Republican senators had an advantage over the Titanic command – the attack on the Capitol occurred in broad daylight and was captured on video by hundreds of gleeful participants. The attack, we now know, was planned by some participants in advance. The mob was summoned to Washington by Donald Trump, then the president of the United States, and directed to walk to the Capitol to stop the counting of Electoral College votes that would, at long last, end any hope Trump had of retaining power. It all happened in public view – Trump’s call to action, hours of hand-to-hand fighting with police, the mob hunting for members of Congress (particularly for Speaker Pelosi and Vice President Pence—“Hang Mike Pence,” they yelled) and ransacking the hallowed ground of American democracy. Calls for help went unanswered.
The desecration did not end on January 6. After reviewing the undeniable evidence, only seven Republican senators (Burr, Cassidy, Collins, Murkowski, Romney, Sasse and Toomey) had the courage, moral conviction, instinct for survival, call it what you will, to vote to convict Trump of the incitement to violence the entire world had witnessed. The other Republicans were fine with what happened, so much so that many of them literally ignored the proceedings in the Senate trial.
The media reported that Trump was “acquitted,” and while it’s a fine point, this was not an acquittal but just a failure to reach a super-majority for “guilty.” The total vote for “guilty” was 57, well past a simple majority and a historic first. In substance, Trump was found “guilty but not guilty.” In a supreme irony, the failure to achieve a two-thirds majority spared Trump by virtue of the very Constitution that he spat upon throughout his presidency.
Before the vote occurred, I was penning a blog post entitled “Senator Ted Cruz – Sophist in Wonderland,” addressing an op-ed Cruz wrote for, who else, Fox News. https://fxn.ws/2ZfvsQ0 The op-ed is remarkable for many reasons, but what stood out for me was the surprising conclusion that the Senate did indeed have jurisdiction to conduct a trial of a former president for in-office conduct. That conclusion, however, is followed by ““I believe the Senate should decline to exercise jurisdiction-and so I voted to dismiss this impeachment on jurisdictional grounds.” [boldface & italics mine] Thus, Cruz would have you believe that the Senate had jurisdiction but also did not have jurisdiction.
This style of reasoning is typical of the Republicans who have accepted Donald Trump as their liege lord. In their eyes, he can do no wrong. In the rare case where they admit he was wrong about something, they still support him. Absolute in their views about many things, so-called Republican “conservatives” apply total relativism for Trump’s conduct – relative to Satan himself. (Trump’s not so bad compared to the Beast himself, so what’s the problem?) Trump’s hallucinatory view of reality as totally malleable – essentially, “it is what I say it is” – is the Alice in Wonderland world the Republican Party has adopted as its operative principle. Beyond that, it has no principles. Power is all.
That much has been clear for the entirety of Trump’s presidency, at the very least since KellyAnne Conway uttered the infamous line about “alternative facts” two days after Trump’s inauguration. The January 6 insurrection that, reduced to its essence, was an attempt to overthrow the government by a sitting president, at least provided clarity about where the Republican Party stands.
Senators like Rand Paul can still appear on television and with a straight face argue that there are “two sides to everything.” But only someone with no moral foundation would say that. Even a craven individual like Mitch McConnell has admitted there is no evidence that the election was stolen from Trump. But, like Cruz, McConnell, moments after voting against the Senate majority, agreed that Trump had incited the violence for which McConnell had just voted he could not be held accountable. In Trumpland, reality really is whatever Trump says it is.
Now comes former Professor Alan Dershowitz in Newsweek, to offer cover for Republicans looking for a seemingly intellectually plausible basis to argue that Trump’s “incitement” was really protected speech under the First Amendment. https://bit.ly/3pnLWzY [Disclosure: Dershowitz taught my 1L criminal law class at Harvard]
Dershowitz argues there is no difference between what Trump did and the actions of Representative Jamie Raskin’s father (Marcus Raskin) and others who, in the 1960’s, encouraged young men to resist the draft and endorsed “the burning of draft cards, break-ins at draft boards and other unlawful actions to obstruct the war effort.” According to Dershowitz,
the defense was that the First Amendment protected Marcus’ advocacy of resistance to the draft, even if such resistance then took a form of unlawful actions by others….The jury acquitted Marcus, and the court of appeals reversed the convictions of the other defendants. They were all saved by a broad reading of the First Amendment.
