so as to warrant a particularly hard smackdown."
And I'll let my own position on it be more clear:
I think the reason Trump is getting prosecuted is mostly because his political opponents control some of the legal systems which have jurisdiction over him, a weakness which most politicians would studiously avoid.
For example, even if Ron Desantis, in his capacity as Governor, wanted to strike back against those who have thrown political attacks at him, he'd be hamstrung by the fact that most of them don't have sufficient connections with the state of Florida to even be subject to the State's jurisdiction. He currently has the simultaneous advantage of being ensconced in a politically friendly state so if he confines any misdeeds to Florida he has a much better chance of avoiding an eventual prosecution.
Trump, with his lengthy career in NYC and his businesses being based out of New York effectively had his ass flapping in the breeze for politically motivated prosecutions coming out of a state where his 'allies' have no sway.
Similar with Fulton County, Georgia, although We'll see if Kemp steps up to assist on that one.
That's not why the judge rejected it. Plea deals are treated like contracts, and those require a "meeting of the minds" to ensure that both parties know what they're agreeing to. Hunter's plea deal was a confusing and ambiguously written mess. During the hearing, the judge very quickly realized that Hunter's defense attorneys interpreted it one way (expansively, covering Hunter from potential foreign agent charges), and the prosecutors interpreted it another way. This was very sloppy work by the standards of federal court, and it made sense for the judge to give the parties another chance to hash it out (they didn't).
Let's assume that Trump "did everything right" as he likes to say, and committed 0 crimes. How much would you estimate his overall prosecutions to change?
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US Presidents are charged with two crimes on average.
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You know the answer and it's none.
I don't know if people realize how much they're aping Ibram X. Kendi with this kind of argument. Kendi's core thesis is that racial differences of any kind are ipso facto evidence of racism. Why are there more black people in prison? Obviously the only explanation is racism. Hopefully you have the awareness to see the fallacy when it's presented in this manner, as the obvious retort to this explanation is to examine whether there's more black people in prison because they commit more crimes. Similarly, the fact that Trump is the first and only former US President to face any prosecution doesn't tell us the full story. We also have to examine whether he's facing more prosecutions because he happens to commit more crimes. You can't examine the world with selective blindfolds and expect to arrive at the truth.
Out of all the people committing crimes, the US legal system chooses to expend so much effort on Trump. The one President that has not started any war and has actually tried to downsize the war effort.
The one President whose foreign policy actually seems like it was made by an America-minded person. Not somebody working for the military industrial complex, foreign lobbies...
One thing I would not mind Trump being investigated for would be his involvement in the Covid masquerade.
Go ahead, investigate the Trump admin's role in the Pfizer vaccine development, advertisement and distribution. As long as it's not just Trump but every other little cog in that huge machine that took over America for 3+ years.
So many interesting things that could be investigated from torture and other war crimes [in the Middle-East], to Epstein, military-industrial complex influence, Big Pharma corruption, lobbies pressuring government to pressure social media to censor, human and fentanyl trafficking at the Southern border and beyond...
This is your average US politician, but somehow Trump is a vicious criminal that must be stopped now, or something
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The argument that black people aren't persecuted because of their race can be bolstered by showing that they benefit from AA, that the media defend them, and there are sympathies in their favor among the establishment. Plus making a direct comparison with other groups by looking at homicide statistics.
Of course had things been opposite and all were hostile this would actually support the idea that blacks are getting mistreated. It wouldn't support the idea that crime rates are fake, but it could explain why black political leaders are imprisoned.
Political persecution of political opponents is something much more common historically than a group being falsely blamed for having high crime rates. Indeed when that happens, it is better to notice and respond quickly to oppose it than to let it escalate.
Beyond that, there was Russiagate which was in fact a criminal conspiracy to get Trump. One that involved members of the FBI conspiring with the Clinton campaign. This in itself is huge.
We also know that entreched bureaucrats were not friendly to Trump. We also know that outside the USA and even in it we have seen the rise of hate speech codes, and intolerant ideology who are against non leftist and especially the right wing ideology on culture war issues and especially immigration. Authoritarian antinativism is persecuting political opposition today.
When it came to J6 we had unprecedent punishments. Nobody expects those who recently invaded Capitol to be punished similiarly. Actual terrorists who bombed the Capitol of a very far left ideology got pardons and people like Bill Ayers were allowed to remain close to the establishment.
The media is also quite partisan, and does not respond not just to Trump but to what it sees as right wing adjacent including figures like Rittenhouse with objectivity with fairness. The attitude is more how they can "get them".
So these are just some of the reasons why we should not take at face value the idea that the prosecutions of Trump is because Trump is particularly bad criminal. The more fair view is that the faction in control of key institutions have demonstrated hostility both towards Trump and other figures ideologically related and are willing to go after them.
Plus it is possible that partisanship unrelated to such ideological concerns also plays a role but to the extend this is the case, we also have a track record of hostility.
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Alright, I feel like I extremely reluctantly have to be the person to remind everyone that our legislative body was invaded by an angry mob and that a seated session of Congress which was counting electoral votes had to be evacuated in fear for their lives.
It is not unreasonable that the judiciary should think that there should be a trial over these and all the other actions actually at stake in this trial. If there were some dispassionate philosopher-lawyer who cared only for the letter of the law and it's enforcement, I would expect them to want to have a trial on these topics.
I'm not going to claim that the prosecutor or everyone at justice or etc. have no political motivations or desire for revenge or etc. at all, nor that everything is always 100% of the time being done in a perfectly professional and dispassionate way that has nothing to do with politics. Of course that's not true.
But, "The entire point of this prosecution is to hamper Trump's efforts to campaign"?
No, that's a nice side benefit for some of the people involved. There's very plausible crimes being tried here, real things really happened in the real world.
The police opened the doors and guided the mob around. There's direct video evidence of the Q-anon shaman being given a guided tour by police and shown around the place. How exactly can you use the term invaded when many members of the mob were actually invited in by the people meant to be guarding the place? You can drop a reference to January 6 as being this terrible terrorist atrocity that marked the end of democracy in left wing spaces and get away with it, but people are actually allowed to challenge that claim and post the video evidence against it here.
I do agree that there should have been a trial, but I think we would depart very quickly when we start looking at the specifics. There are a lot of people in the government and the security agencies that should have been hauled up before the dock, and I would have loved to give Ray Epps and Stewart Rhodes a few serious questions as well.
Trump actively told the J6 protestors not to do anything violent. If he's culpable in this case then the entire DNC and left wing political apparatus is on the hook for the Mostly Peaceful Superspreader riots, and the case against them is actually stronger than the case against Trump.
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They were invaded by the 2nd politest mob of the covid era. Politest goes to the canadian trucker convoy.
There was only a single death from violence, and it was a protestor shot by security. I think all the other deaths were via heart attack, including the one security guard that people originally claim was attacked with a fire extinguisher.
Nothing was burned down. No one was run over by a car. There were no large scale medieval weapons fights. The "mob" dispersed when asked to.
There were a few groups of FBI informants that roped in a few retards to plan on doing more stuff. They got caught and heavily prosecuted, the same way every other group like this has been caught and prosecuted. The racial makeup and supposed "motivations" of the retards has changed, but the FBI playbook hasn't.
I normally don't care to comment on Trump stuff, but I don't like the massive gaslighting that it feels like we all went through during 2020.
During the summer of 2020 there were massive riots in the streets. Cars, police stations, and businesses burned to the ground and looted. Large physical confrontations in the streets. People out at the wrong time being beaten to death by mobs. It was helpfully pointed out the time that the protestors themselves didn't carry out these beatings or killings. I'm sure the victims of the violence felt much better in their afterlives knowing that their deaths were only tangentially caused by the lawlessness that the protests created.
The health authorities that had insisted on everyone being locked down and not going outside to even mingle within parks also wrote a blank check to these protestors. They were no longer "super spreader" events, but some weird health carve out where protesting police violence somehow made you immune to spreading covid.
That was the context of the January 6th protest. Some people broke some windows and busted down a door, and then a bunch of others just calmly walked through the capital building like they were on tour and took silly photos like it was a fairground. Meanwhile every news station in the country breathlessly talked about the "violence" of the January 6th protest. The same news stations that were talking about the "peaceful" protests that same summer as buildings burned in the background of the newscast.
"They interrupted an important government function" - someone, hopefully not you
No, they interrupted a ceremony of the state religion. The presidential level of politics isn't a place of law and order, its a place of feelings, perception, and group consensus. At most it caused the equivalent of a rain delay, and it was all still done within a day. There was no plausible way that delaying the ceremonies on January 6th would have impacted who was president for the 2020-2024 term. Even if the ceremony had somehow never happened, Biden would still have become president. Because most of the US government acknowledged him as such.
