The Speech-as-Conduct Theory: A Response on the Second Trump Indictment

In the wake of the second indictment of Donald Trump, many law professors have offered good-faith rationales for why the four counts do not violate the First Amendment. Some of these columns respond to my view that the indictment would criminalize disinformation and political speech. While I respect many of these commentators, including my good friend Bill Barr, I wanted to briefly address some of their points. These points have previously been made in my earlier columns but I wanted to offer a comprehensive response to some of these arguments.

Threshold Observations

At the outset, I feel that I should make clear that I have no qualms with indicting Donald Trump or any current or former president. Indeed, decades ago, I wrote academic pieces arguing against the Justice Department position that a sitting president could not be indicted in office. Likewise, while I have been highly critical of the Alvin Bragg indictment in New York, I long said that I thought Trump would be indicted in the documents matter at Mar-a-Lago. When the indictment was filed, I felt it was strong on the evidence and the law. That does not mean that the allegations are true or proven, but it is a sound indictment on the law and evidence.

I have previously written that I believe that the second federal indictment is an attack on free speech. Indeed, as a criminal charge against one of the leading candidates for the presidency, it could not raise more serious concerns over the criminalization of speech. I readily admit, as some have noted, that I have been called a free speech absolutist. In reality, I am not. However, I admit that I tend to oppose most limits on free speech, particularly the criminalizations of viewpoints.

As I said from the outset, Smith could still have direct evidence to submit, including possible witness testimony. From the first day of the release, many of us noted the absence of references to figures like former Chief of Staff Mark Meadows. It is possible that they could offer compelling testimony on Trump’s state of mind, even though I do not believe that would remove the constitutional concerns surrounding this indictment.

Constitutional Lies and Trump’s State of Mind

Most of the indictment is a listing of false statements made by Trump on the election and its certification. The government repeatedly accused Trump of making “knowingly false statements.”  The indictment recognizes that false statements can be protected under the First Amendment.

In the 2012 United States v. Alvarez decision, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who lied about military decorations.

Some commentators have acknowledged this countervailing precedent but note that you can still be prosecuted if you make false statements about your military service for pecuniary or financial gain. That is, of course, true. Speech is a part of all crimes in some form and lies can constitute criminal fraud or conspiracy.

However, in this context, the underlying false statements are being made over an election that was widely criticized by Republicans over changes to voting laws and the use of mail-in ballots. The question is whether such political speech becomes criminal because Trump and others refused to accept the results of the election.

Speech as Conduct

In addition to my book coming out in 2024 (“The Indispensable Right: Free Speech in the Age of Rage”), I have a law review article coming out that deals with the treatment of speech as conduct. The second indictment is based on the same basic model in my view.

Various writers have noted that Trump is not being charged with criminal speech per se. Again, that is obviously true. Even the most anti-free speech prosecutors convert speech prosecutions into alleged crimes. Sometimes it is disturbing the peace or seditious conspiracy, but that has not stopped the Supreme Court from declaring such charges as unconstitutional criminalization of speech.

There is no question that committing fraud for pecuniary advantage or conspiring to commit crimes are not violations of free speech. The question is whether a candidate making false claims about election results can be treated as the same type of fraudulent effort for personal gain.

However, the “acts” are based on Trump continuing to challenge the election even though the government insists that he really did not believe his own objections. That is a dangerous standard to embrace. It would mean that the government could prosecute candidates based on whether they were making false statements (protected) or false statements without cause (not protected).

Take the alternative set of electors. Smith notes that these alternative electors were organized in various states where the Trump campaign was alleging voter fraud or irregularities. That has happened in the past both in the Nineteenth Century and Twentieth Century.  The question is whether the effort without adequate support is criminal and whether Trump can be charged for encouraging or facilitating such efforts by third parties.

It also ignores one other threshold element. Even assuming that you can conclusively show that Trump did not believe he won the election, it is still possible that he believed that he had a legal basis to prevail. Elections are about counting votes. George W. Bush may have recognized that Gore won Florida but still litigated whether some of his votes could be counted or challenged.

Likewise, Democratic lawyers like Marc Elias alleged that thousands of votes may have been switched or changed by Dominion voting machines in New York elections.  Was that also a conspiracy to deprive people of their voting rights?

Democrats repeatedly challenged certification of Republican presidents under the same law with no support. Were they also conspiring to obstruct an official proceeding? How do you draw a line in future cases to give sufficient notice to others?

The Specific Crimes and Underlying Conduct

On the election claims, Smith declares that Trump “knew that they were false” because Trump was “notified repeatedly that his claims were untrue.” Putting aside the right of Trump to believe one set of lawyers over another, you would need to prove that Trump knew that there was no chance that the vote counts were wrong.  He could, for example, believe that there were not hidden votes in suitcases under tables but still believe that he could challenge sufficient votes to make up a difference of only around 11,000 votes to change the result in Georgia.

There are four counts to the second indictment: conspiracy to defraud the United States, 18 U.S.C. section 371; conspiracy to obstruct an official proceeding, 18 U.S.C. section 1512(k); obstruction of and attempt to obstruct an official proceeding, 18 U.S.C. section 1512(c); and conspiracy to deprive persons of protected rights, 18 U.S.C. section 241.

Each of these counts are based on the fact that Trump would not yield to the views of most experts and continued to challenge the election. However, he had a right to seek judicial relief and to use the same federal law previously raised by Democrats to challenge certification. He also had a right to seek vote recounts.

For example, Smith discusses at length the calls with Georgia officials on Trump’s demand for a recount.