While it’s remotely possible that my limited access to research has failed to find some relevant authorities, I am at loss to understand what Dershowitz is saying. The Court of Appeals case he refers to must be United States v Spock, 416 F.2d 165 (1st Cir. 1969). This was the appeal from the trial that acquitted Marcus of conspiracy but found the other four members of the “Spock Five” guilty. Contrary to the implication of Dershowitz’s description, the Court of Appeals in Spock did not reverse the convictions of the other four due to a “broad reading of the First Amendment.”
A couple of quotes from the opinion suffice to frame what was really going on:
The defendants here are not charged … with expressions of sympathy and moral support, but with conspiring to counsel, aid and abet Selective Service registrants to disobey various duties imposed by the Selective Service Act….
What we do determine is that the First Amendment does not, per se, require acquittal.
The central question addressed by the opinion was,
Whether … the evidence was sufficient to take the defendants to the jury.
There was, of course, an obvious and complex relationship between the First Amendment protections of speech and the adequacy of the evidence of illegal intent. The Court’s opinion expressly recognized the problem, but it also set out three different ways in which a speaker critical of the government could be found to have unlawfully conspired to violate the law, notwithstanding the First Amendment: (1) prior or subsequent “unambiguous statements;” (2) “subsequent commission of the very illegal act contemplated by the agreement;” or (3) “subsequent legal act if that act is ‘clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.”
The opinion, moreover, did not discuss Marcus Raskin at all because he was acquitted at trial. There is no way to know what the basis for a jury’s decision is, so Dershowitz cannot plausibly claim that Raskin was saved by a “broad reading of the First Amendment.”
The Court of Appeals did reverse the guilty findings of the other four defendants, as Dershowitz said. The Court reversed the trial court’s guilty finding for Spock because the evidence against him did not establish the “necessary intent to adhere to its [the charged conspiracy’s] illegal aspects.” Further, “Spock’s actions lacked the clear character necessary to imply specific intent under the First Amendment standard.”
While it’s certainly true that the Court was applying the principle of strictest interpretation of law required by the First Amendment, as to which there was nothing surprising given the history of decisions regarding controversial speech, the actual decision as to Spock was based on evidentiary failures.
As to defendant Michael Ferber, at the time a draft-age student, the Court said,
the evidence did not warrant a finding that through other statements or conduct he joined the larger conspiracy for which the other defendants were prosecuted.
Rev. Coffin and Andrew Goodman had a different outcome entirely, but it was determined not by the First Amendment but by what the Court of Appeals determined, rather easily, was a fundamental error by the trial judge in posing questions to the jury designed to elicit “specific findings” of separate elements of the crimes charged, if they had reached a guilty verdict. That approach, condemned rather universally by precedent, ran afoul of the independence accorded to juries under American law. Juries, in other words, are free in criminal cases to do what they will; the Court of Appeals wrote:
To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case…
Uppermost … is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic…. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly….
Here, whereas, as we have pointed out, some defendants could be found to have exceeded the bounds of free speech, the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied.
The Court thus reversed the trial court as to Coffin and Goodman and ordered new trials, leaving open the possibility that a properly instructed jury could convict them.
Thereafter, the government dropped the charges, ending the case.
Undeterred by those realities, Dershowitz goes on to expand his view of Trump’s innocence with this:
Several years later, Marcus [Raskin] was once again protected by a broad reading of the First Amendment, when he served as an intermediary between Daniel Ellsberg, who unlawfully stole the Pentagon Papers, and The New York Times, which published them despite their being classified. But for the First Amendment, Marcus would have been charged with conspiracy to publish classified material.
Unlike Dershowitz, I don’t claim to know what would have happened if there had been no First Amendment precedents, but I do know that the referenced case, New York Times Co. v. United States, 403 U.S. 713 (1971), involved the government’s attempt to stop publication of stolen classified documents. It dealt with “prior restraint” of the press and is remotely, if at all, relevant to the fate of Marcus Raskin.