The January 6th incident has caused the media to invent this weird perception that our government is one delayed ceremony away from being overthrown. As if every top leader in the country is a rules following robot, where if the proper procedures aren't exactly followed then they'll just collapse in a heap and stop functioning. We are supposed to believe this despite mountains of evidence to the contrary ... the explicit rules of the constitution have been broken many times, and the typical reaction, if there is any at all, is a collective shrug.
The claim that the Jan 6 mob was polite and peaceful is one of the most astonishing claims I see repeated in this otherwise pretty reality-grounded community. I don't understand how you can make claims like this when we have widespread video evidence of how violent the mob was. Like, are you just unaware of the video footage? Or are you of the belief that the existence of some footage showing peaceful and orderly intruders "cancels out" the violence, like some sort of algebraic exercise? I cannot overstate how baffling I find this.
I'm sorry, what out of the ordinary are you seeing there? At the beginning the Capitol Police just let their dinky barricade get pushed open like barn doors. This act wasn't caused by violence, but simply the accumulated crush of humanity that would occur at any large protest. That it breached the barricades is 99.99% Capitol Police incompetence. Then we go to some people climbing stairs, then walking through open doors. A few go through an open window. But then they just kinda walk around. They keep filling up space as the Capitol Police cede it...the police never engage in anything approaching proper crowd control in the Capitol building (If they just locked the doors the whole thing probably ends there). Then there is some footage of CP surrounded by protestors. Here's how you know its incredibly peaceful compared to a BLM protest: They would be getting stomped on at a BLM protest. If a CPD or NYPD officer was that incompetent they'd likely be dead. Almost all the confrontations on the video are initiated by Capitol Police who aren't engaging in anything resembling proper crowd control. No lines, no use of the natural choke-points and barriers to keep the protestors where they should be, no, instead it looks like a bunch of rogue officers barreling into crowds of protestors one at a time like they are playing Red Rover. At the end we see, seemingly, the one cohort of competent Capitol Police officers holding a choke-point, seemingly a door of some sort. And they get a flag swung at them. So, like, give that flag guy a misdemeanor battery charge?
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Maybe it's you?
Like, seriously; Have you considered that you might have the bias? Even you're example is really weak.
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If that's the worst you can find, it still looks... fairly peaceful?
The crowd is mostly just pushing the riot cops out of position, not even grappling them -- certainly not throwing rocks etc. Like a football offensive line -- the reason it looks chaotic and violent on the officer's side is that their line is too small, and can't stand.
The cops are the ones with the close-quarters pepper spray and wacking people with batons -- the level of discipline in terms of not much striking from the crowd in these circumstances is pretty good, actually!
Yeah, this is the most shocking stuff The Telegraph (obviously a very biased source) could come up with? The audio they spliced in does sound very panicked, but it doesn't match with much of what's happening in the video. I note that nothing was on fire, and the only thing approaching a weapon that any of the rioters used in that footage was a hockey stick (not clear what they were hitting with it, hopefully not a person). Decidedly NOT what you could say about footage of the BLM riots.
EDIT: I mean, I do agree that it wasn't "peaceful and polite". There was clearly anger, and some people went too far.
The Telegraph, referred to as the Torygraph by Private Eye and its readers, is the serious newspaper of the British right (as opposed to the Murdoch-owned Times, which is traditionally pro-Establishment with a mild right-wing bias). They gave Boris Johnson a column after he was fired from the Times for making up quotes, and continued to employ him after several of his anti-EU stories were exposed as fabrications. Needless to say, they endorsed Brexit, Johnson as PM, Trussonomics etc.
Given the lack of a serious right-wing newspaper in the US, the Telegraph is probably the most pro-Trump "reliable source" out there.
Interesting. I admit ignorance here - I just assumed any UK-based newspaper would be very far to the left. (The video itself still seemed pretty biased to me.) Thanks for the correction.
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Then, by my estimation, you're no different than the people who stood in front of the scenes of riots in the Summer of 2020 and declared they were Mostly Peaceful. Sorry.
Can we compare the results of Jan 6th with CHAZ? Which one had children being shot? How to the jail time for participants compare?
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Jan 6th was straightforwardly and very significantly less violent than many and perhaps most of the riots in the summer of 2020. The mob did not show up with guns and begin shooting people. No one was stabbed. The mob did not engage in arson. The mob did not set on individual people and beat them bloody. These are examples of actual, serious violence which were notable or common during the BLM riots, about which a social consensus was rigidly enforced that they did not count as "violence". These elements were entirely absent from Jan 6th, and no other purely physical actions replace them. The Jan 6th mob shoved its way through an inadequate police line, broke some windows, and then took an unauthorized tour of the capitol building. When it tried to push its way into the actual chamber, a security officer fired into the crowd, killing an unarmed woman, and the mob backed off and went elsewhere. Vandalism and theft was extremely limited.
In this thread, as in most discussions, people argue that it's the symbolism that makes Jan 6th significant. They are forced to do that because the simple fact is that Jan 6th was not a notably violent event by the well-established standards by which our society judges such things.
Even if the above were not true, the fact is that our managerial, administrative, and knowledge-production classes did in fact stand in front of the scenes of riots in the summer of 2020 and declared they were Mostly Peaceful. They declared that they were protests and not riots. They frequently ordered police to stand down and allowed the mob free reign. They organized aid and support to those arrested for rioting, declined to identify rioters, declined to arrest them, declined to prosecute them, organized nationwide funding for their legal defense. Many of them publicly expressed sympathy and support for the "protestors", and vociferously attacked anyone who tried to draw attention to the widespread, lawless violence. They zealously prosecuted private citizens who attempted to defend themselves, well outside any reasonable interpretation of the law.
My assessment is that some of them did these things because they thought appeasing the mob would cost less in the long run, while others did it because they recognized the BLM rioters as their allies. Either way, this went on for more than a year, and some parts of it are still going on today.
Now you are claiming that people who disagree with your assessment of Jan 6th are as bad as the pro-BLM riot people. Suppose that is true: so what? The pro-BLM riot people were rewarded with vast political, financial and social benefit from their actions. Negative consequences were extremely rare, limited to only a very few of the most egregious examples. Why should one be ashamed of an action to which no shame or censure seems to attach?
I'm not sure I'm accurately understanding what you're saying. It seems to me that you're saying it's acceptable to lie about what constitutes violence as long as the other side got away with that lie too? I'm all for holding people to their the standards they set, and as such I don't want to hear one bit of whining about January 6 from people who defended the 2020 rioters. But I'm concerned that some people here seem to be actually believing that January 6 wasn't violent and wasn't a bad thing simply on account of the other side being dishonest about these categories the year prior. I think it matters what's actually true and it's important not to become so focused on pointing out the Calvinball the other side is playing that we convince ourselves that falsehoods are true.
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I just watched the video you linked. It appears to break down into two sections: people pushing and shoving with the police line, and people entering the capitol unrestrained. The police line footage is some pretty serious shaky-cam, but I do not see much evidence of serious violence. People are grappling, shoving, pushing each other around. The cops are using pepper spray. It looks significantly less violent than something like, say, this. Once they break through the police line, they walk around pretty calmly.
The phrase that comes to mind is "mostly peaceful".
That particular phrase comes to mind because it was used to describe riots featuring multiple people getting shot by organized, masked thugs armed with ar-15s and AKs. It was used to justify mass arson, absurd amounts of property damage, random individuals beaten and in some cases killed, mass intimidation of the nation as a whole, and the organized application of indiscriminate violence against innocent victims in pursuit of a partisan political goal, with the tacit and occasionally explicit backing of government officials at the local, state and federal level.
It seems to me that you are attempting to appeal to common ground and common sense. You are pointing out that this is, in fact, a mob, and that this mob is, in fact, physically fighting the cops, and that that is violence, so therefore this is a violent event. This is true. But you are talking to people who have made this exact appeal in the past, in the face of considerably worse violence, and who were told categorically by both their social peers and by the government and knowledge-production class as a whole that what they were seeing was not lawless violence, because the violence was a small minority of a given event, as in fact it is in the Jan 6th video you linked. The common ground you are appealing to has already been burned, and there is no way to get it back. This is the closest to a consensus on political violence that you are likely to ever see. It will only get worse from here as incidents accumulate.
That's all I'm saying!
I'm extremely sympathetic to the complaint of the obvious double standard. I don't understand why we can't acknowledge that 1) both Jan 6 and Summer 2020 were violent and bad; 2) Summer 2020 was more violent; 3) people who defended the Summer 2020 riots should be called out and shamed.
Some people seem to have this bizarre need to believe that if Jan 6 is claimed to be more violent than Summer 2020 but isn't, then that must mean Jan 6 wasn't violent or even bad. No! That's not how logic works!
Why should people be called out and shamed for defending the Summer of 2020 riots? Presumably the idea is that by doing so, we punish them for what they did and therefore disincentivize them and others from doing it again, yes?