There were two calls on the Georgia electoral challenge. The transcript was published by the Wall Street Journal. In both calls, Trump pushed the officials to “find” the uncounted votes. There was pending litigation on such alleged uncounted votes and the other call with Georgia Secretary of State Brad Raffensperger (and both legal teams) was a settlement discussion. The entire stated purpose of the challenges was to count what the Trump campaign alleged were uncounted votes that surpassed his 11,780 deficit. Trump put forward different theories of how many more votes were destroyed or not counted. He continued to return to the fact that they only needed to confirm 11,780 of those hundreds of thousands of allegedly uncounted ballots. Smith and others have suggested that “find” meant “invent.” It could also literally mean “find” in the conventional sense of a recount. Trump could have been saying that it would take little to change the outcome. The question is whether such different interpretations in what was akin to a settlement discussion of litigation can be the basis for criminal charges.

Notably, Smith did not indict on incitement or conspiracy to incitement, the basis of Trump’s second impeachment. The reason is obvious. There was no evidence produced in court or in Congress showing a direct effort to cause or support the violence. More importantly, Smith would have collided with the Brandenburg standard and a likely ruling against the charge.

Instead, Trump is charged with conspiracy to obstruct an official proceeding, 18 U.S.C. section 1512(k)  and obstruction of and attempt to obstruct an official proceeding, 18 U.S.C. section 1512(c). Yet, the indictment (and Smith’s public comments) make it sound like he is being charged with incitement, including a section on how “The Defendant’s Exploitation of the Violence and Chaos at the Capitol.” So Smith evaded the direct application of Brandenburg standard but seeks to criminalize the same rhetoric under an obstruction theory. In this way, he hopes to use the rhetoric to trigger criminal penalties for the disruption but not the violence on that day.

Once again, these acts simply restate the speech as conduct. Yet, many have insisted that Smith is not threatening free speech because he is alleging crimes like obstruction. Yet, the obstruction is based on Trump’s political speech and how it encouraged or spurred others to take actions to slow or prevent certification.

Because Trump did not concede and continued to challenge the election, he is charged with seeking to obstruct the proceedings. Smith does not explain how we differentiate between election lies and criminal lies in such challenges. However, by charging Trump, he is creating precedent that could chill future campaigns from seeking judicial or congressional relief. If the early grounds for challenge are not proven, candidates could find themselves under criminal indictment, particularly by an administration of the opposing party.

The same is true with conspiracy to deprive persons of protected rights, 18 U.S.C. section 241. Every challenge to the results of an election threatens the outcome of an election. Marc Elias’ challenge in New York was entirely rejected, but that did not make it a conspiracy to deprive Republicans of their legitimately elected congressional representative.

Take the certification challenge. The indictment goes into detail that Vice President Pence lacked the legal authority to delay or send back the electoral votes. I wrote before, during, and after the certification fight that Pence did the only thing that he could do on certification. However, some like John Eastman maintained that it was still unsettled law. I disagreed with Eastman, but I am more concerned with the effort to criminalize such claims. (Eastman appears one of the uncharged co-conspirators). Trump politically supported the challenge, but individual members of Congress made their own decision on filing the challenge in Congress. (Those members are also not charged). Again, there is no limiting principle stated or implied in the indictment of when such political causes will be treated as criminal matters.

There have been civil penalties and disbarment actions for those who have filed challenges without sufficient support. Even those actions raise concerns over chilling public interest lawyers who may bring actions to challenge long-standing precedent. Yet, this indictment moves beyond those actions to criminalize the voicing of false election claims and failing to yield to the views of the majority.

Final Thoughts

Once again, these points are not made in defense of Trump’s claims. I criticized Trump’s January 6th speech while he was giving it, defended Vice President Pence on that day (and since), and called for Trump to be censored over his role on January 6th. However, despite a shared and virtually universal disgust with what occurred on that day, this indictment is chilling in its implications for free speech in my view. Simply saying that Smith is charging actual crimes caused by such speech does not eliminate those concerns.

While my views have not changed, these are issues upon which people of good faith can disagree. Yet, the sweeping dismissal of free speech concerns over this indictment has been surprising. I still fail to see the limiting principle within this case to maintain a bright line between permitted and prosecutable speech. Free speech requires such bright lines, particularly with regard to political speech. Without such clear notice and delineation, the government creates a chilling effect on those who wish to exercise their free speech rights. In my view, the chilling effect of this case (if successful) could be positively glacial.

140 thoughts on “The Speech-as-Conduct Theory: A Response on the Second Trump Indictment”

  1. A dubious claim, where free speech and an election are involved, informs us to evacuate the room immediately as the bombs of fascism may enter.

    Psychiatrists have a hard time determining a patient’s mind after careful close-up examination, so if that is a determining factor in this type of legal case, it is also a warning that the bombs of fascism may enter.

    The mark of a fascist is to twist and turn human actions, so they can make them into a criminal case or declare the individual insane.

  2. Most of the indictment is a listing of false statements made by Trump on the election and its certification. The government repeatedly accused Trump of making “knowingly false statements.”….

    The same is true with conspiracy to deprive persons of protected rights, 18 U.S.C. section 241.

    I am not an attorney and it is my understanding that politicians acting in their official capacity are legally protected from the citizenry if decisions made by elected leaders caused irreparable harm, damage and/or death. If Donald Trump, Joe Biden, Barack Obama, Hillary Clinton, et al were to have a massive heart attack today and drop dead, most of us would not care less. Americans have far more pressing concerns than Trump or Biden’s legal worries, privileged, rich white men that they both are. Americans deal daily with fears of violence, broken health care system, open US borders allowing pathogens and diseases to enter unchecked, polarization fueled by elitist political leaders, the weaponization of the government, public schools and universities promoting disinformation while educational metrics plummet, and more.

