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Speculation about the Pending Trials of the Ex-President is Protected Speech
So is the Disinformation being spread via multiple media entities
Wading through the hundred plus pages of the Fulton County indictment is going to be done by dozens. The vast majority of the general public is not likely to take the time to read it, though we all should. Many of us have read much longer crime novels or mysteries that are harder to decipher and this one’s much easier to grasp.
For a very simple explanation of the specific activities where law violations occurred and who was involved in each, this analysis by the Lawfare Institute is a great starting point, providing more context that directs attention to the alleged crimes that occurred. It’s important that the general public understands the basics it defines. Without that understanding many could easily fall prey to the spreaders of disinformation that is certain to come from the defendants, their attorneys and media outlets known to be biased in favor of the GOP.
Or more accurately, the misinformation that is already being spread.
Defining the motives and likely tactics of the indicted, their legal reps and supportive media outlets is also important. Here’s what to expect.
FREE SPEECH & THE INSURRECTION
All the parties involved are entitled to free speech protections under the First Amendment. Team Trump is already claiming that everything he said from Election Day 2020 through the January 6 2021 insurrection effort is fully protected speech that he can’t be prosecuted for. There is, however, a need for judicial interpretation about whether all of the speech of the defendants is so protected or whether some goes beyond the limits of that protection.
An oft-quoted standard really isn’t in force. We can shout ‘fire’ in a crowded theater. And there are instances when the government’s protection of the populace supersedes the right of the individual. This is a good clarification of these points.
Any judge who’ll review the claim of protected speech will likely have to determine whether a defendant was trying to provoke, incite or recommend the breaking of the law. If laws were broken because of words spoken or written, the judge then has to make a determination of whether that outcome was the intent of the speaker.
That shouldn’t be difficult to do with most of the defendants.
Special prosecutor Jack Smith, who brought two sets of federal charges against Trump, already won a battle to gain access to Trump’s tweets and direct messages to everyone from November through part of January. Those contents are likely to demonstrate intent and perhaps whether he knew the election wasn’t ‘stolen’.
Some of the other defendants also had their phones seized for similar reasons. They may shed light on their motives and actions too. Whatever the presiding judge determines about their protected speech is likely to be appealed by prosecutors or defense attorneys. But because the different prosecutors have gained access to communications between defendants or directed at officials encouraging them to take illegal actions, it’s reasonable to speculate that they’ve gained enough info to make intentions and actions clear (that they encouraged others to take illegal actions).
It also seems evident to me that Trump continues his efforts to win in the court of public opinion, no matter what occurs in the actual binding court rulings. That is a political decision usually protected, unless his intent is to promote another uprising against the government’s legitimacy.
There was a point on January 6 where Trump did say ‘go in peace’ which wiill likely be a key part of his defense in the federal trial about that. Again, though, that defense may be undone by his phone transcripts.
INFLUENCING (AND INTIMIDATING) WITNESSES
Those who slandered, influenced and intimidating poll workers Ruby Bridges and her daughter are going to find it most difficult to raise a successful defense. I’d also expect to see a civil action brought in this case by the two workers.
CREATING FAKE ELECTORS
It’s likely that Smith has obtained enough evidence that Trump and his attorneys knew the fake electors were illegal, so the fake elector actions (pretending to be legit public officials, providing fake election certification documents, forgery, etc) demonstrates that illegal actions did occur at the behest of Trump and/or his attorney(s).
I’d anticipate numerous creative ways the attorneys being charged will try to deny culpability. If Trump direct messaged them, they’ll try to get that evidence suppressed under attorney-client privilege laws. But those protections are also limited, so we’ll have to wait on the judicial rulings for each of them.
But this and the witness intimidation are the crux of the case, where the public is most likely to be swayed. Most have already made up their minds about what occurred on January 6th and are unlikely to be moved on that basis unless these obviously fraudulent or threatening actions are proven in court. If the district attorney can demonstrate that the participants knowingly encouraged illegal actions after being fully aware Trump lost, that’s likely to snowball over into the other actions taken or encouraged.