Can this actually be accomplished? Do you think that we can, from where we stand today, straightforwardly punish or disincentivize the BLM riots or their supporters in any meaningful way? If you had a way of doing this, it would seem to me to be the preferable course of action.
I can't speak for others, but I do not think you can actually accomplish this in any meaningful way, so I see no benefit in pursuing such a strategy. I think your argument is never going to be anything but an isolated demand for rigor. If this rigor could be applied to blue violence, it would have been done during the 2020 riots. If it could not be applied to blue violence in the 2020 riots, there is no reason to believe that it will ever be applied to blue violence. If it will never be applied to blue violence, there is no reason to accept its application to what you agree is significantly lesser Red violence. It is better to either demand that enforcement be meaningfully applied to blue violence first, or to simply accept that the label can no longer function in any meaningful capacity for either side.
It seems to me that this rejection of the label in its entirety is, in fact, the best available punishment for the defection of the 2020 riots. If the way people treated those riots was wrong, if that wrong should have consequences, this is the best possible consequence available to those of us who actually care.
You claim that people are ignoring physical reality. It seems to me that you are ignoring social reality. "violence" is a label, a social tool. It is a word, not an integer or a rigorous equation. It is supposed to be an objective term applied fairly. If it is not used in that way, it would be better to not use it at all, and I think this is more or less the position of the other people you are arguing against as well. You don't get a consensus you can't maintain, and this is a consensus you definately can't maintain.
It's not enough to recognize a double-standard. You have to either remove it, or adapt to it. We can't remove this one, so adaption is the best option available.
Even granting everything you just said for the sake of argument, I still don't understand how that can or should result in someone actually believing in the privacy of their own mind that Jan 6 wasn't violent and bad. Or do you suspect that the people on The Motte claiming such things are being mask-on even here?
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People aren't oblivious to the logic. Well, maybe some are. I dont think most people here. But you said this take was out of step with a community thats supposedly grounded to reality. I think from the responses you can maybe see that it is based in reality - such as it is.
One of the consequences of institutions playing favorites with mob violence is that it causes many individuals to second-guess their own definitions. If the BLM riots didn't qualify as violence in popular sentiment, then who is to say J6 should? Am I being cheeky, or am I being serious? Could you even tell? Honestly, I'm in limbo between both states. Where does 'reality' have a say? That's a socially mediated phenomenon, as demonstrated quite clearly since 2020 onward.
'Violent' is one of those fuzzy terms that can mean anything from a playful shove, to murder, to mean insults. We probably had more national consensus on the thresholds for qualification in prior decades, and then that was wrecked in 2020. That you now see so many (what you regard as) peculiar opinions on this subject shouldn't be too surprising. And while it's hard to often tell if this is sincere or troll-ish (just reacting to progressives 'reality'), I think its often both.
You are! And I am! As intelligent beings capable of reasoning on our own. It's fine to say to a Blue Triber who defended the 2020 rioters, "Hey, if you thought summer 2020 wasn't violent, then I won't grant you that Jan 6 was violent. Your rules!" But you shouldn't believe that yourself in the privacy of your own mind merely because you're rubbing your opponents' noses in their hypocrisy.
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By the standards established by the media in 2020 it was peaceful.
That is my claim.
It is a different claim than "it was peaceful".
The media and most of the country was happy to apologize for a base level of violence and conflict at protests in 2020. I'm not arguing this is a good standard, I'd in fact be happy to return to the old standards. But the old standards for everyone, not just politically approved protests.
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Extreme minimization of the symbolic importance of a mob invading the seat of government. According to this perspective, the march on rome was just a health-conscious bald man taking a stroll with friends. Any state in such a situation is justified in using lethal force, and lots of it, way earlier than the US actually did here. It's a threat to democracy in a way burning the whole city of minneapolis to the ground isn't.
Ah, sorry was there a military general leading armed troops into the capital? I must have missed that news story.
Protests that get talked about tend to either be symbolically important, or violent. There is often a claim that the January 6th riots were violent. I'd say by all standards established in 2020 the January 6th protest was peaceful. Was it symbolically important, yes, obviously.
It wasn't a threat to democracy. It was a threat to the illusion and symbology of our democracy. There is a big difference. A threat to democracy would be something like withholding news of a major medical intervention until the day after the election. Or lying about evidence that suggests one of the candidates has a corrupt family member taking bribes from foreign governments. Or changing the rules of how the elections are carried out and risking massive security breaches in an untested process. Or working with all major social media platforms to censor your political opponents. Those things all hamper a people's ability to govern themselves. You cannot effectively govern if you are lied to, can't talk with one another, and can't trust the means of giving your voice to the government.
January 6th burned the symbol, but the deep state and media were busy trashing the thing it was supposed to symbolize for the last 4 years. We woke up afterwards, looked around and realized the power of the symbol was gone, and you blame the people that burnt it, not the ones that spent all their time undermining it.
Also the Roman Senate deserved what they had coming to them, they deserved much worse than Julius Caesar. It was a morally bankrupt empire that filled its coffers by looting foreign countries. They deserved to be ruled by force, because that is the way they sought to rule the rest of the world. So sad that one of their best looters realized he didn't need to ride all the way out to the frontier to do some good looting. Read the story of Carthage's fall and I dare you to tell me you don't hope there is a special place in hell for those people.
Mussolini, not Caesar, reference, but they were both bald, so understandable.
Same thing. Power resides where men believe it resides. You're telling me about BLM and the democrats did this and that, and I sympathize, but really, it has nothing to do with the issue at hand. Anyone attempting to take the symbol of power by force should die for it, doesn't matter who it is. It's sacro-sanct, like a vestal virgin or a tribune of the plebs. We have elections and stuff to decide who gets to hold the magic scepter.
Also, Rome.
Also, this guy was one of two generals that organized the "militants" for the march.
I mean, the italian army could have swatted mussolini's rabble like flies if vic emmanuel hadn't been such a wet noodle. Caesar's XIII's legion, and later the rest, could not be swatted, it turned out.
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Even by that standard Jan 6th was harmless. Do you or anyone else believe that delaying that event changed who is president, or who won the election?
I made the comparison in another post but I'll bring it up here. Man buys his girl $5000 engagement ring and proposes. A few months later she catches him cheating and throws out the ring in anger.
Man: "You are crazy why did you throw out the $5000 ring?"
Woman: "You cheated on me you asshole!"
Man: "I get that you feel bad and all, but what does that have to do with the ring? Can we please focus on the issue at hand."
Don't ruin the thing that is being symbolized and then complain that someone has trashed the now meaningless symbol. All of the complaints about ruining something sacred sound hollow.
No, it did nothing. But it may have emboldened the next mob, the next coup , and that is reason enough to crush it.
Seems like you’re implying I ruined things, but I’m not blue tribe, american, or progressive. And you owe me one ring. Sex is sex, but money is cash.
I don’t get your point. It’s over, democracy means nothing anymore, is that it? Boogaloo Day? Can’t tell the difference between the worst civil war and your day-to-day life? Wouldn't have pegged you as a blackpill overdose patient.
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Ah, but then the true attack on democracy was the media telling people it was an attack on democracy!
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This happens routinely. Hell, it happened yesterday. For some reason it doesn’t seem important to the powers that be.
I’m just telling you what a self-respecting sovereign would do in his house. Put one of those ‘we don’t call 911’ signs at the entrance, and machine-gun anyone who enters without knocking.
That's honestly what I'd always assumed would happen if someone tried to jump the fence at the White House until this weird incident:
In retrospect, my perspective seems childish, but I legitimately thought that leaping the fence and running towards the White House would get you sniped, or attacked by guard dogs, or... well, at least something.
I don’t think it’s childish, it’s necessary. Current responses are too soft, dare I say, decadent. It is not unthinkable, and it has happened in history, that one day a mob will just waltz in there, slap the president around a little, declare they’re in charge now, and everyone will go: ‘What are we supposed to do, spill blood? We are civilized, let’s just do what they say and hope for the best“.
It comes down to the same disconnect I talked about last time, that somehow public life does not matter, only your private red lines. This is a gigantic collective red line, representing an almost unfathomable amount of lethal force directed at everybody. If it is not defended, nothing ever should be.
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Well Biden's got the attack dogs covered now I guess -- the Secret Service will need to pry them off of themselves first though!
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Arguably that is the most important government function. The shared illusion we all (for a given value of all) pretend to believe. The ceremony is more important than the actual way the system works. Any threat to that isn't a physical or procedural threat, it is in fact an existential threat to the entire edifice. Almost any type of government from feudal to oligarchic to democratic to republican has legitimacy as long as people believe in the ceremonies, whether that is the crowning of the King enshrining their Divine Right to rule or the counting of electoral college votes enshrining the victor has been chosen by The People.
