Hoping that there is a ruing from the district court this week on Trump’s appeal of the limited restrictions on his ability to attack anyone he pleases related to his legal battles. I mean, what kind of bullshit is it when Trump’s attorneys can say oh all the proof you have of the greatly increased threats that are received when Trump isn’t under the limited-gag-order as compared to when he is limited don’t matter, because those were threats about a different case?
I understand that all the judges and justices who are having to rule on limited restrictions on Trump’s ability to attack prosecutors, their staff, witnesses, etc. They want this to stick; they don’t want it overturned on appeal.
But with a ruling, and then a stay, and then an appeal, and then an administrative stay, and then another appeal, and another administrative stay, and so on – to infinity or to the Supreme Court, whichever comes first – how long before the entire jury pool has been corrupted, and people are afraid to serve?
I get the no one wants to be overturned, but these are not normal times, and at some point there have to be limits on Donald Trump’s ability to say things that result in real threats from his minions. Is there room for common sense in legal rulings? If not, maybe that’s why they say “the law is an ass”?
At some point, and we may already be there, we’re looking at locking the barn door after all of the horses are already out.
I agree with what Marc Elias has to say here, and I’m interested to hear from our BJ peeps and our attorneys, who may or may not have a different opinion from the rest of us.
An absolute masterclass from @marceelias.
Full episode here: https://t.co/K10mRXNDeu pic.twitter.com/46Xc3eUdx4
— Brian Tyler Cohen (@briantylercohen) November 25, 2023
Open thread.
Old School
I saw someone phrase the Trump argument along the lines of “You can’t blame the DJ when the people dance.”
Martin
I suspect the courts are struggling to navigate a unique situation, recognizing that every ruling may set a precedent. So there’s not a lot of well-matched prior law, nor will there be a lot of easy write-ups.
But it’s also the case that the courts aren’t ruling straight on the law, because they don’t think that’s possible and they don’t expect higher courts to do that either. So they’re effectively writing a new set of legal interpretations that only apply to Presidents, which is cowardly bullshit and drives me insane.
bbleh
Even as not-a-lawyer I think it’s complicated. Yes as a presidential candidate he IS being treated differently, and it seems to me there may be a legitimate social interest in according presidential candidates more (although obviously not infinite) leeway in speech, because popular elections are the touchstone of legitimacy in a democracy, which makes tinkering with them dangerous for more than one reason.
And it’s further complicated by the fact that, after decades of practice, TIFG is very good indeed at not quite saying something that is obviously a threat, although it’s clear that (1) it strongly suggests a threat, (2) he has legions of followers who will understand it as his clear wishes (“will no one rid me of this troublesome priest”) and (3) he knows all this perfectly well and is taking full advantage of it.
So contra Elias to some degree, it’s not just a case of a defendant making a threat: there is an additional, competing interest at work, and he personally is not making the threats. OTOH the things that are happening are clearly the consequences of his deliberate actions, which he takes intending that those things should happen; that is, he’s clearly culpable.
That, I think, is the tricky balance the courts have to strike. And I would suspect there is not a lot of precedent for balancing those interests, given that we’ve never had so obviously lawless a presidential candidate.
narya
Some folks I listen to would say that the kid in Elias’s example should be treated the same as TIFG, not the other way around. It’s very tricky, and not just because TIFG is running for office.
Wapiti
@narya: :nods: And until that happens, we should treat Trump the same as all other defendants.
Trump and his like were happy to call for the execution of the Central Park Five
after those young men of color were exonerated. (edited to correct – he didn’t back off his stance, but didn’t re-state demand for execution)Cheez Whiz
Fascinating to see people realize how our legal system has always worked. None of this is new or novel, it’s that we’re all being forced to pay attention to it, and there’s a clock ticking down for extra drama. Insert quote from A Man For All Seasons about chopping down a forest of laws to get at The Devil here.
Omnes Omnibus
It doesn’t really matter what anyone says anymore. Those of you who have decided that it is going too slowly and the normal rules don’t/shouldn’t apply are unlikely to be persuaded otherwise at this point.
ArchTeryx
Our system is simply not equipped to deal with fascists in high places. It’s designed to mollycoddle them. At attempt is being made to NOT mollycoddle TFG but it’s very hard. He’s stacked the deck pretty thoroughly, right up to the Supreme Court, and what he didn’t do our antimajoritarian system of government does for him.
MomSense
@Omnes Omnibus:
Are these normal rules though? Granted I was only a paralegal for a relatively short period of time, but I cannot think of any cases we handled where a Defendant was allowed this kind of behavior.
Hoodie
@Martin: They’re overthinking it. Throw him in the graybar hotel for a weekend, tell him he’s getting out on Monday. Solitary confinement with his Secret Service detail in an adjacent area (that will piss them off for wrecking their weekend, which is good). If he does it again, rinse and repeat. I’m not sure if that order would be appealable, but I wouldn’t be surprised if most appellate judges wouldn’t want to touch it on at least the first round, especially for a two-day stay. If some asshat does want to take it up and let him off the hook, that just reinforces that he’s getting special treatment. Sure, he will whine about his 1st amendment rights and it may make him a martyr to his homies, but they’re a lost cause anyway. Most folks will say “sounds fair, he needs to tone it down.”