Dershowitz then engages in a clever application of “whataboutism,” not to mention historical speculation and revisionism:
If Jamie Raskin’s current view of the First Amendment had prevailed back in the day, his father would likely have been convicted of two felonies. If President Trump incited his followers to commit unlawful conduct, so did Marcus.
In an all-too-familiar trope, Dershowitz goes on with this:
I would have thought that Jamie Raskin—in light of his history as a constitutional law professor, his family history under the First Amendment and his own protests against the 2016 election—would be leading the charge to protect the First Amendment. But no! He is leading the charge to compromise President Trump’s free speech rights—and thus the rights of all Americans to express controversial, even wrongheaded and provocative, views.
The English translation is “I thought someone as smart as you would not hold such crazy and disreputable views.” I really hate to see that, perhaps because it’s been used against me by people holding Trump-ish views. If someone disagrees about something, explain yourself, but don’t do the “how could someone as smart as you be so dumb” routine, especially following an incomplete, and arguably inaccurate recital of historical facts about which the author should know better (he claims to have been involved in the defense of the Spock case).
Returning to what Dershowitz labels as the desire of various people and groups to create a “Trump exception” to the First Amendment, Trump’s speech on January 6 does not stand alone. Indeed, in the Spock case, the Court of Appeals addressed in some detail not only the words spoken but other conduct that indicated participation (or not) in the charged conspiracy.
Trump actively invited his supporters to come to Washington on January 6 to “stop the steal,” a false claim that the election had been stolen from him. His public statements, through Twitter and otherwise, painted a false picture of what had happened. More than 60 court cases had heard his claims and rejected them. Some of his staunchest allies, including the Republican Majority Leader and his former Attorney General, had publicly acknowledged that the claim of stolen election was false.
Trump could say what he wanted, but there is no plausibility to the argument that he actually believed what he was saying to the mob. He lied repeatedly to them. Why? The only plausible reason was to stir them up, to play upon their anger and fear. He was supported in this by his attorney (who called for “trial by combat,” a statement Trump did not reject), and his sons addressing the mob that assembled at the “rally” in Washington.
It should be obvious, but speaking at a Trump rally is not like karaoke night at a bar where anyone who wants to perform can take the mic. Trump approved everything. He explicitly stated that the mob was going to walk down to the Capitol and that he would be with them, a crucially important element in the incitement component of the speech. That is a fact that his Republican supplicants would like to overlook but Trump’s assurance that he would accompany the mob to the Capitol is conclusive of his intent to direct them. Even before he finished talking, a large contingent of supporters headed for the Capitol Building, apparently led by the Proud Boys. Trump continued egging on the others who soon followed.
Thus, Trump’s call for action went well beyond merely voicing objection to government action. He explicitly directed the mob to go to the Capitol, leading them to believe he would be going with them. That Trump lied about going with them is irrelevant to the question whether his speech was simply a complaint about the government or a specific incitement to specific violent action that was foreseeable because it was called for by his choice of words, his continuing to lie about the election and by his subsequent failure to take action to resist the assault on the Capitol.
Indeed, the fact that no steps were taken by the Secret Service to move Trump to a secure location in the face of a brutal physical attack by thousands on the Capitol that lasted for several hours of hand-to-hand combat is itself strong evidence that Trump had directed the attack and intended for it to occur. He was perfectly content to sit back and watch his handiwork play out. Statements from White House sources, not credibly rebutted by evidence of contrary action, indicate that Trump was pleased with the violence and could not understand why others on White House staff were not equally moved by it.
A finding in those circumstances that Trump incited the attack on the Capitol does not create a “Trump exception” to the First Amendment. Dershowitz flatly states that the First Amendment recognizes no exception for actions by the president, but his assertion begs the question. Trump took an oath to defend the Constitution.
Dershowitz’s argument that Trump could not violate the law because he was “protesting the actions of other branches of government” also fails to address the key issue: was the “protest” an active incitement to violence that the president sought to inspire and that he effectively directed to occur? Was he merely complaining out loud about what he thought, however absurdly, was a bad election? Or, was he effectively leading (from behind, but still leading) a physical attack to stop a constitutionally-mandated action from sealing his electoral fate?