We can run out onto the air off a ledge as long as we all agree not to look down...
A ceremony is supposed to symbolize something.
In this case a ritualized agreement that 'hey it was a good fight in the election, but we all agree it was fair, and we will now crown the winner'.
The obvious problem is that it didn't actually symbolize that for a decent portion of the country. I personally believe the actual votes were generally tallied correctly, but that it was not a "fair" election in many other senses of the word.
January 6th broke the symbol, but they certainly didn't break what it was supposed to symbolize. That was slowly broken over the preceding four years, and then quickly and fully broken in 2020.
I also generally believe that attacking symbols of a group is a bit more civilized than the alternative ... which is just directly targeting people in that group. When foreign protestors burn the American flag, its sometimes because they don't have an actual American to burn or behead. Taking a crap on pelosi's desk is better than showing up to her home and taking a hammer to her husband.
Oh sure, they had already lost faith in the symbology, for sure, they had already looked down so to speak. And on a personal scale you are correct attacking a symbol is much less severe than a person.
On a civilizational scale though, people are replaceable, shared symbols are not (though their physical representations can be). Very few people are as individually important as a shared belief system to the stability of a polity.
It feels very much like blaming a whistleblower for the crimes they uncover.
Or the toxic relationship equivalent of a guy calling his ex-fiancee "crazy" for throwing away the engagement ring when she caught him cheating. Yes, I get it dude, it was a $5000 ring, but maybe its your fault for cheating and ruining the relationship in the first place?
What people tend to forget is that a symbol being destroyed only really matters when the thing it symbolized has been hollowed out and rendered useless. If there had been a freak accident and the capital building was rendered unuseable on that day in January 6th, would democracy have been in danger? No, obviously not. They would have just reconvened and done the thing again. If that $5000 ring had been lost but they were a happy loving couple, its not like they would have called the wedding off. Even when the Capital buildings were burned down in the war of 1812 it was not a real threat to "democracy" or republican rule. Those institutions were strong at the time, and it meant they just put the symbol right back up and it continued to have meaning. And the fresh coat of white paint to cover up the burnt sections just became a fun new little tradition.
Sure, we're looking at a meta standpoint here. At this level we're not looking to blame individuals. At this level their behaviors are outcomes of society wide events and situations. Jan 6th is a symptom, and part of a cascade.
If you want to arrest the cascade (ie, you think the illusion is still worth propping up) you might need to take action against individuals/groups. But at this level they aren't specifically to blame, more agents of what social events are going on.
Is prosecuting Jan 6th protestors going to be the white coat of paint? Or the catalyst for further symbol failing.
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I want to emphasize the flip here once again, because I feel that many people either fail to remember how extreme it was or claim that it was exaggerated. In back-to-back blog posts, my county public health department went from this school-marm scolding:
To this endorsement of mostly peaceful protests:
...
There's some pro forma muttering about continuing to wear a mask, but it is just absolutely wild to imagine the shift from telling people that playing Frisbee is too dangerous to saying that the protests are "essential".
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I'm pretty sure the point of this prosecution is to put Trump in prison.
That would indeed hamper Trump's efforts to campaign, but I honestly think they would prefer it if he was ostensibly free yet unable to actually talk or campaign. I think putting him in prison and actually sending him to gaol would be too big of a boost to his campaign - a lot of swing voters find things like putting the opposition candidate in prison for spurious process crimes while ignoring serious corruption and malfeasance committed by your son to be somewhat offputting.
It's really weird to me how many people (including Trump himself) can apparently only see these cases through the lens of their political implications.
The plan isn't to smear or discredit Trump and therefore make him unpopular. It's to lock him up for the rest of his life.
Why should the political implications not predominate in the mind of anyone but Trump himself?
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He’s never getting locked up for the rest of his life. The state cases he can avoid by staying in a red state, and the federal cases he will - at worst - be pardoned by the next GOP president.
Trump's 77; life expectancy for 77-year-olds in the US is 9.3 years. "The rest of his life" is not likely to be that long.
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I don't think that works.
At least since 1987, interstate extradition is not optional, and governors must cooperate with an extradition request so long as the paperwork is correct. And even were a red state governor willing to flip the bird to SCOTUS (or order his entire executive branch to pretend they can't find him under a lamppost), and willing to get jailed for contempt themselves when they receive an order from a court, the federal government has a pretty big branch capable of serving arrests and then finding out whether the arrests were 'right' or not later.
((I'm... also skeptical that a Republican President other than Trump pardons Trump.))
A red state will keep him and have him guarded by the state guard or state cops, and the US Marshalls aren’t going to start a civil war. That in turn will lead to a further standoff and years of legal issues.
Trivially, you need state guard or state cops willing to deal with Trump in person, and Trump not doing something stupid, and nothing Weird happening with the Secret Service.
More seriously, that's the sort of behavior that gets federal jurisdiction in the courts and a very quick contempt of court orders for the gov in question. If the US Marshalls don't want to do it, the courts have fun tools that don't involve them. (Fines per day?)
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Are those not the same things? If Trump was some other dude most of these charges would never be filed. Atleast half the charges are novel legal theories. The only case that doesn’t seem to be a novel legal theory would be the documents at Mar-a-Lago.
I agree with you the goal is to lock him up for the rest of his life because then he can never run for POTUS again.
It's pretty novel too -- previous presidents have all had large collections of classified materials that they were allowed to go through (in their own good time!) prior to submitting to the archives. I think most previous presidents retained their clearance and were allowed access to current classified materials, actually?
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Why not? Unlike Debbs, Trump might actually pull it off, which would be a lot more damaging to the regime then giving him a second term.
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In this case, the political implications really do override, because it's a federal proceeding and therefore if he wins the election from jail he just pardons himself to get out.
I still think the funnier outcome is SCOTUS tells him he can't pardon himself and he has to rule from jail or give even more weirdly convoluted orders to the feds to get out.
Better would just put him in solitary and refuse to administer the oath of office, then per Article II he can't exercise any presidential powers.
Are you serious?
Remember that he won an election in this case given that we're talking about pardons. "Hey I know you won the election, but the losing side decided to put your president under arrest so you actually lose the election anyway." is not a message that would go over well with the general populace.
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That's true of the federal cases, but he can't pull that trick with the Georgia RICO case.
Hence FirmWeird's "this prosecution" and my "this case".
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See, the problem is that doing this will actually make Trump's cause stronger, and while they would like it if he was locked up for the rest of his life... that's not something they're going to be able to do before the election without severe and serious consequences. I agree that they aren't doing this to discredit him and make him unpopular, but I never actually made that claim. The claim that I made was that the goal is to hamper his ability to campaign - and that's actually a very reasonable assumption, especially when you know the broader history of the efforts from within the government to defeat him.
The documents case and the Georgia case will take longer because they're more complex, but it seems pretty clear the federal Jan 6 trial will happen in March. It'll take a while, and sentencing will take a while after that, but he's most likely going to be in prison during the conventions. Consequences be damned.
Perhaps he could use the time to write another memoir, this time about his political struggles rather than his business career.
The Art of the Steal, perhaps?
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I must say that's pretty funny.
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That would be extremely good for Trump's chances at re-election, but I don't actually hope for this outcome because I think the destruction of norms governing the prosecution of opposition candidates is far worse.
Not necessarily. It would be extremely good for Trump's popular support, but a conviction here would be used to buttress the efforts to take him off the ballot under Amendment XIV. Doesn't matter how many people support him if he can't be voted for.
Of course, that doesn't make it a good idea; the real result of taking Trump-as-Republican-nominee off the ballot isn't "Democrats win by default", but rather "civil war".
Honestly, I only see three ways out of this without Boogaloo: the Democrats can realise this is literal suicide and relent, the Republicans can nominate someone not Donald Trump Sr., or Trump is not able to run for reasons other than "banned" (e.g. being dead).
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The norms have already been broken. The best outcome for norms is for the prosecution to be successful but Trump to win in a landslide and be gracious in his victory. Presumably no one would try and pull this shit again after the electorate rejects it.
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I'm glad you commented on this because I wanted to ask something in the same area of a judge imposing a gag order.
It's always seemed to me that charges of "Obstruction of Justice" or "Contempt of Court" are small tyrannies of the justice system. For obstruction because I view it as only applicable to what is already a crime--theft, assault, murder--where it would be considered an aggravating factor, but that otherwise one cannot obstruct justice in itself as a crime, such as by nonviolently resisting arrest (fleeing police). For contempt because in part I view it as a fundamental right to be contemptuous of court, and more because of examples such as H. Beatty Chadwick who was imprisoned for 14 years for failure to comply with a court order. It does seem like he hid the money, but that the judge & courts could do nothing but threaten him with prison strikes me as "a 'you' problem"; that his "crime" was in no measure deserving of incarceration, or if so, certainly not 14 years; that if it is supposed to serve to discourage others from doing the same that breaks us into the topic of ordered alimony and the enforcement thereof as a reasonable interest of justice and, ah, lol. lmao.