WaterGirl
@Omnes Omnibus: Do you think the normal rules are applying there? Because I don’t think your regular, average defendant would get away with the stuff Trump has been getting away with.
I am very interested to know what you think on both of those points
I think they are not doing a great job of balancing between the rights of a former president, and the right of the people to get a fair trial.
edit: Also, there is a difference between believing that we are risking a fear trial by all the delays related to this particular point of law – on whether we are risking a fair trial because of all these delays relative to the “not totally a gag order gag order” – is a whole different thing than complaining about the pace of all the investigations into Trump.
NoOneOfConsequence
No court has ever found an appropriately precise gag order to be a violation of free speech. While I can understand making some allowances for Trump’s situation in a civil trial, there’s a big piece of me that hopes he gets slapped upside the head with “Mister, you’re a criminal defendant, under control of the courts, just like any other piece of criminal filth – or, innocent victim of circumstance. Your lawyer said we don’t need to incarcerate you, because you’ll follow the rules. Are you saying we need to incarcerate you? Because the bailiff is right over there, please surrender yourself if we need to incarcerate you. Otherwise, I want to hear you say that you swear before the court, you’ll follow the rules. That’s what you’ll find in this courtroom: LAW AND ORDER!”
narya
@Omnes Omnibus: It does matter to me–part of the reason I listen to a variety of lawyers on podcasts is that I’m triangulating, trying to get a sense of the nuances, and there are many in this case. Most agree that TIFG running for office means very little; else, anyone could declare themselves a candidate and claim the privileges of being one. Most also agree that court staff, witnesses, and juries should be protected. But after that, 1A protects a whole lot of speech; not “true threats,” but determining what, exactly, constitutes a “true threat” is difficult at best. The one area where his candidacy is relevant is that any curtailment of his speech is an opportunity for more grandstanding. And I can’t help but think about how any ruling against him could be weaponized if he or his ilk are in power. So, honestly, IMHO, take all the time needed to be careful, while doing what can be done to protect people.
MattF
I think the lack of any precedent is stopping the legal processes, or at least slowing them down. Also, TFG knows his fans well enough to understand that they present a real threat and isn’t going to be shy about using that threat.
Martin
@Hoodie: I think some of the judges are making the salient point that Trump doesn’t have any more right to run for president than he has a right to attend a Taylor Swift concert. His ability to campaign does not need to be protected any harder than any other person. But we have this money=speech mentality that politicians have some super-constitutional right to broadcast whatever the fuck they want to the country, and it’s bullshit. Trump can campaign from prison with all the actual constraints on his speech that come from that, not being able to attend rallies, attend debates, and so on. Those aren’t protected, nor is his narrow speech in relation to these trials.
Martin
@MattF: But the thing is there *is* precedent. There is a shitload of precedent. What there isn’t is special precedent that applies to a former president, and the treatment of a presidential candidate as a special entity apart from the rest of us scrubs.
They’re literally writing a special class of precedents that only apply to certain entitled people, and that’s not how this is supposed to work. And many of the courts do seem to be aware they are doing that, but they also seem powerless to not do that.
smith
We have an interesting case for testing if TFG is to be treated as any other defendant in GA, where his co-defendant Harrison Floyd’s bail conditions have just been considerably tightened up because of his threatening online speech. As I recall, he didn’t make explicit threats, but made quite disparaging remarks and did repost and like other peoples’ threats, as I believe TFG has done himself. Floyd is now pretty much prohibited from even breathing in the direction of other co-defendants, witnesses and court personnel, either online or off. TFG is a co-defendant in the same case — if the same restrictions are not applied to him, can we conclude he is a special case, whether because he’s a former president, a candidate, or a rich white man?
Miss Bianca
@NoOneOfConsequence: I have to admit, I am getting to the point of “JUST THROW THE FUCKER IN JAIL FOR A COUPLE DAYS and then tell him there’s more of that coming if he can’t keep his fucking mouth shut JUST LIKE ANY OTHER DEFENDANT IN A CRIMINAL CASE.”
Alison Rose
@Miss Bianca: Your ideas are intriguing to me and I wish to subscribe to your newsletter.
But seriously, yeah. Throw the fucker in the clink. I know it would just make him more of a martyr and hero to his minions, but still. Maybe someone in there would give him a little slicey-slice on his throat, not enough to kill him but just enough to render him permanently mute.
WaterGirl
@smith:
So much privilege, it’s hard to choose between them!
WaterGirl
@Miss Bianca: Some of the attorneys like Harry Litman think maybe Trump does want to get thrown in jail for a couple of days because it will play up his status as a martyr.