COFFEE COUNTY ELECTION DATA TAMPERING
I expect this will be a slamdunk for the DA. It’s quite clear who did what and all of it was clearly illegal to do. Perhaps some of these charges will be dropped as part of a plea deal. Any attorney or politician who encouraged the principals to access the data should also find it difficult to defend.
One of the biggest surprises is that DA Willis is trying to try all 19 simultaneously. Most of the defendants will resist that and some will try to move the litigation to a federal court.
It will save time for Willis to try them all together. It poses some logistical court access problems: with all 19 defendants, at least 19 defense attorneys, witnesses and the press, as it might keep members of the general public from attending. On the other hand, it’ll force more cooperation between attorneys and defendants so one doesn’t undermine the defenses of others. Any slip-up can be exploited by DA Willis if anyone says the wrong thing.
I also think it wise for Willis to try them on the heels of Jack Smith’s prosecutions as he possesses more info from the phones seized. She can utilize that info in her trials. But it’s not clear as yet who will go first.
In addition to efforts to get the judge replaced, to moving the trial to a federal court, to splitting off from the multi-defendant trial, to offering the free speech and privileged communications defenses, I can’t, as yet, predict the strategies defense attorneys may use if all those initial efforts fail. Other than likely multiple appeals of the initial judge’s rulings.
WERE INDICTMENTS BEGUN NOW TO INTERFERE WITH TRUMP’S RE-ELECTION EFFORT?
That’s more of the public misinformation plan to win in the court of public opinion as none have any evidence to support that.
Congressional subpoenas carry more weight and fewer ways to resist testifying, so the work of its January 6 Committee had to go first. That was completed by Christmas 2022. The DOJ, beginning in January 2023, could then build on that initial evidence, rather than duplicating research already performed.
In anticipation of that AG Merrick Garland appointed Jack Smith as special counsel after the 2022 election was complete. It’s longstanding practice for the DOJ to not make moves affecting political actors during Fall campaigns.
Also, in 2021 and 2022, the DOJ was incredibly busy tracking down more than 1,200 people present at the insurrection and getting a lot of them prosecuted. It’s likely been the busiest Justice Department period in 50 years, if not the busiest ever.
So Smith took less than 8 months to bring all his charges against Trump to his indictments which is pretty speedy. Fani Willis likely could have indicted sooner but considering the gravity and historical weight of that, she waited to see what Smith uncovered out of an abundance of caution.
So claiming that these pretty standard practices were motivated to block Trump’s re-election is just another PR ploy. In fact, Smith wants his trials completed before Super Tuesday so ongoing trial events have minimal impact on primary season.
THE PUBLIC RESPONSE
I’ve already seen numerous interviews of Republican voters. Some seem completely deluded. Some disapprove of what Trump has donee but say if he’s the nominee they’ll reluctantly vote for him, so party loyalty outweighs his criminality. Very few plan to vote for anyone else.
But it’s the Independent voters we all should be watching. Where those swing voters go usually causes the electoral outcomes.
Barring prosecution errors, I think Smith’s prosecution of the documents cases will be easy and fast. That will cause an erosion of Trump support that can’t be won back unless he’s exonerated in the Insurrection trial or the Fulton County trial.
The 2024 presidential election depends on the health of the 2 major party candidates, the state of the economy in 13 months, plus how Independent support moves after the prosecutions are completed.The first two things could outweigh these trial results but Trump has to play the victim of a mass conspiracy to maintain his support and fundraising.
History professor Heather Cox Richardson notes: “It appears the Trump Republicans have fully embraced what Russian political theorists called “political technology”: the construction of a virtual political reality through modern media.”
She predicts Trump’s ‘irrefutable report’ denying all charges planned for Monday won’t draw as much attention as he drew before as his credibility has been seriously dented by his criming. Her full review is worth your time.
Before the Georgia indictments this is what an AP-NORC poll found:
”But in a crucial warning sign for the former president and his supporters, Trump faces glaring vulnerabilities heading into a general election, with many Americans strongly dug in against him. While most Republicans — 74% — say they would support him in November 2024, 53% of Americans say they would definitely not support him if he is the nominee. Another 11% say they would probably not support him in November 2024.”