Third Arrest for Trump

[George K]

National Review, no fan of Trump says that the indictment should not stand:

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The indictment of former president Donald Trump by Biden Justice Department special counsel Jack Smith on four felony charges arising out of his efforts to undo President Biden’s victory in the 2020 election is momentous — not just in its potential impact on our politics, but in what it could mean for the rule of law.

We have on many occasions condemned Trump’s appalling actions in the aftermath of the 2020 election. They were impeachable. He came close to being convicted in a Senate impeachment trial; with 57 senators finding him guilty, he was saved only by the Constitution’s two-thirds supermajority mandate for conviction and disqualification.

Now, through a special counsel it appointed for this precise purpose, the Biden Justice Department is attempting to use the criminal process as a do-over for a failed impeachment. In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal.

In our constitutional system, Congress is trusted with the duty to check egregious executive misconduct. Its failure to convict Trump understandably galls many of his opponents — left, right, and center. This feeling is accentuated by their sense both that Trump is unfit for the presidency and that there is a very real possibility that he could be elected president again.

Hence the pressure on the Justice Department to hold Trump accountable in a way the political system did not. But criminal prosecution is an inapt substitute for the congressionally driven political process that the Constitution set up to address gross abuses of power.

Public office is a privilege, not a right. That is why a president may be ousted, without all the protections of criminal due process, for violating the public trust. In contrast, criminal prosecution is designed to address private wrongs, not derelictions of public duty. It endows the accused with enhanced protections because at stake are rights — liberty, property — not the privilege of political power.

Whether misconduct rises to the level of an impeachable offense is indefinite, left to the people’s representatives to assess based on what the facts and circumstances say about a public official’s fitness for duty. Criminal offenses are the antithesis of that. They must be defined by statute with sufficient clarity so that the average person knows what is forbidden, and a defendant is presumed innocent. A guilty verdict must be supported by proof beyond a reasonable doubt — proof not only that the person performed the statutorily prohibited acts, but also did so knowing that his conduct was illegal.

Here, it is not even clear that Smith has alleged anything that the law forbids. The indictment relates in detail Trump’s deceptions, but that doesn’t mean they constitute criminal fraud. As the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property. Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged. Indeed, assuming a prosecutor could prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him (good luck with that), hyperbole and even worse are protected political speech.

As for obstruction, Americans, presidents included, have a right to attempt to influence Congress, even based on dubious or imagined evidence. To establish obstruction, Smith must prove that Trump’s efforts at persuasion were corrupt — again, in the sense that he knew his badgering and lobbying had no factual or legal merit. The concept of corruption is meant to reach clearly criminal conduct, such as evidence manipulation or witness tampering. It has never been understood to reach wrong-headed legal theories. To apply it that way, as Smith proposes, would chill not only political speech, but the constitutional right of a defendant to mount a legal defense.

Finally, Smith is charging Trump with a civil-rights violation, on the theory that he sought to counteract the votes of Americans in contested states and based on a post–Civil War statute designed to punish violent intimidation and forcible attacks against blacks attempting to exercise their right to vote. What Trump did, though reprehensible, bears no relation to what the statute covers.

In his press conference announcing the charges, Smith — for good reason — did not dwell on his questionable charges. He instead emphasized the Capitol riot. Anyone witnessing his remarks would have believed that Trump had incited a forcible attack on the Capitol. Of course, Smith has not charged him with any such thing because he doesn’t have the evidence to tie him criminally to the riot. The prosecutor was making a political statement, clearly aimed at swaying the jury pool in blue Washington, D.C., where the Justice Department brags daily about having charged more than a thousand rioters.

There is a reason Smith does not have a solid statutory crime to rely on. To criminalize the conduct for which he seeks to convict Trump, Congress would have to write sweeping laws that could easily be wielded by one party against another to punish objectionable political conduct. That would undermine both electoral politics and the rule of law.

This indictment shouldn’t stand.

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Emphasis mine.

[Horace]

It’s just pure poetry that Jan 6 is the “legal” justification for indictment for crimes not having directly to do with Jan 6.

The complexion of TDS would be drastically different if Capitol security had been better. There isn’t a single TDS sufferer in the world who would have wanted better Capitol security that day. The Jan 6 card allows for anything, including destruction of legal norms, as we see. Obviously this will all come back the other way, in tribal warfare.

