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I saw the following exchange between Megyn Kelly and Tucker Carlson, and it made me angry. So instead of getting over it and going and doing normal things like a well adjusted adult, I decided to complain about it on the internet.
First of all, I'm at least glad to see that reality is starting to set in. Trump is going to get his nonsense "absolute immunity" claim promptly rejected 9-0 by the Supreme Court. He's going to go on trial on March 4, he's going to get convicted, and he's going to go to prison. This has all been obvious for some time, and people do need to come to grips with it instead of telling themselves "it can't happen, so it won't".
But there is a stark mismatch here between the acceptance on one hand that the jury will convict Trump but the insistence on the other hand that "the charges aren't real". DC is an overwhelmingly democratic voting jurisdiction, but you would need to be cynical indeed to think there is no chance that even one Democrat juror would refuse to imprison a political opponent on obviously baseless charges. But of course, the charges are not nearly so baseless as Carlson suggests.
No, the reason that Kelly and Carlson know that Trump is going down is not because they think there is not one honest soul to be found in DC. They can have confidence Trump will lose this case because both his conduct and the law have little mystery about them. On the facts, there's little if any dispute about the actions that Trump took. On the law we have seen similar charges applied to many January 6 defendants, and it has not gone well for them. If Trump is to get similar treatment for similar conduct, he must be convicted.
Carlson and Kelly know that he's guilty and yet they pretend otherwise. Carlson rants about how outrageous it is to render people's votes meaningless, and yet when Trump is charged for conspiring to do exactly that he flatly states it's "not even a real crime". I emphasize that his contention here isn't even that Trump didn't do the awful thing he's accused of - he's saying that the things he's accused of aren't awful. This lays bare how empty and fake Carlson's feigned defence of democracy is. You can believe that it's outrageous to deprive people of their democratic rights or you can believe that conspiring to deprive people of their democratic rights isn't a "real crime", but it's incoherent to claim both.
But worst of all is the "warning" of violence. Carlson tells us that the man who incited a riot must not be punished or else we'll get more riots. This is the logic of terrorism. Give us what we want or there will be blood. Sure, he phrases it as a prediction rather than a threat and says he detests violence... but he knows full well that many of the people who might actually commit it could well be listening to him, and he knows he is fanning the flames of their resentment and putting the thought of violence in their heads. This would be irresponsible even if Carlson were sincere, but the fact that he's obviously being cynical makes it worse. This is a man who passionately hates Trump and couldn't wait for him to get kicked out of the White House - and yet here he is inventing excuses for him, pre-emptively trying to discredit the verdict he knows is coming, sanewashing Trump's "rigged election" claims, stoking anger, and telling people that violence is the inevitable response if Trump gets locked up. All, one presumes, so he can maintain his position in the GOP media ecosystem. What a worm.
Smith and Chuktan will obviously not allow themselves to be swayed by threats of violence, so we will unfortunately get to see if the dark talk turns into action. I for one hope Trump's most volatile supporters will at least recognize the truth that Carlson acknowledges - it will go extremely badly for anyone who takes it upon themselves to shed blood.
Trump did not incite a riot in any way, shape, or form. There is simply no reasonable line you can draw between Trump's statements (which, among other things, were not made at the site of the riot) and the riot. Not by the Brandenburg standard, and not by any standard which has been applied to any politician since Brandenburg.
I realize you're not American and may not be familiar with American freedom of speech traditions and jurisprudence, but there simply isn't a serious question here, and anyone who IS familiar with such traditions and jurisprudence knows it. You simply cannot take take the fact of a riot, and anodyne political statements made as part of a political demonstration ("I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."), and infer from the latter an attempt to incite the former. Nor can you do things like "Trump claimed the election was stolen; if the election was stolen violence would be justified; therefore Trump called for violence". That's just not valid. The test is that the speech must be intended to cause imminent lawless action, and it must be likely to cause it. Ex ante likely, that is, though that doesn't much matter because it fails the "intent" test. Telling a group to march to the Capital to make their voices heard is unquestionably protected speech of the sort even Robert Bork would accept.
