The Back Road: Free speech and criminal conduct not the same

The Back Road: Free speech and criminal conduct not the same

By Andrew Malekoff

The federal indictment of Donald Trump for attempting to overturn the 2020 presidential election has triggered considerable legal analysis and debate. Defendant Trump has been charged with conspiring to defraud the government, disenfranchise voters and corruptly obstruct a congressional proceeding.

One of the emerging arguments, addressed in Paragraph 3 of the indictment, is regarding Defendant Trump’s First Amendment rights.  Criminal conduct is not protected by the Constitution, only free speech. To illustrate: I can legally threaten that “I am going to rob that art gallery.” That said, if I then proceed to abscond with paintings, the act of theft is not a protected First Amendment right.

The 45-page indictment claims that Defendant Trump used false claims about Vice President Mike Pence’s authority to overturn the election. The falsehood became central to the rioters’ menacing chants to “Hang Mike Pence” and ominous calls looking for then Speaker of the House Nancy Pelosi – “Where are you, Nancy? We’re looking for you!”

Paragraph 11a of the indictment plainly states that Pence, “who personally stood to gain by remaining in office as part of the Defendant’s ticket and whom the Defendant asked to study fraud allegations—told the Defendant that he had seen no evidence of outcome-determinative fraud.” Nevertheless, the rioters accepted Defendant Trump’s false claims and erected gallows complete with a hangman’s noose in front of the Capitol as an unambiguous symbol of the political violence to come.

Paragraph 96 of the indictment explains that on Jan. 5, 2021 “the Defendant encouraged supporters to travel to Washington on Jan. 6, and he (Trump) set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification ceremony to reverse the election outcome in the Defendant’s favor.”

The Defendant met with Pence alone on Jan. 5. Pence (Paragraph 97), Pence “refused to agree to the Defendant’s request that he obstruct the certification.” The Defendant then said that he would have to publicly criticize Pence; to which Pence’s chief of staff alerted the then VP’s secret service detail out of grave concern for his safety.

With respect to the violent undercurrents leading up to the Jan. 6 insurrection former Appellate Judge Michael Luttig, a lifelong conservative, was enlisted in “an urgent effort on the part of Mr. Pence’s inner circle to bolster the VP’s stance that he could not do what Mr. Trump was demanding of him: unilaterally decide to invalidate the election results when he presided over the joint session on Jan. 6,” The New York Times reported on June 16, 2022.

At the same time Trump acolyte Jeffrey Clark, former assistant attorney general for the Environment and Natural Resources Division of the DOJ and widely considered to be Co-conspirator 4, suggested that Mr. Trump consider invoking the Insurrection Act. That would have enabled the use of the military to suppress civil disorder, insurrection, or rebellion.

Given his stature and the high respect with which he is held, Luttig was urged by close associates of Pence to intervene. While the judge revealed that he was unfamiliar with tweeting, he had recently registered with Twitter (now known as “X”). He solicited tweeting instructions from his son, and then issued his first ever thread (@judgeluttig) on Jan. 5, 2021, which reads in part:

“The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast. The Constitution does not empower the Vice President to alter in any way the votes that have been cast, either by rejecting certain of them or otherwise…Neither the President nor the Vice President has any higher loyalty than to the Constitution.”

On Feb. 14, 2022 Luttig, who served on the U.S. Court of Appeals for the Fourth Circuit, wrote in The Times that “Mr. Trump had exploited the convoluted language of the Electoral Count Act to delegitimize electoral votes for Mr. Biden in the 2020 election, and that he believed Mr. Trump could do so again in 2024.”

When a failure of civic character prevails, the fate of America lies in the balance.

Get out the vote!

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