[Jolly]

Oh, I think there is a better than even chance Pelosi got exactly what she wanted Jan 6th. No heads up to the Capitol Police, no National Gurad...Why, it's like The Speaker may not have wanted any security...

[Copper]

@Horace said in Third Arrest?:

The Jan 6 card allows for anything, including destruction of legal norms, as we see.

That's why the FBI hired the insurrectionists. Legal norms were nothing but trouble.

[George K]

@Jon said in Third Arrest?:

From Google:

18 U.S.C. § 242
This provision makes it a crime for someone acting under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

"Cage the Fat Man?"

Wrong:

18 U.S. Code § 241 - Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

The judge in this case has a history of sentencing above guidelines.

There's hope for you Jon!

Hang him!

[Mik]

The more of this comes out, the more it just looks like another witch hunt.

[89th]

We had a sitting President refuse to accept his re-election loss. I have no problem with the DOJ throwing the full weight of the law against him to prevent this from happening again.

[Copper]

@89th said in Third Arrest?:

We had a sitting President refuse to accept his re-election loss.

He must have accepted it at some point, he appears to have moved out.

Since it didn't happen, you won't need the DOJ to prevent it from happening again.

[Horace]

@89th said in Third Arrest?:

We had a sitting President refuse to accept his re-election loss. I have no problem with the DOJ throwing the full weight of the law against him to prevent this from happening again.

The issue at hand, explained nicely in the National Review piece, is about whether this is the full weight of the law, or an overreach of the law. Regardless of how satisfying a smiting of Trump may feel, there will be ripple effects if we criminalize dishonest political messaging.

[Jolly]

@89th said in Third Arrest?:

We had a sitting President refuse to accept his re-election loss. I have no problem with the DOJ throwing the full weight of the law against him to prevent this from happening again.

Excuse me, but did Trump leave office at the appointed time or not?

Now, if you'd like to talk about politicians thinking and believing an election was stolen, and actively using legal means and the art of public persuasion to overturn what they consider bogus results and then you are actually stupid enough to think that the DOJ should throw the full weight of the department into those situations...

Well, stud duck, you need to screw your hat down tight and take another dally around the saddle horn, because you have saddled up an absolute idiot of an idea, with an 18-wheeler load of examples of people that need to feel "the full weight of the Justice Department".

[89th]

Trump specifically said he didn't accept his re-election loss before, during, and after Biden was sworn in. There is a reason he didn't attend the inauguration.

[Jolly]

Did Trump leave the Whitehouse? Was there some military coup I'm unaware of?

Have you decided to become the Minister of Misinformation, where you trample on all speech you do not agree with?

Are you a big fan of Lincoln's actions in 1862, when he suspended habeus corpus? Even doing so after SCOTUS ruled that action unconstitutional?

[89th]

Departing the White House is possible while not accepting your election loss. It's like someone who gets evicted but is screaming that their fake rent check was valid the whole way out.

As I've said many times. Imagine if Obama lost in 2012 and acted the way Trump did. You would be singing quite a different tune whereas my tune wouldn't change. I'm a Conservative but Trump's antics after he lost is 100% unacceptable and unnecessarily created the mess he's in now. But I guess it's all about ratings, baby.

[Horace]

Anyway, this discussion should be about whether Trump broke laws and whether, if there is a grey area, it is good for the country to prosecute those grey areas. The stench of the real motivation here - to smack Trump - is unmistakeable. It would be good to think beyond that.

[Jolly]

@89th said in Third Arrest?:

Departing the White House is possible while not accepting your election loss. It's like someone who gets evicted but is screaming that their fake rent check was valid the whole way out.

As I've said many times. Imagine if Obama lost in 2012 and acted the way Trump did. You would be singing quite a different tune whereas my tune wouldn't change. I'm a Conservative but Trump's antics after he lost is 100% unacceptable and unnecessarily created the mess he's in now. But I guess it's all about ratings, baby.

What's the difference between you and people who wish to use the power of the state to throttle any opinion you do not agree with?

That's not conservatism. That's fascism.

[Jolly]

@Horace said in Third Arrest?:

The stench of the real motivation here - to smack Trump - is unmistakeable.

Most people not suffering from TDS know that. What boggles my mind is the people who do not.

