When I was an AUSA doing appeals (I did about 150 of them over the years), I found that one of the things that the court found most helpful (and professional) was when I would try to give the best and most lucid version of the defendant's argument (which his counsel often failed to do) and then answer it. I was wondering if you could do a version of that here. Specifically, as to the Jan 6 indictment from Jack Smith, I've heard some Trump backers say that there's a good First Amendment defense, pointing out that simply contesting election results is not a crime, and that in order to avoid chilling such contests, the courts should bend over backward not to criminalize even pretty aggressive behavior.
I don't know that I buy that argument, but I don't think the courts will treat it as frivolous. Indeed, I think it's about the best Trump has. So I was wondering if you could outline how that argument would look put in its most erudite and appealing form (which Trump's lawyers are unlikely to do), and then detail how Jack Smith should respond.
I do think this is the aspect of the case that's most likely to draw serious attention from judges, so hearing from an expert (like you) is going to improve my education.
It's interesting that you focus on the First Amendment argument. In my view that's the weakest of the different defenses being floated by his team. After all, probably every fraud case involves the defendant speaking to his victims, and every conspiracy involves the co-conspirators speaking to each other. But that speech in furtherance of criminal activity is not protected. The one potentially sticky 1st Amendment issue would have been if Smith indicted Trump for inciting an insurrection based on on his January 6 speech on the ellipse, but Smith wisely chose to sidestep that issue and not charge it. (Recall that charge was part of the referral from Congress.)
Contesting the results is indeed not a crime. As the indictment points out, Trump had a right to speak about it. He also had a right to file legal challenges, and did - more than 60 of them. But when those failed he did not have the right to pursue illegal means to stay in power.
I don't think I could write the post you suggest because I don't think I can come up with a non-frivolous 1st A argument. I see this as a political defense Trump is making ("They're trying to silence me!"), not a legal one.
Thanks for your answer. If you're Trump's lawyer, your view of life is that when your client is a lemon, you do your best to make lemonade. The problem with lemonade is that it can turn out sour. I'm sure each of us squared off against defendants whose arguments made you want to turn away with embarrassment. But when you're a defense lawyer, then, as Hyman Roth said, "This is the life we have chosen."
I understand, but if you were a prosecutor trying Chesebro separately, would you spend most of the trial offering evidence of lies about Dominion and Caesar Chavez, tampering with voting machines, slandering election workers, plotting to send phony DOJ letters, late night White House meetings, etc., etc.? The one-sentence cross of most witnesses would be: did Chesebro have anything to do with that? And the answer would be: Never heard of the guy. Is all that evidence even admissible? There’s no hearsay problem, but is proof of activities of which Chesebro was unaware even relevant to whether HE conspired to conduct the affairs of an enterprise through a pattern of racketeering activity? Does a prosecutor have an inherent right to present evidence of the full scope of the conspiracy a defendant is charged with entering regardless of how much time it takes and how little bearing it has on the defendant’s own guilt? And even if a prosecutor could do that, would it be sensible for her to do it? Wouldn’t cheseboro’s trial tend to become primarily a trial about writing some ridiculous legal memos, and wouldn’t that be very much to his advantage? Can you imagine a joint trial of the two defendants who’ve sought speedy trials so far, Chesebro and Powell? They had a common objective, but there would be very little overlap in the evidence bearing on their activities.
I think the speedy trial moves in Georgia have a lot to do with severing the movants’ cases from those of other defendants, particularly Trump. Consider how much less evidence will be admissible in individual trials.
Not sure I agree - they are both charged in the RICO conspiracy which encompasses all the conduct, so all the evidence of actions by absent co-conspirators should still be admissible. That said, not being at the same table with Trump and Giuliani undoubtedly would be a plus.
When I was an AUSA doing appeals (I did about 150 of them over the years), I found that one of the things that the court found most helpful (and professional) was when I would try to give the best and most lucid version of the defendant's argument (which his counsel often failed to do) and then answer it. I was wondering if you could do a version of that here. Specifically, as to the Jan 6 indictment from Jack Smith, I've heard some Trump backers say that there's a good First Amendment defense, pointing out that simply contesting election results is not a crime, and that in order to avoid chilling such contests, the courts should bend over backward not to criminalize even pretty aggressive behavior.
I don't know that I buy that argument, but I don't think the courts will treat it as frivolous. Indeed, I think it's about the best Trump has. So I was wondering if you could outline how that argument would look put in its most erudite and appealing form (which Trump's lawyers are unlikely to do), and then detail how Jack Smith should respond.
I do think this is the aspect of the case that's most likely to draw serious attention from judges, so hearing from an expert (like you) is going to improve my education.
Thanks!
It's interesting that you focus on the First Amendment argument. In my view that's the weakest of the different defenses being floated by his team. After all, probably every fraud case involves the defendant speaking to his victims, and every conspiracy involves the co-conspirators speaking to each other. But that speech in furtherance of criminal activity is not protected. The one potentially sticky 1st Amendment issue would have been if Smith indicted Trump for inciting an insurrection based on on his January 6 speech on the ellipse, but Smith wisely chose to sidestep that issue and not charge it. (Recall that charge was part of the referral from Congress.)
Contesting the results is indeed not a crime. As the indictment points out, Trump had a right to speak about it. He also had a right to file legal challenges, and did - more than 60 of them. But when those failed he did not have the right to pursue illegal means to stay in power.
I don't think I could write the post you suggest because I don't think I can come up with a non-frivolous 1st A argument. I see this as a political defense Trump is making ("They're trying to silence me!"), not a legal one.
Thanks for your answer. If you're Trump's lawyer, your view of life is that when your client is a lemon, you do your best to make lemonade. The problem with lemonade is that it can turn out sour. I'm sure each of us squared off against defendants whose arguments made you want to turn away with embarrassment. But when you're a defense lawyer, then, as Hyman Roth said, "This is the life we have chosen."
I understand, but if you were a prosecutor trying Chesebro separately, would you spend most of the trial offering evidence of lies about Dominion and Caesar Chavez, tampering with voting machines, slandering election workers, plotting to send phony DOJ letters, late night White House meetings, etc., etc.? The one-sentence cross of most witnesses would be: did Chesebro have anything to do with that? And the answer would be: Never heard of the guy. Is all that evidence even admissible? There’s no hearsay problem, but is proof of activities of which Chesebro was unaware even relevant to whether HE conspired to conduct the affairs of an enterprise through a pattern of racketeering activity? Does a prosecutor have an inherent right to present evidence of the full scope of the conspiracy a defendant is charged with entering regardless of how much time it takes and how little bearing it has on the defendant’s own guilt? And even if a prosecutor could do that, would it be sensible for her to do it? Wouldn’t cheseboro’s trial tend to become primarily a trial about writing some ridiculous legal memos, and wouldn’t that be very much to his advantage? Can you imagine a joint trial of the two defendants who’ve sought speedy trials so far, Chesebro and Powell? They had a common objective, but there would be very little overlap in the evidence bearing on their activities.
I think the speedy trial moves in Georgia have a lot to do with severing the movants’ cases from those of other defendants, particularly Trump. Consider how much less evidence will be admissible in individual trials.
Not sure I agree - they are both charged in the RICO conspiracy which encompasses all the conduct, so all the evidence of actions by absent co-conspirators should still be admissible. That said, not being at the same table with Trump and Giuliani undoubtedly would be a plus.
I think the