    The directives by both Trump and Biden’s Federal Agencies to knowingly make false statements and conspiracy to deprive persons of protected rights, 18 U.S.C. section 241 regarding all things COVID from 2020 to present, are far more relevant to Americans than whether election deniers Hillary Clinton, Jimmy Carter, Barack Obama, Joseph Biden, Nancy Pelosi, Hakeem Jeffries called Trump an illegitimate president or whether Trump acted dishonorably as a man and President, in fomenting a riot on Jan 6, just like Joe Biden and Kamala Harris did in BLM ANTIFA 2020 violence

    Yesterday’s WSJ published an article that indicates Pfizer made > $100 Billion in sales due to COVID. Trump and Biden did that at our expense. Trump and Biden also did grave harm from 2020 to today, to Americans by knowingly make false statements and conspiracy to deprive persons of protected rights, 18 U.S.C. section 241 regarding all things COVID. The number of children and adults injured because vaccines were mandated, depriving them and their parents of protected rights, is largely unknown though it is reportedly growing. School closures, in concert with the Feds and teachers unions, did irreparable harm to children’s educational and psychosocial development. The mental health of minors and young adults has worsened in unprecedented ways. These were caused by school closures, social distancing, online / virtual instruction, pushed by teachers unions and the administrative state getting their wishes met at the expense of the poor and the marginalized. The active discrimination and vilification of those who had serious concerns about vaccines, masking, school closures and societal shut downs, were done by Trump and Biden executive agencies and constitute a conspiracy to deprive persons of protected rights, 18 U.S.C. section 241. That Pfizer earned, under the leadership of Joseph Biden friend and Biden campaign financier, Pfizer CEO Albert Bourla, in excess of $100 billion in COVID related sales, is a crime against humanity. Start there.

    Start with the concerns, injuries and horrible outcomes of real Americans, real people, real problems who were victimized by Trump and Biden administrative state in their knowingly make false statements and their active and prolonged conspiracy to deprive persons of protected rights, 18 U.S.C. section 241 till this very day.

    What Americans are witnessing today is the politically elite throwing their political enemies into an Ancient Roman Coliseum-type match so as to entertain their respective elitist audiences. Americans are not entertained. Americans want was taken from them. They want America’s administrative state to be brought to justice. Till then, Jack Smith is a disgrace for continuing the conspiracy to deprive persons of protected rights, 18 U.S.C. section 241 on the backs of knowingly make false statements to Americans.

    Pfizer’s Covid Boost Crashes to Earth
    The pandemic showered Pfizer with record sales. Now the end of the crisis is dragging the drugmaker down.
    Its Covid-19 vaccine and drug powered Pfizer to more than $100 billion in sales last year, the first drugmaker to break the barrier. Shares soared, as Wall Street hailed the company for its savvy, fast and ultimately lucrative pivot to taking on the virus.

    1. “I am not an attorney and it is my understanding that politicians acting in their official capacity are legally protected from the citizenry if decisions made by elected leaders caused irreparable harm, damage and/or death”

      This understanding is not correct. Trump could not shoot Biden, in his capacity as Commander in Chief to protect Biden from “stealing” the White House.

  3. Professor Turley,

    Submitting falsified documents claiming to be the “duly elected and qualified electors” goes beyond a litigation strategy or the First Amendment. That is fraud.

    Threatening the Secretary of State with legal action and political retaliation goes beyond litigation negotiation.

    Threatening the VP with political retaliation such that he feels the need to put his security on heightened alert goes beyond a simple request.

    Your summary of the actions Trump and his conspirators took leaves out inconvenient facts like these.

    If Trump had stopped when the lawsuits were thrown out, there would be no charges for criminal conspiracy. But, that was only first step in a much larger plan to take back the White House by any (extralegal) means necessary. Eastman made this clear in an interview with the Claremont Institute, too.

    1. “Submitting falsified documents claiming to be the ‘duly elected and qualified electors’ . . .”

      Then federally indict all of those alternate electors and the state legislators who appointed them. Then prove, by reference to the various state laws, that those documents were “falsified.”

      That some state AG’s are attempting to do so, only proves (yet again) that they have learned well from their masters at DOJ.

        1. So SEVEN STATES did not believe the phony cheating election outcome.

          That’s so very interesting, considering it was (Homeland Security Head) “THE MOST SECURE ELECTION EVER IN THE HISTORY OF THE UNITED STATES OF AMERICA”.

          You just cooked your own goose there.

    2. Anonymous –
      Allternate electors: as JT noted, alternate or contingent electors have been used in the past by the political parties. No one was charged with a crime.
      “Threatening the VP with political retaliation . . .” “Political” retaliation does not suggest any kind of violence. Politicians take “political” acts against other politicians every day of the week: “I refuse to vote for your bill because of what you did to me last year.”

      1. The Nixon / Kennedy Hawaii example does not accomplish what you think it does for three reasons:

        1. The issue was moot because it occurred before the recount was finished, and the recount changed the outcome for Kennedy.

        2. Nixon, as VP, didn’t certify the alternate electors from Dec. 22, 1960. Rather he certified a new set of Democratic electors transmitted by the newly elected HI governor on Dec. 28, 1960 after the recount concluded.

        3. Even if they had used the initial set of electors, those electors did not violate the Electoral Count Act. A state court in January then confirmed that this was a crucial step in confirming the legitimacy of the alternate electors.