I'm open to being wrong on the theory level but it seems the practice level is full of abuse.
That's a crazy case, I never heard of anything like that before. At least at the federal level, the maximum penalty for refusing to obey an order is 6 months. It's 18 months if you refuse to testify in front of a grand jury. So maximum limits can be one option for mitigating the potential of abuse.
My favorite case in this genre comes from when our boy Rudy was still a federal prosecutor back in 1985. Four people robbed a bank of $11M, but one of them was acquitted at trial. They only recovered $1 million and so the last guy was ordered to testify where the money was, and since he was acquitted he had no right to remain silent. He refused, the court jailed him for contempt, but eventually reluctantly had to release him because:
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I'm beginning to think marriage should be an agreement only between two never married people and for any future arrangements involving at least one previously divorced partner should be explicitly drawn up with a clear agreement defining the relationship terms, including termination clauses, prior to the union being created (including collateral deposits).
I don't know what problem this would solve. If one partner is already wealthy they can get a prenup to protect those assets. And most couples don't have the kind of assets that make splits particularly problematic or burdensome anyway, especially since most women work these days. Alimony is pretty rare, and when it is ordered it's usually either a one time payment or limited to a brief duration (like 2 years) while the burdened spouse gets their life together and finds a job. Some guys still get soaked, but hey, they knew the rules going in and no one told them they had to get married. We learn from our mistakes...
Taking any measures that would make divorce easier, even if they make divorce easier by making it fairer, signals lack of commitment to the marriage, so people won't do it unless they are so rich that they can countersignal.
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It helps society because it stops all the serial divorcees from marrying again (marriage being only the union sbetween two never married people) and driving up the divorce statistics.
Second it forces both parties to second unions to make explicit exactly what they want from the union and both agree to all the terms before they can enter. If he expects certain household tasks, they both need to agree to a contract that includes that, if she expects alimony the contract needs to include that.
It means both parties enter with a clear understanding of the full terms of the relationship and puts the negotiation of the trrmination at the beginning of the relationship rather than the end.
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14 years is a long sentence, but he made it that long by refusing to purge his contempt. So this is a tricky one, it's based on a divorce where there is "he said/she said" about the marriage (was he miserly? did he make his wife do the kind of work that a gardener/landscaping service etc. would be hired to do, at their level of wealth?) but the immediate contempt seems to be him lying about the money. "Oh, I lost it all" (no, he sent it overseas to various accounts to stash for him to use in future).
So the case is not just about "pay your ex-wife the alimony", it's about lying to the court (and possibly dodging tax and the like with this kind of transferring money all around but that's a different matter) and continuing to lie.
"Do not lie to the court" seems to be a principle we need, and if you do lie and are found out, then you should be punished. What kind of punishment, though? A fine? He's claiming he has no money to pay fines. So then jail - and yeah, that ends up with 14 years because he's hoping to call their bluff, get out, and go fly off to be with his 'missing' money (the second link says he attempted to flee the country before being arrested, so why do that if you honestly are penniless?)
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He could have, by your own account, avoided the prison sentence entirely by coughing up the money. It isn't a miscarriage of justice that a man decides he'd rather spend 14 years in jail then cough up the cash for his ex-wife. It says more about his own issues then it does the justice system.
Alternately it might say something about the ex-wife.
Seems she was his second, much younger, wife and the marriage seems to have broken down over money - he was (allegedly on her part) wealthy but mean, gave her an inadequate budget for the house, and expected her to do work that someone of their status would hire a maid/gardener to do.
Who knows what really happened there? But preferring to spend 14 years in jail does seem to indicate he really does want to hang on to every penny, so maybe he was miserly and expected her to keep up the facade of an opulent life on very small allowance.
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What does that mean? Contempt of court is ignoring the authority of the court. No one can stop you from doing that, but the court has to have the authority to bring you into compliance. To say that they can't do that is to, in effect, say that participation in the legal system is voluntary. Do a crime and then just say no to prosecution.
Indeed, and if Thomas Hobbes and Edmund Burke were alive today, they would be spamming the :Yes_Chad: meme in chat.
I somehow doubt that either Hobbes or Burke would endorse the premise that one ought to be able to simply refuse to be prosecuted for murder. And even if they did, I'm not sure why that would matter.
It's not that they "ought to be able", it's that they ARE able to. Hobbes' core thesis is that participation in society is a choice, and that it's a choice that ought to be made gladly because the alternative is to be "red in tooth and claw".
To put it another way, the laws of men (and women) are not self-acting, there is no natural force that can prevent an "indoor" cat from walking out an open door, or compel a stubborn 7 year-old to eat his vegetables. Thus agency and by extension responsibility must ultimately reside with the individual.
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Rather they explicitly tell the reader that it is impossible to stop someone from refusing to be prosecuted for murder. You may move then the conflict into force of arms and prosecute it violently, but it isn't in your power to stop them from refusing. Which is important because such practicalities are how natural law is derived.
There are countries to this day, such as Belgium and Germany, that do not view escape from lawful captivity as an offense in and of itself, and the legal reasoning for this originally derives from such principles of natural law.
There are certainly arguments for contempt of court as an offense, but it can create absurd situations very easily, consider the following:
You are a US citizen in possession of a corrupted hard drive that contains random data. You are taken into custody for possession of illegal materials, and are ordered by the court to decrypt the hard drive. You can now be jailed for up to eighteen months for refusing to comply with an impossible order.
The powers vested in the judiciary are important, and the source of their legitimacy is equally as important in making sure they are not abused. Some argue that refusing prosecution that violates one's political rights by force of arms isn't mere right but a duty. And this is especially relevant in a nation founded by such people.
No, you can't. "'A party's inability to comply with a judicial order constitutes a defense to a charge of civil contempt.' Affordable Media, 179 F.3d at 1239." Berland v. The Conclave, LLC, SD Cal Case No. 20-cv-00922-H-WVG (2022) (Order Denying Petitioner's Motion for Order to Show Cause Re Contempt). Which should be obvious, given that the statute you link to explicitly says that refusal to comply must be "without just cause."
Random data is indistinguishable from data encrypted by a good encryption scheme. You cannot prove that a set of random data isn't actual data that has been encrypted, apart from trying all possible decryption algorithms with all possible keys and showing that none of them yield legible results.
This is true in theory, but how true is it in practice for laypeople who are using relatively common software out-of-the-box? My guess is that most common encryption software puts metadata in the clear concerning which algorithm they're using, PBKDF iteration count, and such. I think that's because for most common uses, the model is not that you need an actual blob that is indistinguishable from random. Instead, most uses are more than happy to have it be clear that there is encrypted data, clear which algorithm is encrypting it, and simply relying on the security of the unknown password.
When it comes to government demands to decrypt, generally the State has to go to sufficient lengths to show that there is, in fact, encrypted data and that the individual in question does, in fact, have the means by which to decrypt it. One example argument is, "We've seen this guy unlock his phone. In fact, ten minutes before we arrested him, we have him on video unlocking his phone, then setting it down, appearing to have no cognizance of the fact that we were about to arrest him. Further, he was not able to touch his phone between then and when we scooped it up." I'm not sure whether judges would generally be as, uh, reasonable about this sort of demand when it comes to their inherent contempt power as they are when it comes to requests by the prosecution to compel decryption.
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Defense that it is entirely at the court's discretion to honor.
What stops the judge from saying "Nah, Fuck you, we're going to charge you with contempt anyway"?
The answer is "nothing", you are appealing to a consensus that does not exist.
No, I am correcting OP's incorrect statement of the law.
A higher court is what stops him. "Discretion" does not mean, "I can do whatever I want." Judges are reversed for abuse of discretion every day:
City of Sacramento v. Drew, 207 Cal. App. 3d 1287 (1989)
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As I understand the jurisprudence as laid out in that order, the court decides what is or isn't a refusal without just cause, and though impossibility is of course a defense, the burden of proof is on you to demonstrate impossibility "categorically and in detail".
Of course we're setting up this hypothetical in a way that makes you indistinguishable from someone who does have an encrypted drive. And it seems mighty difficult to prove that this was never an encrypted drive when there is no way for you to do so, by design.
"I've forgotten the password" has almost never worked as an excuse as you know, and "This drive is empty and always has been" I don't think would fare much better. Ultimately it puts you at the mercy of whether the court thinks you're a liar or not. Which is the whole problem here: we are definitely in the realm of small tyrannies.
Thankfully, judges usually have better things to do than throwing random people in the slammer, but I wouldn't say it can't happen.