So you are probably right that Trump will not get his immunity. And given a DC jury, chances are pretty good that he'd be convicted; contrary your claims, I think a D.C. jury would convict Trump of anything up to and including murder without evidence of a victim. And he may indeed go to prison. And if that causes widespread violence, everyone involved in his imprisonment absolutely deserves it. I doubt it will, though; the part of Trump's base capable of widespread violence is wholly infiltrated by the FBI and/or cowed by the Jan 6 response, and the rest is all bark and no bite.
The line from Trump's speech to the riot is that Trump's speech is a but-for cause of the riot. If Trump doesn't assemble the mob and tell them to go to the Capitol, they don't go to the Capitol. No mob, no riot.
The questions "Did Donald Trump incite a riot?" and "Can Donald Trump be criminally prosecuted for inciting a riot, given the 1st amendment?" are not the same question - "incite" has an ordinary English meaning, and on the ordinary English meaning of "incite", Trump so did. The 1st amendment is, for the obvious good reasons, over-protective of political speech - it isn't surprising that it is possible to incite a riot while (just) staying within the boundary of protected speech. Trump shouldn't be prosecuted for inciting a riot, and he isn't being prosecuted for inciting a riot (both the Federal and Georgia indictments focus on his various attempts to overturn the election before Jan 6th). That doesn't mean he didn't incite a riot.
Growing up in the UK, our pro-free speech tradition has tended to rely on John Stuart Mill's On Liberty for the moral (not legal) limits of free speech in contexts that look like incitement.
Trump assembled an excited mob at the Ellipse, told them that the politicians in the Capitol were stealing an election, and then told them to go to the Capitol and "fight". On the John Stuart Mill test, he has (just) exceeded the bounds of protected free speech. Under the Brandenberg test, he (just) stayed inside it. On this point, the law is on Donald Trump's side, so I am going to pound the facts. Donald Trump did, in fact, incite a riot on January 6th.
There's direct video evidence of one of the people who enabled entrance into the Capitol talking about how they're going to have to go and break into the Capitol building the night before the actual riot. This same person actually skipped Trump's speech so they could help get people into the Capitol and start a riot - so you're just flat out wrong here. How can Trump's speech incite a riot when at least one of the people involved in that riot spoke loudly about their plans the night previously, and then missed the speech entirely so they could facilitate people getting into the Capitol building? This breaks the "but-for" already - if Trump just said "Welp, looks like I lost, everyone can go home" there's at least one rioter who would have already been in the process of breaking in!
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Can you have it both ways, that people were convicted of planning the root and also Trump spontaneously incited it among people who otherwise would not have rioted?
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Has there ever been an example of a professional sports organization being held liable for the riot after a team won or lost a game, and the fans damaged parts of the city?
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I have a different opinion on “he incited a riot”. I view the riot as justified. I loved Jan 6. The 2020 election was illegitimate in my opinion. Far too many Democratic norms were violated. I also think elites deserved a riot on their land as they spent 2020 inciting riots across the US. The anger that caused the riot on Jan 6 was caused by the left not Trump.
By the standard you are using for Trump isn’t Kamala guilty for Jan 6? She was a primary leader of all the justified grievances that blew up on Jan 6. Sure Trump gathered people there on Jan 6 and led a protest but all the anger that really incited the riot I believe came from Kamela’s words and actions.
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Hosting a protest is protected political activity.
Trump should not have held this rally. He is in fact an idiot who should not have done half the things he did. But he should not be criminally liable for hosting this rally.
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Sit down. You lot are literally siccing police on people for saying men aren't women on Twitter.
You can take issue with current UK free speech norms without being antagonistic and personal because someone happens to be disagreeing with you.
(@the_nybbler's post, for example, was fine.)