      2. Also, political retaliation absolutely can lead to violence. That’s akin to saying that doxxing can’t put someone’s life in danger because it is just an address! Come on, man.

        1. So the violence of Jan 6th is on the demoncrats and the intel agencies according to your blabberings.
          When will your criminal cohorts be punished seven ways from Sunday ?

  4. Was Eastman Trumps Lawyer or just someone with a novel theory? Not sure if legal advice defence stands if he wasn’t Trumps counsel?

    Also, given the difference of opinion here re protective speech. Does this not show how legal theories, no matter if they don’t garner blanket agreement are still valid.

    Jack Smith fitting legal statutes to make a crime. Strikes me as more novel than Eastman advising Trump to instruct Pence to send electors back to the states.

    Surely there has to be an adult somewhere to pull this indictment. America is better than attempting to throw a former President in jail for trying to make sure a vital election was honest?

    1. Eastman was Trump’s counsel and has previously asserted attorney-client privilege with Trump.

      1. That, too – penetrating atty/client privilege of a president – may come back to haunt the Biden brand. . in the not-to-distant future.

        *when the Biden ship of state starts listing more than 10 degrees port, you can be sure there will be so many lawyers/high officials jumping ship DoJ will need a fish net to catch them all.

  5. Trigger Warning: readers may see the name, Bill Barr
    Honestly, what lights peoples’ fuses really astounds me.
    Obviously, Bill Barr is trying to resurrect himself from his stint in the Trump Administration. The man does have to make a living and so far, anyone ever associated with Trump has a difficult life ahead of securing any income above jobs which require hair nets. I find Professor Turley and his viewpoints to be a breath of fresh air in this age of lunacy. Speaking for myself, if I chose to have only friends, casual or close, who pass the cultural litmus test of acceptability as exists today, I wouldn’t even have a family to associate with. Readers, please take a powder and consider rational thinking, regardless of the individuals who are being considered. There is no way to move our culture to a better place if virtually everyone is a lightning rod.

  6. “The second indictment is based on the same basic model in my view.” (JT)

    That is exactly right. And we’ve seen that “model” countless times.

    According to the Left: Speech is violence, and silence is violence — if it doesn’t like the speech or silence. In other words: Dissent is verboten. And you will chant the party line — or else.

  7. Anyone doubting that some of the comments here emanate from a common source should note how often we see phrase “they said Trump asked them to invade the Capitol building”. A calculated attempt by the Democratic Party to evade the evidentiary problem that Trump said the opposite.

  8. Poor Bill Barr. He had the dream job with the nightmare president. A man of character could have withstood the strain, and even thrived under it, but it has made Barr bitter. He will forever go down in history smeared with the taint of his association with Trump. He has concluded that the only way to remove the taint is to smear and attack Trump. What Barr needs to understand is, first of all, it’s not going to work. He will be forever hated by the left, for actually trying to do a good job and treat Trump fairly at the beginning of his appointment, and by the right, for throwing Trump, and the entire country, under the bus with his three monkeys see no evil hear no evil speak no evil routine in regard to credible allegations of election fraud that Barr dismissed out of hand.

    Professor Turley’s Panglossian mantra, which started on about week 2 after the totally not stolen at all election, that there was no election fraud and that all was for the best in the best of all possible worlds, is frankly unworthy of him, of his readers, and of the country.

    The justice system has been weaponized, speech is criminalized, and thought is emotionalized. Bill Barr is clearly unable to distinguish between his personal rancor towards President Trump and justice, which Trey Gowdy always describes as the lady with a blindfold holding a set of scales. Professor Turley too, allows his emotions to creep into his opinions in a way that is disappointing in someone claiming to be objective. While I appreciate Turley’s willingness to defend free speech at all, I find it sad that he feels the need, while doing so, to reiterate how much he can’t stand Trump.

    This hatred for Trump is a kind of madness, a fever that has yet to break. It has had the effect of revealing to America what was lurking just under the surface of fairness and civility, and it’s not pretty. One day, the fever will break. I don’t know what it’s going to take, but when you look back at history, the McCarthy era eventually ended, the Third Reich was defeated. One day, people will look back at their own actions, their own words, and say, in the words of David Byrne, “My God, what have I done?”

    1. I always try to present a ‘Panglossian’ attitude myself. .. down here in the mud, the blood and the bud light beer.

      *I’m confident somewhere over the rainbow bluebirds fly .. . and dreams really do come true.

  9. The indictment criminalized lobbying. If you lobby a Senator — and maybe contribute to his campaign as a token of support — to filibuster a bill that would be harmful to your business, that would be a conspiracy to obstruct a proceeding, no? (The Senator is protected by the speech debate clause).

  10. There are no more “bright lines” with Merrick Garland. His singular goal is to protect the Bidens at all costs, and if means criminalizing free speech, he’s fine with that. Prosecute President Trump over a classified records dispute but let President Biden walk indictment free? The double standard is astounding.

    1. RE: “There are no more “bright lines” with Merrick Garland…” …and this wretch of a human being is what a Democrat POTUS deemed worthy of a lifetime appointment to the SCOTUS. Not surprising in that the same Chief Executive thought a draft-dodging wretch of a musician worthy of the Presidential Medal of Freedom. Change certainly has arrived.

  11. When Sonny Corleone tells Peter Clemenza to push a button on Bruno Tattallia, is that merely free speech? A suggestion? Are the foot soldiers to be prosecuted for war crimes but not the generals?