In World War II, General Eisenhower did not physically assault the beaches at Normandy, but he was Supreme Commander of the Allied Expeditionary Forces. No person of reason would say that Eisenhower did not lead and direct the attack. Dershowitz’s categorical claim that Trump’s words were protected by the First Amendment would, if true, immunize any person, including a president, from organizing and directing from a distance a violent attempt to overthrow the government and capture or retain power. Whatever the First Amendment means, it doesn’t mean that. If it did, the framers would have created the seed from which the defeat of the democratic republic they risked so much to create could be easily destroyed. Dershowitz’s snarky attack on Jamie Raskin aside, that facile exercise in “whataboutism” is simply implausible.
Returning then to the metaphor I used at the outset of this post, if the democratic republic we know as the United States is going to survive, and we know that democracy is rare in world politics, the Republican Party must now face a reckoning unlike anything in its history. If the republic is fortunate, the GOP has doomed itself by aligning with a wannabe-dictator. An overwhelming majority of Americans who believe in the principle of rule by the people through a neutral system of laws will emerge from the horrors of January 6 with a stronger commitment to assure that such outrages are not repeated.
An agenda to achieve that end should include strong criminal prosecutions not only of the perpetrators of violence at the Capitol but of the leader. The spinelessness of the Republican senators who voted “not guilty” in the second impeachment should motivate true patriots to demand complete justice accomplished through the justice system without political involvement.
In addition to the offenses arising from January 6, we must not forget that the Mueller Report documented no fewer than ten instances of blatant obstruction of justice by Donald Trump. Those cases must be prosecuted so that no future president thinks he or she can follow Trump’s approach to governance with impunity. Don’t forget that Trump claimed Article II of the Constitution authorized him to “do whatever I want.”
As part of that process, but separate from it, the Department of Justice should reconsider its policy position that a sitting president cannot be indicted while in office. The “Republican gap” – you can’t indict while in office and you can’t try impeachments after leaving — must be closed definitively.
The federal government also needs to re-examine the states’ voter suppression tactics, which are rampant in the wake of the 2020 election. While I remain profoundly suspicious that Republican-dominated state governments will give good-faith and fair consideration to voter -expanding processes, a brief attempt should be made to find mutually-acceptable policies, to be ingrained in federal and state laws, that will put a permanent stop to the meddling that occurred in 2020 and long before. Nothing is more important to the survival of democracy than assuring that the will of the people is effectuated through elections at every level of government. The Biden administration should add this to its long list of priorities.
Finally, Americans who are committed to the continuation of government of, by and for the people must wake up, sign up, get informed and vote in every election. Failure to attend to the democratic opportunity will result in its being eliminated. We saw this in 2016 and almost again in 2020.
As for the Republican Titanic Party, Americans who believe in the principles once held by the GOP now must find a new political home. The GOP has been taken over by conspiracy theorists and violent extremists. They believe America can survive as an independent country even as it returns to an imaginary yesteryear in which a huge percentage of the population is treated like property, the country’s best opportunities are reserved for white people and we ignore issues like climate change and the need for international relationships based on shared interest and peace. They often espouse principles that would destroy the separation of church and state, a bedrock element of American freedom and independence.
Those Americans who, for better or worse, still genuinely believe that a country in the 21st century can prosper only with smaller government, less regulation of virulent capitalism and the other central tenets of traditional conservative values must find a new political home. If they choose to remain with the GOP, they are going to be swamped by Trumpers who have captured the machinery of its state parties (witness the multiple censures of Republicans who dared go against Trump during the election and after the January 6 attack). The old GOP is a dead duck, a backward-looking myth-based hallucination. Donald Trump, Jr. said it straight out on January 6: the GOP is now Trump’s party.
I hope that genuine conservatives will reconsider whether a modern 21st century country can prosper, or even survive, if it relies on Trump’s values. I hope they will join the Democratic Party in a future that accepts reality and welcomes change (which is inevitable), is inclusive (more interesting people in a diverse population) and works extra hard to ensure that its children are raised as independent thinkers (not replicas of their parents) who are more prepared to face the daunting challenges of 21st century life, open to new experiences, new people and hope. If those people come over, the old GOP will lose a huge element of its power and become a marginalized collection of white supremacists, misogynists and extremists with little to no influence on American political life going forward.