Oh dear, looks like I'll be the one taking a seat. Sorry, I guess I was trying too hard to be funny.
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Even if (arguendo) I accept that as true, it does not matter. It is not sufficient for President's Trump's speech to have caused a lawful action that was a necessary precursor to the riot. His speech must have been directed towards causing the riot.
And that's true in the sense of ordinary meaning as well as the law.
In the UK, your pro-free speech tradition ranges from absent to extinct, and that is itself a cause of the United States's pro-free speech tradition.
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Boy it sure would be embarrassing if there was very recent and highly publicised American jurisprudence on this very topic that you were unaware of when you wrote that.
The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place. 294. When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification until roughly three hours had passed, at which point he called for dispersal, but not without praising the mob and again endorsing the use of political violence. The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established. 94 295. Regarding the second Brandenburg factor, the Court finds that the language Trump used throughout January 6, 2021 was likely to incite imminent violence. The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being “stolen,” and that something needed to be done. 296. Knowing of the potential for violence, and having actively primed the anger of his extremist supporters, Trump called for strength and action on January 6, 2021, posturing the rightful certification of President Biden’s electoral victory as “the most corrupt election in the history, maybe of the world” and as a “matter of national security,” telling his supporters that they were allowed to go by “very different rules” and that if they didn’t “fight like hell, [they’re] not going to have a country anymore.” Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder. The Court, therefore, finds that the second Brandenburg factor has been met. 297. Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and leaders using similarly strong, martial language, such as calling on supporters to “fight” and “fight like hell.” The Court acknowledges the prevalence of 95 martial language in the political arena; indeed, the word “campaign” itself has a military history. See, e.g., Claiborne Hardware Co., 458 U.S. at 928 (“Strong an effective extemporaneous rhetoric cannot be nicely channeled into purely dulcet phrases.”). This argument, however, ignores both the significant history of Trump’s relationship with political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on, January 6, 2021. It further disregards the distinct atmosphere of threats and calls for violence existing around the 2020 election and its legitimacy. When interpreting Trump’s language, the Court must consider not only the content of his speech, but the form and context as well. See Id. at 929 (noting that, if there had been “other evidence” of Evers’ “authorization of wrongful conduct,” the references to “discipline” in his speeches could be used to corroborate that evidence). 298. Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.
But what would I know, I'm from another country.
The state district court is plainly full of shit, and is itself going up against all that First Amendment jurisprudence I have mentioned. She either has serious Trump Derangement Syndrome, or is deliberately making a wrong decision to harm her political opponents. It is erroneous to consider "the history of Trump's relationship with political violence and the noted escalation in Trump's rhetoric", even if it would actually be damning to do so (it is not); to see that, we only need look at Brandenburg, which concerned a literal Ku Klux Klan leader (Evers). The Court's use of the dicta regarding Evers is in fact backwards; IF there had been evidence of Evers' wrongful conduct, his use of the word "discipline" could corrobate it. Here the Court attempts to make the "context" of Trump's language not corroboration, but the key piece of evidence. That is not supported even by that dicta.
Also, of course, that's Trump's case itself. If you want to assert that what is being done to Trump is fair, it is not convincing to cite decisions made in this case; you need to cite precedent.
I’m not convinced by the court’s reasoning.
First of all, I don’t think it’s well established that anyone at the rally expected a riot. They expected a protest certainly, but I’m not sure they expected the full force of the crowd trying to breech the Capitol. Exhibit A in my view is that speakers at the event — Josh Hawley and Ted Cruz specifically— spoke at the event and then went to the Capitol to debate certification. If there were reason to suspect a riot, then why would they want to be anywhere near the Capitol when the crowds arrived? If republicans literally believed that the 1/6 rally was going to be a coup attempt, why were they so open about funding people going? If the orders to use political violence were so clear, why is it that after they managed to get into the Capitol, they weren’t doing violence or even real property damage. In fact I’ve seen more property damage done in videos of people in restaurants being charged extra for dipping sauce than happened in the Capitol.