      1. Those arrested for violence at the capitol building on Jan 6 said they did it at the request of trump. Trump’s speech prior to the insurrection was filled with violent rhetoric. The few times he said “peacefully” were completely overshadowed by his call to make sure they “did the right thing”. Don’t take my word for it, listen to those that have gone to court to answer for their actions. They pretty much all say they did it at the behest of trump. Words that call for action can be a crime.

        1. “. . . said they did it at the request of trump.”

          There are countless schizophrenics in psych wards who say that “voices” told them to do it.

          I don’t think they count as witnesses, let alone credible ones.

        2. Peacefully protest. The decision to be violent is an individual fault, not the group’s. The planned leftist violence seen nationally is from the leftists you support and is a group action. Moreover, the videos later released, demonstrate that much of the violence never occurred, and was shared by the Capitol police and leftists.

          You are blowing the violence of those supporting Trump and the rule of law out of proportion to satisfy your personal needs rather than the truth. You are ashamed to admit the violence of the left and your complicity occurring in the cities and during events like the Kavanaugh hearings. Jan 6 violence from protestors is tiny compared to the violence from the left. You cannot absolve your shame by blaming the very few for the actions of many violent leftists you support.

        3. After two of solitary confinement with no charges for “crossing the threshold” while being waved in by capitol police and then walking within the velvet ropes and leaving, all sorts of “you will say this” or back in the black room for two more years works wonders.
          Those who incarcerated these people need to be removed and imprisoned.
          Now this jack quack spit is demanding a speedy trial !
          a speedy trial !
          See you in two years jack quack spit.

    1. Committing murder is not the same as challenging an election. One is a crime the other is not.

      Moreover, Sonny’s speech to Clemenza is an order. A challenge to an election is a request and an argument. Clemenza’s responsibility is to obey the order. The election official’s responsibility is to assess the argument and based on what he finds, grant or deny the request. The issue of an order is conduct, the making of a request in the form of an argument is speech.

      1. Daniel, it has been said that Trump, “Incited” the Audience. Taylor Swift “Incites” an Audience. Trump’s Rallies and Taylor’s Concerts get the Crowd excited/incited.

        Raymond Epps & Co. on the other hand, “Induce” an action, they put the Muscle to the Incited Crowd. It was Epps & Company’s speech that Put-the-Hit on the Capitol that Day. Epps & Co. gave the Orders. not Trump.

        Now if Taylor Swift were to give the Order to Put-the-Hit on the Capitol, you could bet that a Million Teenage Swifties would reduce it to marble dust. Taylor wouldn’t do this, because She knows ‘with Power comes responsibility,’ as such, Trump knows this very well.

        This is the moral of the God Father Story, Michael Corleone knew that ‘with Power comes responsibility’, he learned that from his father Vito Corleone, whom had high ambitions for Michael. He taught him well, Sonny was a loose Cannon, and Vito knew it.

        Trump is not a loose Cannon, He’s intelligent and knows ‘with Power comes responsibility’. That’s why he thrives for it, The Power that come along with Responsibility.

    2. David, you tell us. Is that singular statement going to send a person to death row?

      A simple reading of the law. No

  12. The Professor proves his abilities as an Advocate for Free Speech.

    In clear unambiguous language he sets forth the fallacies behind the Indictment of Donald Trump on these matters, and clearly pointing out that shy of direct evidence to the contrary, Trump should not have been Indicted.

    That means as usual, the evidence must live up the requirements of the Law and not mere popular opinion.

    Which of course when it comes to all matters Trump….the Left (Smith, his staff, the AG, DOJ, Media, and other Democrats who see Trump as the Devil Incarnate) wish to ignore.

    Trump shall have his Day in Court, will be represented with excellent Lawyers, and Smith shall have his chance to prove his case or fail.

    Even if Smith should prevail and win a conviction of any kind the Case shall no doubt be appealed…..possibly winding up before the US Supreme Court.

    Smith has been embarrassed by a prior unanimous Decision of the Supreme Court for way overcharging a former Virginia Governor and his Wife and the possibility that could happen again is very real.

    If that happens….watch the Left go absolutely bonkers and immediately begin impugning this Court’s Justices appointed by Trump.

    AG Garland has not shown much concern about the physical safety of some members of the Court evidenced by the DOJ’s lack of effort to provide security of those Justices or to aggressively prosecute those offering violence to them.

    Will the Left accept the Rule of Law in that instance or shall they as in past elections deny the outcome and reject the finding although there is no way they can legally or appropriately challenge the Court should that happen.

    1. “watch the Left go absolutely bonkers”

      I think you have your left and right confused. Didn’t those on the right go bonkers at the Capitol building on January 6?

      1. Bob, as always, a matter of degrees.

        As compared to what the nation saw during the summer of love, Jan 6 was a church picnic were the pastor raised his voice during the softball game.

        1. Really? In the summer of love they stormed the Capitol building, hunting the Speaker of the House and the Vice President in the hopes of hanging them on the gallows they built in front of the Capitol? I never saw those news reports from then summer of love. Could you please provide reference to this event?

          1. Much was not reported in the MSM or even the “conservative” media. Still, they happened.

  13. I question the oft repeated line that Trump listened to bad advice from lawyers. It’s more likely Trump gave bad directions to lawyers until he found some that would follow his lead. There are many examples of Trump directing lawyers to break the law, starting with Pence. Let’s not forget his directive to Jeffrey Rosen, “‘Just say that the election was corrupt + leave the rest to me’” That’s not listening to lawyers, it’s telling them.

    1. directing lawyers to break the law, starting with Pence.
      What law? We all know congress changed the controlling legislation concerning the VP duties. So the existing legislation could not have been used to challenge the VP

  14. “There was no evidence produced in court or in Congress showing a direct effort to cause or support the violence.”