I don't see why this is any more perverse than any other example of "you can be unjustly fucked if a court makes an erroneous factual ruling against you"
"Is this apparently unreadable hard drive encrypted under a key controlled by the defendant?" is the same type of question as "Did she say yes?" - it is in principle a question of fact, not opinion, with a single correct answer, but the practicalities of determining it are that the jury will be making a subjective determination based on multiple pieces of circumstantial evidence. Courts decide these types of questions all the time, and need to. And an innocent person can be totally fucked if the court gets it wrong.
A world in which nobody could be criminally convicted based on circumstantial evidence is a world in which a lot of crimes are effectively decriminalised.
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SBF could have sure benefited from a gag order.
Nah, he'd just be in jail for violating the gag order rather than violating the other terms of his release.
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It seems weird to me that you could be allowed to lock a person up pretrial and very substantially restrict their actual freedom, but not be allowed to ban them from making up false accusations against law clerks. The former seems a much more serious imposition, but it's absolutely routine.
Obviously pre-trial detention happens when the safety of the community needs to be assured, but surely a similar rationale applies in regards to Trump. He's deliberately whipping up mass anger against the people involved in his prosecution, and posting personal info (such as Letitia James's address) that enables one of his crazy followers to go do something vicious.
This anger will exist regardless, and kinetic action should be expected. It further delegitimizes and already illegitimate proceeding to issue such gag orders, and that is exactly how a hundred million Americans will see it, and nothing the court can do will change that - their only winning move is not to play. But they can’t help themselves.
True, but allowing the pot to be stirred to the point of death threats and violence is probably going to make things worse. If the gag order means that Trump cannot angry tweet his internet mafia into going after the judges, court officials, lawyers and witnesses, then there’s a good chance that the trial can proceed in an orderly manner and Justice will be done.
And if he’s tweeting about this without his attorney telling him not to, he has a terrible lawyer as this can only dig his hole deeper. It’s not hard to see how him stirring up his base and tweeting the home addresses of those who will testify against him can be brought up in the trial and bias the jury against him.
No there isn't, the whole premise of the trial is political. Is justice about to be done by partisan hack judges because those same justices decided that Trump isn't allowed to talk about it?
Tweeting the home addresses of court officials and witnesses is a pretty serious thing, especially given the anger of his base is pretty much asking for something to happen. I don’t see it as unreasonable to stop him from doxxing people and stirring up the base to do something about the unfairness of it all. I think not only is it dangerous to those people, but that it ultimately hurts his defense.
I don’t think this order means he can’t talk about the case or proclaim his innocence. My reading of it is more that he cannot specifically name people involved or give out identification of people testifying against him. He can still talk in general terms about the case, he can still make statements in his own defense about the charges. He just can’t say (SlowBoy (inserts photo of SlowBoy) is lying about me and persecuting me and preventing me from helping you by restoring America). He can say it’s political. He can accuse generally that witnesses aren’t telling the truth. He can campaign. He just can’t name names and post pictures of court officials and witnesses.
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The hundred million people who will decry this gag order had already made up their mind about whether the trial is legitimate. Not much could happen to make their reaction any worse.
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Here in America, speech is actual freedom, my man.
Be that as it may, being able to leave a jail cell is also actual freedom, and it is common to deny it to criminal defendants.
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Eh, when freedom’s tested, you’ll still find that you don’t have as much freedom as you think you might.
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I think not. If it's witness tampering, charge the appropriate crime. If it's obstruction of justice, charge appropriate crime. If it's interfering with government proceedings, charge the appropriate crime. If it's speech that nods in the direction of one of those but doesn't actually rise to the level of meriting a charge, tough shit, defendants do actually get to say mean things that aren't criminal.
I can recognize the difficult balancing act that some utterances would cause here, but ultimately just side with First Amendment rights dominating those considerations. Perhaps even more to the point, I don't trust judges to not thoroughly abuse their authority. To wit:
Of course! I'm not dumb enough to do such a thing, but the idea that those that would affront a judge could be punished for offending rather than any actual criminal action is an affront to my sensibilities and leaves me disinclined to start granting additional judicial powers to remove constitutionally protected rights as they see fit. If we lived in a hypothetical world where Jack Smith was indeed engaging in a deranged witch-hunt and the judge was a biased, Trump-hating judge, it would be very bad to deny the defendant the ability to say so.
I think this is a reasonable position. My pushback is that the purpose of gag orders are to prevent the harm before it happens, rather than punish it afterwards. As @AshLael echoes, witness intimidation is extremely difficult to prove. The only times I've ever seen charges filed for this is when the guy was dumb enough to threaten a witness on a recorded jail phone call. Other times, witnesses refuse to testify fairly commonly. They either just make themselves difficult to reach, or outright refuse (one guy told the prosecutor in one of my cases out right "That's my aunt, I'm not testifying against her" and they dropped the charges even though there's no nephew/aunt privilege). So if a witness is unavailable, we very often have no idea exactly why.
The other issue gets into how gag orders are enforced. This is generally shuffled under the broad "contempt" power of the court, and overwhelmingly the punishment for violating a court order is either a revocation/modification of your pretrial release conditions (as happened with SBF) in criminal trials, or monetary penalties or default judgments in civil cases. Outside of the pretrial release context, actually jailing someone who violates a court order is extremely rare, and that's because generally as soon as the threat to liberty looms over someone then they're entitled to an attorney and due process protections similar to an actual trial (jurisdictions vary on this). A gag order or the like sidesteps some of those concerns by warning the person ahead of time that they'll be punished if they do X, and knowing that they're being watched tends to have good dissuasion power on its own.
Setting aside the difficulty in proving witness intimidation, there's going to be a calculus on the part of the defendant. For your "criminal enforcement" plan to work, the penalty for witness intimidation has to be at least as bad as the crime they're accused of, and then you have to add more time to factor in the chance they won't get caught. If the crime is already a life sentence, then there's no deterrence to witness intimidation. That's why courts deal with this concern in criminal trials by just keeping the person in custody before the trial. Again, better to prevent it from happening than try to punish after the fact.
So overall I don't see a practical solution to this concern except through a pre-emptive order.
This makes perfect sense, but I think it also lays bare exactly why I'm so suspicious of this judge attempting to use such an order at this time. OK, sure, I could use my imagination a little bit to think about situations where a judge could reasonably warn Tony Soprano that he may not Tweet about how he doesn't want anything bad to happen to people on the way to court in ever so slightly less threatening tones. But really, what exactly do we think is going to happen here? I could see someone being inconvenienced or publicly berated as a result of their testimony, but it seems like there's just no legitimate risk of a relevant witness informing Jack Smith that he's busy showering that day or something. The court will know where these witnesses are and I really doubt any of them will actually be prevented from testifying. Trump seems much more likely to cause witness irritation than witness intimidation.
Of course, that's digging back into the object-level. I can see the case for broader powers when hard-to-detect witness intimidation is plausible, and it's not hard for me to imagine organized crime situations where that would just about be the default operating procedure.
This may end up being true, I think the motivation here is that the courts don't want to take any chances, despite knowing they can't stop everything. I don't think you'd claim that what Trump says doesn't matter at all, right? There's always going to be at least some people at the margins that might be swayed one way or another. There's already a woman who called Judge Chutkan and left a voicemail saying "Hey you stupid slave nigger, you are in our sights, we want to kill you." and "If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly, bitch. You will be targeted personally, publicly, your family, all of it." This woman has a history of calling other officials with similar threats, and her dad says all she does is sit on the couch watching the news every day and getting shitfaced on beers.
So she probably doesn't have the wherewithal to actually get off her ass and actually carry out the threats. But there's 330 million people in this country, if someone out there can get so enmeshed in Qanon lore that they drive themselves to DC to rescue the kids in the pizza shop basement, that's a lot of unknown variables.
There's people that will leave insane voicemails no matter what Trump says. I'm willing to grant that it's theoretically possible that absolutely nobody is swayed by what Trump says. but the court system has no reason to take that chance, especially when Trump's attacks are so irrelevant and pointless.
They're also drowned out. Like, in a normal case where John did some crime and wants to intimidate Jim into not testifying, nobody else in the world gives a shit. Jim gets pressure from John, and that's it.
In this case, everybody else in the world gives a shit. Every media outlet; every power broker; every cop with a badge or prosecutor with a half-baked charge in a different jurisdiction; everybody is already pressuring potential witnesses up to eleven. To slightly butcher a line from an evergreen Onion skit, some want them to do one fucking thing; others want to do some other fucking thing. And they're all perfectly legally allowed to do all sorts of shit to pressure them (even if they're not technically allowed by the rules; ain't nobody gon' prosecute them). The only person in the world who is not allowed to pressure them is Trump.
If you want to argue for a rule that defendants should be allowed to pressure witnesses, I'd be very eager to read it.