I think there were some elements influenced by Q who wanted to overthrow the election. But the presence of a tiny minority of people who choose to riot doesn’t mean much when it comes to whether or not the leaders and speakers intended a riot.
Of course not. Up until then, conventional wisdom was that the left riots, not the right, particularly not the mainstream right (which the crowd mostly was -- aside from some of the actual rioters, some of whom weren't even on the right!). There'd been violence at Trump rallies, but all of the form "Lefties attempt to disrupt rally, Trumpists treat them roughly". Even Charlottesville required the powers that be literally cause the violence by first canceling the legal assembly, then forcing one group through the counterprotestors.
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Alternatively, if a riot after a politician speaks on a topic is strong evidence of incitement to riot, there are a lot of BLM riot-promoters that should be rotting in prison for an extended stretch. I wouldn't necessarily have any problem with that, I do think many of these speakers encouraged riots and caused billions of dollars in damage across the country, costing dozens of people their lives directly, and many, many more through riot-enforced depolicing policies. The promotion of BLM was a "threat to our democracy". If nothing that any politician egging on rioters did in 2020 qualifies as causing a riot, then Trump certainly does not qualify either.
Well, sure, if they’re guilty of promoting a riot, then they’re guilty of that. But they’d have to be actively trying to convince people to riot, which at least for the actual Elipse speech (which would be the most relevant here) I just don’t see anything that someone reading the speech cold (with no knowledge of what happened afterwards) would see Trump giving marching orders to have people break into the capitol. In fact, if there’s no break-in nobody would have thought much about it. The reasoning thusly seems to be working backwards— there was a riot, and pretty soon after Trump gave a speech; therefore Trump incited the riots.
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I guess that means you're expecting a reversal on appeal then?
No, it's not appealable because the decision was for Trump. It's just dicta, to be cited by other anti-Trump courts so they can pretend that what they're doing isn't unprecedented.
Trump appealed it though.
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that's the cheekiness of the opinion. how or why would trump appeal a decision that went in his favour even if the opinion derided him? the original petitions have filed an appeal but i'm not sure if the higher court will just address whether the 14th amendment applies to Trump or whether he engaged in insurrection or not. presumably, if the higher court did find the 14th amendment applied it would eventually have to also make a finding on the free speech issue if Trump pushed it but i'm not sure if this would be done at the same time or not.
Baude's original law review article advocating disqualifying Trump points out the 14th amendment is also part of the Constitution, so the 1st amendment doesn't automatically apply the way it would to a normal criminal law. Under the normal rules for resolving conflicts between two laws of equal authority, the 14th overrules the 1st, both as the more specific provision and as the after-enacted provision.
So it is entirely possible that Trump is disqualified for inciting an insurrection, but is still protected by the 1st amendment from criminal prosecution for inciting a riot.
I’m sorry but this is just absolute horse shit.
First, it is true that generally speaking later in time or the specific controls BUT great pains are taken to read the rules as not conflicting where possible.
Second, constitutional law is a different matter from statutory law. The constitution is small. The USC is massive. It is likely that in the latter there will be truly irreconcilable differences. But the idea that in a relatively small legal document the latter in time drafters would silently abrogate literally the seminal amendment in American constitutional history is laughable.
So no, we need to read the 1st and the 14th in unison; not to create conflict. That is, if speech isn’t strong to be criminal it sure isn’t an insurrection (especially since the latter is graver compared to most speech crimes).
Baude beclowned himself. Funny enough he is also losing on the officer argument. Baude is now a laughing stock.
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There is nothing in the Fourteenth Amendment that repeals or overrules the First Amendment. It's not in conflict with it; as Trump's lawyers point out, the provisions may be easily reconciled with the ruling that IF something is protected speech under the First Amendment, it does not constitute "insurrection or rebellion" nor "aid or comfort to the enemies [of the US]". Since that provision is not attempting to expand the definition of those things but rather to provide a disqualification as a result of them, this is the natural way to read it. That the Fourteenth Amendment is implicitly limiting the First is an extreme reach.