    The violence at the Capital happed within minutes of Trump calling for his followers to march to the capitol. Those convicted of crimes at the Capitol said they did it because trump asked them to. I don’t know what reality JT is living in, but to me that is direct evidence that trump incited the mob to do violence to keep him in power.

    “However, despite a shared and virtually universal disgust with what occurred on that day…”

    If only that were true. So many Rs have said the mob was just a bunch of tourists. IMHO, those that committed violence at the capitol should be glad they have not been hung for treason. Because that is exactly what they did, they tried to violently keep a person in office that had lost the election.

    And here we are, nearly 3 years after the election. where is the evidence of fraud? Many on this blog keep bring it up yet there has been no proof brought before a court of law to show widespread fraud. Arizona did a recount, managed by trump supporters. They concluded the vote total was off, in Biden favor. Trump lost Arizona by more than originally thought. Where is the proof of fraud? At some point you have to put up or shut up. We are long past that point.

      1. RE: “You left out one key word: peacefully..” That which fails to suit the narrative is always omitted, media source notwithstanding.

    1. “I personally don’t know what reality JT is living in, but to me that is direct evidence that trump incited the mob to do violence to keep him in power.”

      Fortunately, “to me” doesn’t translate to the legal definition of incitement.

      Trump asked his hundreds of thousands of supporters to march “peacefully and patriotically” to the Capitol and to “make your voices heard.” Many of those same people had done exactly this twice before following what many personally witnessed was a suspicious election. No one is alleging Trump told them to storm the Capitol, break windows etc.

      Earlier that week, VP Pence TOLD his supporters that all concerns would be aired on J6. What millions we’re advocating for was a pause to actually investigate the thousands of affidavits filed by election workers and observers of irregularities. It wasn’t unreasonable. When Pence announced he gad no intention of doing so, even though he’d indicated otherwise, people were furious. Trump really had nothing to do with the anger that day.

      Those who busted there way into the Capitol deserve everything they got, but others who came in after or merely entered the previously barricaded grounds did so not knowing they were breaking the law- unless they had been warned. Even then, those who were violent constituted a very small fraction of those present and yet ALL have been vilified.

      This story is deeper and much more complex than you’ve been led to believe.

      Mr Turley us a voice of calm reason in an otherwise hyperbolic chamber of hatred toward Trump and his supporters (who comprise tens of millions of people.)

      1. “No one is alleging Trump told them to storm the Capitol, break windows etc.”

        You are factually incorrect. Those arrested and tried in court have said exactly that. They did it because trump asked them to.

        And here we are 3 years later. Where is the evidence? Do you realize how silly you sound talking about evidence of fraud 3 years after an event? No evidence of widespread fraud has come forward yet. When can we expect the evidence?

        1. Bob, one year before J^ a leftist mob attacked the WH, burned a church across the street and forced the PRESDIENT into the bunker, was anyone charged? Did Kamala supporting bail for rioters against FEDERAL court houses and police stations get charged? Was there any conspiracy indictments against ANTIFA or BLM? If not why not?

          We had a year of leftist riots and one day of a right wing riot and the one day is Pearl Harbor, the Civil War and 9/11 rolled into one. IT IS ALL A LIE.

          1. That one day is the only day in the history of this country where citizens supporting the person that lost the election for President tried to keep him in power by use of force. Yea, I’d call it a pretty significant event.

            1. When the government tries to steal 4 years of an election from 2016, then doubles down and steals the 2020 election, redressing of grievances is in order.
              The thieves whine they do not have to redress grievances. That’s your side, the thieves and criminals.

              1. Where is the evidence of a stolen election? Saying it was stolen does not make it so, it takes some sort of evidence. Arizona Republicans did a recount. They found Biden got more votes than previously thought. How does that make trump the winner? Where is the evidence? you guys have been crying stolen election for almost 3 years. Are you that dense you cannot find one piece of evidence that shows trump won? Please, quite saying stolen election and bring forth some evidence.

    2. “IMHO, those that committed violence at the capitol should be glad they have not been hung for treason.”

      No facts presented have risen to a point to justify THIS type of dangerous rhetoric. If you’re arguing Trump “incited violence,” perhaps you might tone down your own rhetoric before you criticize that of others.

      1. Those arrested and convicted of crimes at the capitol on January 6 have said exactly that. They did it because trump asked them to. Weren’t oath keepers convicted of seditious conspiracy?

        Sedition – incitement of discontent or rebellion against a government.
        any action, especially in speech or writing, promoting such discontent or rebellion.

        1. Bob, give it a rest. Congress or any DoJ prosecutors, including Smith, know the elements required are not met.

          You keep repeating the lie, even after you have been corrected. You are as guilty as Trump.

          1. Hey Bob, did Bernie Sander’s name ever appear at the trial of the guy that shot up the Republicans playing softball? Did Kamala’s name ever come up at any ANTIFA bail hearings?

            Life in DOUBLESTANDARDSTAN is getting harder and harder to stomach.

        2. Bob, you are guilty of hypocrisy. You blame a group for individual actions while not blaming your group or yourself for the violence supported throughout the nation.

          1. What group do I belong to? I was speaking to people actually convicted in a court of law for seditious conspiracy. Was I incorrect on that event? Did many of those convicted say they attacked the capitol in an attempt to keep trump in power at the urging of trump? What have I said that is a lie?

            1. Bob, did you complain about the summer of riots? Did you complain about the Kavanaugh hearing? Did you complain that when initially threatened, Garland didn’t provide more protection to the Supreme Court Justices?

              Where else have you demonstrated violence is wrong?