[Jolly]

@George-K said in Third Arrest?:

The judge in this case has a history of sentencing above guidelines.

This Obama-appointed judge in D.C. has a history of sentencing Jan 6 defendants above Federal guidelines.

[Jolly]

BTW, for 89:

2000 Presidential Election
Joe Biden, 2013: Al Gore “was elected president of the United States of America.”
Joe Biden, 2016: “I think [Gore] won.”
Hillary Clinton, 2016: The Supreme Court “took away a presidency.”
Barack Obama, 2005: “Not every vote” was counted.
Bill Clinton, 2001: “The only way they could win the election was to stop the voting in Florida.”
Jimmy Carter, 2005: “There’s no doubt in my mind that Al Gore was elected president.”
Al Gore, 2017: “Actually I think I carried Florida.”
Jamie Raskin, 2003: George W. Bush was the “first court-appointed president.”
Terry McAuliffe, 2004: “We won that election!”
Debbie Wasserman Schultz, 2016: “The Supreme Court elected the president. Al Gore won the state of Florida in 2000.”
2004 Presidential Election
Hillary Clinton, 2005: “It’s fair to say that there are many legitimate questions about” the “accuracy” and “integrity” of America’s election system, “and they’re not confined to the state of Ohio.”
Howard Dean, 2006: “I’m not confident” the election “was fairly decided” because “the machines were not reliable.”
Jerry Nadler, 2005: “The right to vote has been stolen from qualified voters.”
Sheila Jackson Lee, 2004: “We cannot declare that the election of November 2, 2004 was free and clear and transparent and real.”
Maxine Waters, 2005: “Problems in the Ohio election” could have been “outcome determinative.”
2016 Presidential Election
Joe Biden, 2019: “I absolutely” agree that Trump is an “illegitimate president.”
Hillary Clinton, 2019: The election was “stolen.”
Jimmy Carter, 2019: “Trump didn’t actually win the election in 2016. He lost the election and was put into office because the Russians interference on his behalf.”
Kamala Harris, 2019: “Absolutely right” that Trump “didn’t really win.”
Karine Jean-Pierre, 2016: It was a “stolen election.”
Jerry Nadler, 2017: It was a “tainted” and “illegitimate” election.

[89th]

@Horace said in Third Arrest?:

Anyway, this discussion should be about whether Trump broke laws and whether, if there is a grey area, it is good for the country to prosecute those grey areas. The stench of the real motivation here - to smack Trump - is unmistakeable. It would be good to think beyond that.

Agreed. I think there's a pretty clear case that the charges against Trump (defrauding the US, disenfranchising voters, obstructing official proceedings) are valid. It's more than just a sound bite or an opinion, it was Trump doing these things while knowing they were false.

@Jolly the list of politicians on both sides complaining about an election loss isn't new. It's when a sitting President refuses to accept his re-election loss, and the statements and actions he took to prevent the winner from proceeding, that's where this is different than just a statement by a politician about an election loss.

[George K]

@89th said in Third Arrest?:

(defrauding the US

https://www.nationalreview.com/2023/08/this-trump-indictment-shouldnt-stand/

The indictment relates in detail Trump’s deceptions, but that doesn’t mean they constitute criminal fraud. As the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property. Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged. Indeed, assuming a prosecutor could prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him (good luck with that), hyperbole and even worse are protected political speech.

https://www.supremecourt.gov/opinions/22pdf/21-1170_b97d.pdf

We have held, however, that the federal fraud statutes criminalize only schemes to deprive people of traditional property interests. Cleveland v. United States, 531 U. S. 12, 24 (2000). Because “potentially valuable economic information” “necessary to make discretionary economic deci- sions” is not a traditional property interest, we now hold that the right-to-control theory is not a valid basis for liability under §1343. Accordingly, we reverse the Second Circuit’s judgment.

@89th also said:

It's when a sitting President refuses to accept his re-election loss

Hinderaker:

The indictment repeatedly alleges that Trump “knowingly” made false claims about the election being stolen in various states. It supports these assertions with evidence that someone had told Trump that his claims were untrue. But other people were telling Trump that the allegations of a stolen election were accurate. I think it is highly probable that Trump sincerely believed that voter fraud occurred on a massive scale and cost him the election.

The fact that he was "sitting" at the time of his denial should be irrelevant to the indictment.