I think I was pretty clear that I was pointing out how this case was an exception.
Though, I sort of like Nybbler's point. Would you support a rule prohibiting the prosecution... actually, the State as a whole (including, see Biden v. Missouri, the State pressuring third parties to pressure witnesses)... from pressuring witnesses?
I respect @The_Nybbler 's stance because it's consistent and stated with clarity. I don't want to obfuscate your point here and so it makes sense to distinguish between pressuring the witness to tell the truth, versus to lie, versus not testifying at all. In terms of my own position, pressuring witnesses to tell the truth should always be fair game for everyone (I might endorse exceptions but none come to mind), and pressuring them to lie/withhold should always be punished or discouraged. In the scenario where only one side is "allowed" to do the latter, then ideally we make them stop doing it, but if that's not possible then I would echo Nybbler's call for equivalence as second best (not ideal given the potential for spiraling out).
So I don't know what you mean exactly when you say "pressure". Trump's interest appears to be having witnesses not testifying, and that's bad.
FYI when I said that Trump's attacks are "irrelevant and pointless" I was referring to this attacks on the judge's clerk and the families of prosecutors. None of them are witnesses, and I don't see what goal he's achieving besides a blanket reprisal campaign.
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I've seen a case where prosecutors sent Child Protective Services to take away a witness's children, so they could make a deal for said witness to get their children back if they testified against the defendant. If that's allowed (and it is), than pressure from the defendant should certainly be allowed. If you tie the defendant's hands while giving the prosecution free reign, you're making a mockery of the system (which, to be fair, should be roundly mocked).
It's a very principled stance and I respect that.
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What about potential intimidation. My understanding of the reasoning is that Trump and/or his followers might threaten people involved in the case thus basically making it impossible to get witnesses to testify. If Trump tweets out the name and likeness of someone connected to the trial, his followers might threaten them or damage property etc.
As above, charge him or don't. If he's engaging in witness intimidation or conspiring to do so, that's a crime and should be treated accordingly.
I disagree with this on the basis that there is (intentionally) a gap between the crimes you can commit and the crimes you can be convicted for. "Beyond reasonable doubt" is a high standard. Also even if you can prove it, a criminal prosecution takes time and there's value in stopping the misconduct more quickly than that.
E.g. we don't require cops to prove beyond reasonable doubt that the guy with a knife is definitely going to do some stabbing before they mag dump him. We think it is reasonable for them to act to protect the community when he makes a sudden lurch that looks a lot like intent to stab.
Ah, I see we're in the 'words are tantemount to literal weaponized physical threats' territory for speach-restraint advocacy now.
Depends what the words are. But yes, words can certainly be used to intimidate, threaten, or encourage violence. And all of those things can make it quite difficult to run a trial.
Those first two are fair, but silencing someone to prevent that last one is, generally speaking, beyond the pale in the US.
The right to advocate for violence, in the abstract, especially at a later date, has been ruled to be constitutionally protected speech in both Brandenburg v Ohio and Hess v Indiana.
I mean, yeah? But we, as a country, haven't generally been optimizing for ease of running a trial. We have, generally, been optimizing for not allowing speech to be suppressed. Do you have an argument for why now is the time to pivot?
Pivot? I was under the impression that gag orders are a longstanding practice.
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Except that’s where the proof comes into play for the police, because intention always precedes action. And if the former and be proven beyond a reasonable doubt, it doesn’t really matter that the latter was able to carry out the act successfully.
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I'm not sure why it's important to discredit a witness in the public eye, instead of at trial where you're allowed to say all those things directly to the judge and jury.
Especially in light of the negative externalities to the system itself, ie if we allow defendants to make witnesses and judges and prosecutors and jurors lives a living nightmare right up until the line of 'definitely undeniably direct tampering', then that sets a precedent where no sane person wants to fill any of those roles, and the process of justice is impeded.
Also, I agree that a fairly narrow range of things that someone might say about their trial should qualify as tampering/intimidation. However, defendants have a strong motive to preferentially say those things, and therefore we should a priori expect a lot of the things they would say to fall into that category, and therefore expect proper gag orders to cover a lot of their actual intended speech.
I actually think it is a good thing that attempting to launch a spurious prosecution of the leading opposition candidate in an election year makes your life a living nightmare. It isn't like the indictment is secret or anything - the rabid Trump supporters can just go read Judge Chutkan's name in a newspaper if they really want to find out who she is. And further on from that, it isn't like Trump needs to tell his followers to do anything - they are going to perceive (correctly? who knows) that the deep state is trying to prevent them from having their voices heard in the democratic system, and that's going to make a lot of them angry.
If the prosecutor doesn't want to make her life a living nightmare, she can simply avoid doing something which a vast majority of the country views as an unconscionable assault on democracy and their ability to have a say in how their country is governed. It isn't particularly hard to avoid charging your political opponents with offences on shaky grounds while letting even worse behaviour from your own side go unchecked - I don't think there's a single poster on the motte who's managed to commit that particular blunder.
Just over half -- 52% -- think Trump should have been charged with a crime in this case, while 32% said he should not have been..
Also, see my response here.
Also, OP is talking about the general case here. If you want to write into the law a separate clause for 'political candidates currently running for office and also on trial cannot be issued gag orders', that's something we could discuss (I'm against), but it doesn't really answer the general question we're discussing here.
I don't think your response in that other post really says anything worthwhile with regards to this conversation. Whether January 6 was actually a serious, deadly insurrection or not is an extremely partisan issue and still a matter of active debate, so calling back to it isn't going to convince anyone who hasn't already accepted your premises. A plausible reading of the events of January 6 is that the federal government made the protests worse on purpose in order to have an excuse to crack down on right-wingers - in which case appealing to how terrible that event was is just an argument against your own position.
As regards to the general question, my position is that the prosecutions are largely spurious and politically motivated, due to far more egregious crimes being ignored or treated with absurd amounts of leniency (did you ever read Hunter Biden's proposed plea bargain? I mean holy shit), and we already have big norms and principles against partisan prosecution like this. The incredibly overbroad gag orders like this are just comically absurd on the face of it - I find it extremely hard to believe that you'd be ok with Texas launching investigations into Biden, Harris and any DNC spokespeople for corruptly profiting from the Ukraine war, arranging for important court dates to overlap with important campaign dates, and then issuing a gag order preventing them from speaking negatively about any potential witnesses that includes every single member of the Republican party. I'd support a more general principle that gag orders should not be applied to political candidates, but it beggars belief that you'd be ok with what's happening here if the political valence was flipped.
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This is basically a lie the government tells. The cop will tell you to save it for the judge. Your attorney will tell you not to talk to the public... AND he won't want you to testify at trial, and if you do it won't be you telling your story but a very formalized thing where the prosecutor asks you questions that make you look guilty no matter how they are answered, and your attorney asks you questions which make you look good if you answer the way he told you. You'll basically be moved through the system without ever actually having a chance to actually give your side.... even if you're not convicted.
That's interesting to know, and I believe it for the average person who gets a public defender, which is enough of the cases in existence that it's very relevant to the overall question.
In the specific examples here, though, do you really think that's what it will be like for Trump? Or would be like for the hypothetical rich newspaper owner?
I have the intuition that, if you're paying for your own team of 5 or 20 lawyers, you get a lot more time to talk and a lot more discretion over what you say.
But I have never actually watched any court proceedings in detail, so I could still be wrong.
For Trump it's even worse, because his lawyers know not to push his case too zealously or they'll end up prosecuted too, like Giuliani, like Cohen, like Powell.
There's a pretty big distinction between zealous representation and defamation. Participation in a matter of public importance doesn't give you license to make shit up out of whole cloth.
More importantly, there's also a difference between zealous representation and election fraud.
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Indeed, as large as the difference between being a Democrat and being a Republican.
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Say you are a real estate developer trying to sell condos in your building. Girl who you had a drunken hook up texted you the next day saying how much fun she had with you last night.
You ignore her text. 2 weeks later she claims rape. It’s in the newspaper. Suddenly your name is tarnished. Everyone in town now views your condo building as feeding money into your pocket. Sales slump.
Now do you see why this hypothetical real estate developer would have a reason to hit back in the media? He’s being significantly punished (maybe leading to bankruptcy) without ever being found guilty in the court of law.
Of course Trump has motivations to hit hard against the judge and prosecuting attorney. The more partisan they appear the more it makes him look better and get the marginal voter.
Your hypothetical didn't actually mention anything about a court case in which a judge could issue a gag order... I assume the idea is supposed to be that the court case is underway at the same time it's in the newspapers, and the protagonist will eventually be found innocent, but only after their reputation has taken a hit, and the reputational hit either won't be reversed by alter being found innocent, or too much financial damage will already have been done by then?