              Trump talked about petitioning their leaders. He did not push for violence. He said Peacefully.

  15. I agree with your points. Writing this just to let you know there MAY be a typo near the end of the article in which you say “Once again, these points are not made in defense of Trump’s claims. I criticized Trump’s January 6th speech while he was giving it, defended Vice President Pence on that day (and since), and called for Trump to be censored over his role on January 6th.” Instead of “censored” did you mean to say “censured”? It seems that sometimes someone else has written your articles as they have typos & grammatical errors in them. Perhaps a tough editor would be useful to go through before sending?

    1. IMHO, the Republican Party ceased to exist 7 years ago. The now reformulated Trump party will be unable to get enough electoral votes to win a national election. The trump party in Georgia lost the Senate races to the Ds 3 years ago. Just look how poorly the trump party has done in the mid terms. The trump party will carry a few states, Idaho, Wyoming, North Dakota, perhaps Utah, Alabama, Kansas. The trump party has made a fiasco of Arizona, that one is lost to the Ds. Georgia is also lost to the Ds. I think DeSantis is making sure the trump party looses Florida. But go ahead, believe what you will. It will take 10 to 20 years for the Republican Party to recover from the trump fiasco.

      1. “It will take 10 to 20 years for the Republican Party to recover from the trump fiasco.”

        If by “recover from the trump fiasco” you mean return to being the party of enormous frauds such as Mitt Romney or John McCain or George Bush (Bush Daddy and/or moron son) or DICK CHENEY, we can only hope that it NEVER happens. Those “leaders” are the UniParty FRAUDS that gave birth to the Trump republican party by virtue of their dishonesty and premediated ineptitude. If America chooses to go backwards to embrace those frauds, then we really are lost.

        Meanwhile, even if I didn’t already have enough bases to disregard Turley’s opinions (personal and legal) about Trump due to Turley’s perpetual equivocation, the statement of respect for Bush lacky Bill Barr sufficed to cement my own opinion that nothing Turley says about Trump is relevant.

      2. If the “real” party is made up of career politicians, it isn’t worth having. I’m not looking to destroy the Republican Party, I’m looking to destroy the entire Federal Government as it exists today. Your figures are about right. 10-20 years of absolute chaos in Washington might be just enough to wash the slate clean, pretend it’s 1787 agan, and start all over from ground zero.

      3. You are absolutely correct that the country is in the midst of an enormous political re-alignment.

        But you have things backwards – Trump did not transform the party – Trump saw the realignment and capitaolized on it.

        Whether you like it or not – and I do not personally like all of it, that Realignment agenda is incredibly popular.
        Further without that realignment – Republcians were ACTUALLY doomed. The Ropmneys and McCains and Bushes were played out. That win of the party was not going to win elections nationally nor in most states.

        Democrats have reacted by doubling trippling, quadruppling down on idiocy.

        It is not the republican party that is in great danger right now – it is the democrats.

        Republicans take a larger share of minorities with every election. Democrats have become dependent on very young very white college students that have traditionally failed to vote – and despite mailin voting in 2020 which allowed them to votge from their couches – they are reverting to the norm with each cycle. Further the generation following though by no means majority republican is the most conservative younger generation possibly ever.
        And Every generation – including the woke idiots that elected Biden gets more conservative as they age. Democrats are riding a small and shrinking bubble. There is no question it will burst.

        I would further note that I do not think there is a current republican candidate that is not on board with the MAGA agenda. That is not because Trump has the party enthrall, it is because that is where the voters are.

        Neo-cons are rejoinging the democratic party. While the working class which used to be democrats bread and butter is moving ever further right with each cycle. The same Democratic analysts that were predicting a permanent democratic majority are now warning democrats that they are in trouble – they have sold their base to the GOP and they are not getting it back.

        Increasingly – despite rhetoiric it is the democratic party that is the party of white elites.
        It is the democratic party owned by big business.

        i would further note this cycle has not even started.
        Biden is in deep trouble and the bad news has not really started.

        Trump may face horrendous legal battles, but he has survived everything so far with his populatity intact.
        and it is going to take a miracle for democrats to dent that.

        Further Biden is likely facing multiple whammies moving forward.

        The FED has been polaying games with the economy – thus far successfully avoiding recession,
        But the fundimentals of the economy are incredibly bad. The FEDs balancing act can not continue.
        There are only two choices – Recession or inflation. Though there is actually a worst of both worlds possibility of BOTH. Whther the Fed conspired with Biden to try to make the economy look better than it is or they did this on their own – does not matter much – it is highly likely a reconning is coming.
        The fed can not lower interest rates without inflation spiking back to 9% plus nearly immediately
        Nor can it raise interest rates without causing a recession. Nor can it stay in the precarious position it is.

        There is actually good news for the US economy in the long run – much of that is inevitable, and some of it is due to Trump led global realignments. Regardless it is coming. But NOT before a near certain recession.
        One that is optimally timed to screw biden and democrats in the election.
        There are way way way to many problems right now – where we are at is unsustainable.
        The cost to borrow commerically is near 10% and we have a massive corporate debt bubble that must be refinanced over the next several years. Many many businesses will not be able to refinance at current rates.

        We have majro problems in large segments of commerical real estate – these are not litterally Biden’s fault, But the inflation and subsequent high interest rights that move them from a problem to a disaster Are his fault.

        Long term US prospects are good because the US is likely re-industrializing. it is incorrect to say that Trump caused this – but he recognized it before most. Globalization is not completely over, but it will significantly diminish, and the Biden administratiion is ideolgoically at odds with US reindustrialization.

