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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.
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 guess that means you're expecting a reversal on appeal then?
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.
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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