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He did appeal it though. The Colorado Supreme Court had oral arguments on it like 9 days ago.
sorry, i edited my post so you replied to the pre-edited version so it looks a bit odd. i think the original petitioners made the appeal but i'm not sure if they are addressing just the 14th amendment issue or the 1st amendment issue as well. i've seen in some media reports that trump wants to challenge the 1st amendment issue.
Trump brings up 11 possible issues in his petition for review. Included was the First Amendment Issue
Later, in his opening brief:
It's a crapshoot whether the Colorado Supreme Court rules for or against Trump on this issue, because it's a charged political question and an all-Democratic court. But it should be a 7-2 bitchslap (Sotomayor and Jackson in dissent) from SCOTUS at worst. If SCOTUS goes against Trump on this, the First Amendment is dead.
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Trump didn't appeal it; the petitioners did. Trump did file a petition asking that if the decision is reviewed, the parts you referred to are reviewed also. "President Trump seeks review to ensure that if this Court takes up this case on appeal, it will consider the full scope of the constitutional, interpretive, and evidentiary issues." It is of course not clear whether they will do so.
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that's a very cheeky opinion by the court. they find that the 14th amendment doesn't apply to Trump so there is no finding against Trump but then include a bunch of disparaging stuff about him that will never been challenged on an appeal. but this courts opinion on Brandenburg would not be held up by higher courts. they even include a case where the plain language used by the accused was much worse than Trump and the the accused was not convicted but then magically read further than the plain language of Trump to find that he did commit insurrection.
My understanding is that the bar to overturn the factual findings of a trial court is pretty high. I believe it has to be demonstrated that no reasonable judge could have come to that conclusion.
I agree the opinion is cheeky - the part ruling that section 3 doesn't apply to the presidency feels like she's begging to be overturned on appeal (and because it's a matter of law rather than a finding of fact it can be overruled more easily).
That isn’t a factual finding; it is a legal conclusion and that is reviewed de novo. The “problem” is the circuit or scotus probably don’t need to address that interim conclusion to decide the issue.
So basically people who want to claim “Trump is an insurrectionist” can point to this case “that even the Republican SCoTUS” didn’t dispute while ignoring that disputing it isn’t relevant.
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District court judge making a grand political conclusion antithetical to the law isn’t exactly uncommon. See for example the Republican judge in Texas and the abortion in the mail ruling.
It is and remains a joke of an opinion.
The decision is being appealed. Do you predict that the Colorado Supreme Court will find that Trump did not incite an insurrection?
Depends a bit on the make up of panel (a lot of Biden and Obama judges on the tenth — I generally have little respect for Biden and Obama judges though there are exceptions such as Kagan). If it goes to SCOTUS I expect a strong bitch slap.
Would add this might stand on the premise that what you quoted is effectively dicta
Cool. My not-super-confident expectation is that the factual finding of insurrection will not be overturned at any point, though anything could happen in regards to the legal questions around applicability to the presidency. We'll see!
Do you think the issue will be settled as a matter of law? That is, it would be easy to agree with the holding without addressing the issue.
I think that the judicial approach to the issue so far would suggest that the courts will not disqualify Trump but will also avoid saying he did nothing wrong. Judges seem to realize it would cause a massive drama and they aren't game to put themselves at the centre of it. E.g. if you read the part of the Colorado ruling that says the 14th amendment doesn't apply to the Presidency, the judge seems eager to emphasize the weaknesses in her own decision and explicitly says that it is partly based on not wanting to take such a drastic action.
I will be interested to see what happens if and when the issue is addressed by a GOP-aligned judge though. That might give a better indication of where SCOTUS is likely to land on the issue, and we all know it's ending up there.
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