        China is in a schiff load of trouble and even small but inevitable declines in chinese outp[ut have global repercussions.

        Even the Ukraine mess may bite Biden if it is not resolved soon. Everyone has been expecting a Ukrainian counter attack that would make this look like it was moving towards resolution starting in March.
        it is August and nothing has happened of consequence.

        Americans will lose interest in a protracted conflict. And Biden will have Ukraine as an albatross absent a resolution soon.

        Amd none of this addresses the fact that Bidens coprruption scandal is NOT going away anytime soon. There will ALWAYS be more to find.

        Democrats screwed up – they needed to push Biden out early this spring the longer they wait the harder it will be to bring in a new candidate and build them up prior to the general.

        I have repeatedly advised republicans NOT to impeach Biden NOW. I have argued they should target Garland.
        The longer this all drags out – the more damage it does to the ENTIRE democratic party. Though we are already seeing cracks. Manchin has all but announced he is leaving the democratic party. More and more democrats as well as the media are showing cracks in their support for Biden. Biden is an albatross around democrats necks.
        The longer they support him the more damage they do to themselves.

        I do not know if Garlands appointment of Weis as SC is real. I do know that it does not matter.
        If it is a ruse to protect Biden – that empowers republicans.
        And if Weis actually takes the responsibility seriously – it MIGHT help democrats – if they abandon Biden,
        but it will take down Biden.
        Further if Democrats turn on Biden – he will be gone RAPIDLY.
        And that too poses a problem for Democrats – Vice President Kackles is less popular by far that even Biden.

        Democrats MUST separate themselves from Biden and they should have done so shortly after the 2022 election
        waiting harms them,

  16. Turley misleadingly states Trump’s call to the Republican Secretary of State in Georgia had “both legal teams” on the call. The “both” did not refer to Biden’s legal team, but to Trump’s and the Secretary of State’s. A legitimate call to a Secretary of State to discuss election results would have had Biden’s team on the line as well as the other candidate who can present Biden’s side of things. Otherwise, this is just the head of the national Republican Party pressuring another member of his party. To the latter’s credit, he did not fold under this unlawful pressure.

    1. Politico, the litigation was between theTrump campaign and the Secretary of State. The Biden campaign was not a party.

      Much of what Trump was arguing in Georgia was that unlawful votes were improperly counted, and that the number exceeded the margin, requiring a new election under Georgia law. Subsequent research highlighted by Margot Cleveland has shown that this was almost certainly true, looking only at votes cast in one district by voters who had moved out of that district before the relevant date.

      I agree with Professor Turley on this. Challenges to elections are not illegal. They do not become illegal simply because a defeated candidate repeats the same challenge on day 2 after being told on day 1 by the relevant official or by an advisor that it is not valid. That is all that happened here. And it matters not what the candidate thinks about the truth of his challenge or the likelihood that it will prevail.

      Nor is it illegal to prepare for the possibility that a strategy might succeed by submitting the votes of alternative electors. That has happened in the past and has never been viewed as a crime.

      Nor is it a crime to rely on legal advice in making an argument, even if it is highly doubtful.

      All Trump did here was make arguments based on dubious facts and weak legal theories. Those arguments were consistently rejected. Making arguments, even in bad faith, about the validity of a political election, should not be transformed into a crime.

      1. “Subsequent research highlighted by Margot Cleveland has shown that this was almost certainly true, looking only at votes cast in one district by voters who had moved out of that district before the relevant date.”

        You might want to add some critical thinking to this analysis as it pertains to a Presidential election, where the total from the state is counted rather than a count of individual districts. If this analysis was correct, and a vote was cast in District 3 in Georgia rather than in District 4 in Georgia, it would not affect the overall vote in Georgia. This analysis is a red herring.

        1. It is not a red herring. It is technically correct that those votes were illegal and should not have been counted. They voted in a district where they no longer had the right to vote, so the votes were illegal and should not have been counted. That they might have lawfully voted somewhere else is irrelevant.

          1. Daniel, isn’t it funny how obtuse Kurt is in thinking just because a person voted in the wrong district shouldn’t effect the state’s outcome??? Hey Kurt, if you vote in the wrong town, district or precinct your vote is NULL AND VOID. Think man.

  17. These Pied Pipers, and those who dance to their tune, will not be happy until the men in the High Tower are in charge. Then will come the drawing up of plans as to who is to be loaded into the freight cars and carried away. For sure, it won’t be any of their ilk….so they are wont to believe.

    1. They’ve already seen those carted away, they live in fear right now.
      Is everyone to admit what has already been going on ?
      We saw them murder with their covid lies.
      We saw them destroy so many lives we cannot even get an accurate count.
      This came down to the local levels all over the nation.

      The freight cars have been running for some time already.
      When 51 three letters “including five former heads!” as joey screamed, lied to us all blatantly and openly to help steal the election it’s far past time to stop pretending. Those 51 need to be in the defendants seat, not Trump.

    2. What tune do you dance to?
      Open borders with millions pouring in and the cartels profiting from drug and sex trade
      Establishment democrats and republicans extending the debt limit to January 2025 thus allowing the federal government to spend 14 to 15 trillion over the next 2 years which is about 2 trillion per year over revenues
      Pouring more billions into Ukraine when we insisted on bringing them into NATO which we knew was a red line for the Russians. I guess as long as Russians are dying it’s okay
      The Biden crime family receiving millions from foreign entities

      I’ll take Trump’s policies every day of the week and twice on Sunday

      1. Re: “What tune do you dance to?..” Well you’ve pretty much catalogued the looney tunes and merry melodies, haven’t you.

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