I guess what I would say is that 1. that sees like a really narrow case (most cases don't go to newspapers while they're happening, most prospective buyers probably aren't reading the local newspaper or googling your name, most rape accusations don't go to trial anyway, there has to be a big financial thing happening in between the time of the newspaper article and the time of the not-guilty verdict, etc), which doesn't make it irrelevant but means it should have less influence over how we design policy than the median case, and 2. I would hope a judge in that case wouldn't issue a blanket gag order, it seems like you could say a lot to protect your reputation without crossing the line on a conservative gag order, and as OP states gag orders are really quite rare anyway, and 3. yeah, there may have to be some trade-offs between corner-cases like this and making the system work in the median case.
That said, yeah, I take your point that sometimes you want to defend yourself in the court of public opinion at the same time you are defending yourself in actual court, and this creates a genuine conflict of interests between protecting the court proceedings and protecting normal speech-based liberty.
I think my intuition on this mostly falls on the side of 'being a defendant in a trial sucks in a lot of ways, especially if they're keeping you in jail during the trial or crippling your family with charges related to getting out on bond, so this isn't an extraordinary new type of burden compared to all the other ones. I'm open to the idea that we should reform the system to make it less damaging to defendants who have not been convicted yet, but if we are deciding to care about that then these super-rich and powerful guys worrying about their reputations are way down on my list under a lot of other defendants who need the help more urgently.'
I am not against reforming the system and limiting punishment by process. Things like releasing mugshots do damage people so I would have no problem with limiting releases if a process isn’t followed. Maybe you need a grand jury to review the evidence and declare something like the accused crime represents a significant threat to society before trial.
In the case of Trump it does seem reasonable that the process itself could harm his election chances, even moreso if he wasn’t Trump who doesn’t mind breaking norms and speaking out. He has a rational argument that the process harms his ability to run for office so I believe he meets your standard.
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Well, I guess that just means judges control who can run for public office. All you need is a blizzard of bad-faith lawfare and judges willing to go along with it to "fortify" up some elections. Texas better get Biden under indictment fast and start issuing some gag orders of their own.
Oh no, I'm all for it. The sooner the courts can get as deeply involved in politics as the intelligence agencies are, the sooner we can dispense with the stupid notions that we're a "democracy", or a "nation of laws". Inevitably, the law will be whatever Harvard Law says it is. Until it isn't, and then it will be what whoever has the biggest gun says it is.
I don't understand this worldview. Are you implying that we have somehow fallen from grace compared to our hallowed past? The law has always been whatever [insert powerful institution] says it is, and that's always been overridden by whoever has the biggest gun. Genuinely, when has this never been the case in human history? If you want to argue that it has gotten worse, then I'm very curious to hear your evidence.
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I’m not a fan of democracy, but if we can distinguish the autonomous political system from representation generally; it’s still worrisome to imagine what our political future would look like once we break past that illusion.
“Fascism” or even “authoritarianism” have never been a pejorative to me, but I still worry about casual uses of the concept. As palatable as I am to the latter, a move to it away from the former doesn’t mean that therefore society becomes ruled under “Tretiak,” or anyone else.
If you ask me, once we realize that, we have two options:
1: A reversion to federalism. We withdraw from foreign affairs slowly, push policy back down to the state and local level, become balkanized. States restrict travel and trade between themselves. Mutually warring courts try to get leverage on the other as they all lose complete control of the legal system. We lose our position as sole superpower, we are no longer the world reserve currency, standards of living drop to come in line with Europe more broadly and our national politics grinds into a multi-century quagmire.
2: Rome 2, Electric Boogaloo.
I’m not at all convinced this is a realistic solution, for a number of reasons.
When you think about how much has changed in the world over the course of the last 100 years, I think the conclusion is fairly easily established that most of the problems waiting out there for us are global in nature, and can’t be addressed on a local or fully individualized basis.
The whole neoliberal obsession with “small efficient government” for instance, is a complete nonstarter. “Small efficient government” works when you face “small efficient” challenges. When you face something ‘systemic’, you need the strong and long reach of the arm of government to be able implement solutions that are 1) unprofitable to do, 2) can’t rely on community consensus to generate the will and 3) need nation state backing - all of which are unworkable on a local level.
As for the US losing superpower status, that’ll happen eventually. As it has with every nation that’s come before us. Whatever that catalyzing moment will be, nobody knows. But that doesn’t mean other nations won’t be stepping in to try and fill that void as best as they can. Any ground lost is ultimately ground ceded to an aspiring rival power.
To be clear, I think option 2, which is essentially what you outline here, is far more likely.
I do not think it is preferable, but it is the way of the world as I understand it.
Yes, most major issues are global, so there is pressure for a global solution. And the US is the only country who can swing it, currently. Our system is not so different from Republican Rome. We allow our "allies" their own sovereignty, so long as they provide troops and political cover. In time, they may drift closer and demand greater rights within our world order. In a couple centuries, everything we call NATO right now could be US states. As power flows into Washington, who controls it becomes increasingly fraught. Too important to be left to voters, who will be still voting, of course. Factions will form, compete. The mob in DC will be a significant player in world politics. The military will become political, and this will lead at some point to a coup. There may be several before someone makes monarchy stick under some appropriately humble title. By that time, political opposition will be primarily internal.
This is all wild speculation of course.
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Which issues does the US currently face that require a government to have the level of power that the US currently wields that could not be better solved by simply allowing people to act freely?
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Maybe we're getting a little far off topic here, but this is touching on one of my bigger general concerns. Many of our problems do seem pretty big. To be specific, I'm talking about things like how much control near-monopoly tech companies and national mega-corps are coming to have over our lives, specifically retail and news and entertainment media, how much influence a united and stable Russia, China, etc are able to wield over world affairs, etc. I'm not so sure that a United States with the Federal gov effectively throttled and the many State governments ascendant would be better able to deal with these issues.
The issue is that the unthrottled FedGov we have now is the thing that is working with near monopoly tech companies to extend even more control of our lives, and by "our" I mean anyone on Earth. A united and stable Russia, China, etc. might be enough to provide counter balance, but I'm not convinced.
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Did you ever clerk? Going after a judge's clerk is what provoked this more than anything else. Clerk is an anonymous job, judges treat them like their children or their pets but no one outside the courthouse is or should ever be aware of anything they do. Any judge is going to go incandescent with rage at that point. Attacking a kid just out of law school who has zero impact on the proceedings directionally, is just so downright evil and unnecessary that he's going to get slapped down for it.
I never clerked but yes I totally agree, I said Trump's post about the clerk was totally inane. Judge Engoron's gag order was remarkably restrained.
I recognize that I'm not Trump's target audience for these types of antics but for me it just emphasizes how much he's flailing in that case. He can't plausibly claim that his 10,000 square foot apartment is actually 3 times that, so he just lashes out at random nobodies. Presumably he's trying to paint a vast conspiracy levied against him but I don't understand how anyone can be convinced of that with the photo he posted.
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I clerked for a federal judge and I agree with your assessment, but it doesn't change the fact that a broad gag order has constitutional problems.
Sure, but going after your judge's clerk is just one of those things. Kill a cop, the cops will be out for you like nothing else. Imprison a journalist, journalists will make it a cause celebre like nothing else. Go after a judge's clerk, the whole courthouse is going to come down on you.
Hard facts make bad law. Whatever constitutional deficiencies exist in the gag order, it's not 'lawfare' or the judge having it out for Trump for political reasons. It's crossing a red line that was super duper easy not to cross, that will make almost any judge make it personal. You're better off talking shit on the judge himself than talking shit on his clerk, in most cases.
I again completely agree with you. Trump's decision to go after a clerk was profoundly stupid and improper. Still, the gag order seems constitutionally overbroad and it would have been wise for the judge to exercise more restraint, given that this is a high-profile case and the gag order involves a fundamental constitutional right. I expect federal judges to exercise more judgment than cops or journalists in responding to these kinds of provocations, even if the provocation is clearly way over the line.
To clarify, the clerk talked about here is for Judge Engoron in the New York civil fraud case. His gag order was issued orally and only restricts "personal attacks on my members of my court staff", it doesn't even prevent Trump from shit-talking the judge. Do you think this order is constitutionally overbroad?
I haven't read the full transcript of the order so perhaps I have an incorrect impression of it, but I think it is overbroad, yes. According to the article you linked "Justice Engoron said that his statement should be considered a gag order forbidding any posts, emails or public remarks about members of his staff." Being able to speak out against government officials in a proceeding is an absolutely core aspect of what the 1st amendment protects. The right to say things like "the judge's law clerk is politically motivated and out to get me" should be inviolable, even though in this case it's an incredibly stupid thing to say. If the gag order was narrowly tailored to allow protected speech, e.g., Trump can criticize the law clerk but can't call on his followers to harass the clerk, I would feel differently.
You've changed my mind, I agree with your point.
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