I admit that’s possible, but i feel absolutely that even if he wants that to happen, it would be a case of “be careful what you wish for” because he would get a rude awakening. As I understand it, the GA jail / prison is far more awful than average.
elliottg
Not every right is litigated to death. Other rights are just fact-based. Additionally, most attorneys would be leery of p*ssing off the judge for no good reason. In this case, you have a defendant who will litigate everything to death, a unique set of facts, and attorneys that are ready to face sanctions up to and including disbarment.
Albatrossity
My problem with affording expansive free speech rights to DJT is that he would never do that if he was in power. Yes, we should be better than him, but at some point my tolerance for the intolerant runs out.
smith
As I’ve been watching this play out, I’ve been getting the unsettling feeling that we’re seeing a rerun of what happened earlier this century, when the right wing noise machine organized to shut down critical reporting of Republican shenanigans by the MSM. Anybody remember “working the refs”? It established the situation we’re still in, where the corporate media approaches any GQP outrage sideways and in a crouch, still in fear of the storms of outrage that straight up reporting inevitably provokes. Have our courts now assumed the same crouch?
eclare
@Albatrossity:
Exactly.
Yutsano
It’s simpler than that. No one wants to jail him or totally gag him because judges have families too. They don’t want his minions descending on them and making their lives hell. So no one wants to be the first.
Old School
Rosalynn Carter’s memorial service can be watched here
Here’s the C-SPAN version.
randy khan
Courts only rarely move quickly, for a variety of reasons. And as far as I can tell, the courts are moving pretty quickly on this by their own standards, particularly considering the essentially unique situation of a viable Presidential candidate (oh, how it hurt to type those words) inciting his followers to violence against chosen targets. That’s worth keeping in mind here.
smith
If that’s true, to repeat a phrase I heard somewhere before, then the terrorists have won. If we can’t enforce the law because we’re afraid of TFG’s flying monkeys, then we might as well name him President for Life now and get it over with.
I’d also add, that that argument ignores the large number of people already risking those kinds of consequences — Judges Engoron and Chutkan, Engoron’s law clerk, Jack Smith and Fani Willis and their staffs, all are facing those exact threats every day. If the rest of the judicial system won’t back them up, where are we on the rule of law?
eclare
@Old School:
I watched, it was beautiful.
Old School
@eclare: Yes. C-SPAN told me I had missed an hour when I found it streaming, but the part I saw was quite nicely done.
Paul in KY
@Alison Rose: I’m with the throw his ass in jail for a weekend (to start) camp!
trollhattan
@WaterGirl: Anything’s possible within Trump’s…uh…worldview and his continual “I’m being treated so unfairly” mewling is peak on-brand Trump.
And none of that deserves a second thought as to whether to REALLY enforce a gag order with jail time. He won’t have his damn phone in jail, just for starters.
Paul in KY
@Yutsano: Sad, in a way. I can’t imagine Justice Holmes or Justice Brandeis or some other legal titan of yore giving a damn about that. Guess these judges are made of weaker stuff (which is somewhat understandable. Hard to get to ‘titan’ status. Have to walk the walk, etc.).
Bill Arnold
@Yutsano:
It’s cowardice, to be frank. Cowardly prosecutors are what kept D.J. Trump out of NY State legal trouble for decades, IMO.
Also, the legal system is incapable of handling stochastic terrorism and similar methods of intimidation; it is too difficult to prove causality beyond a reasonable doubt, even when it is easy to show statistically significant patterns of behavior and e.g. Granger causality (where cause precedes effect, temporally). Such evidence would be considered convincing in science, but not in law.
JWR
@Martin:
Back on the 17th, (yes, I save certain comments for this sort of reference), piratedan put it this way:
It isn’t hard to imagine the repercussions from the lizard brained MAGA faithful had she ruled that he be taken off the ballot. The judge’s entire family would have to be put in the Witness Protection Program.
Baud
Betty and TaMara bigfooted each other, it seems.
beckya57
@elliottg: I think this sums up the problem well.
Baud
@Baud:
TaMara won.
Ruckus
@Martin:
This. Absofuckinglutely this.
He is a citizen, with all the same rights and privileges as the rest of us citizens. And the same limits. He is NOT the president and being an EX president does not give him any more leeway inside the law. If the court needs to limit his speech or freedom because he is not acting in a manner that the court requires for ANYONE ELSE IN HIS POSITION then there should be absolutely no restriction on the court for doing so. He has the same rights and privilege as any citizen – no more, no less. And if he can’t keep his fat mouth shut and the court requires that, he should be held in contempt and jailed. This country is not living up to it’s basic premises if he gets to be special, because he is a CITIZEN and at this point absolutely nothing more.
Old School
@Baud:
Long live TaMara!
dp
IAAL, and Marc is absolutely correct.
JaySinWA
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
It does however make inequitable exceptions for disrespecting the court.
Villago Delenda Est
@Albatrossity:
He should be gagged. Permanently.
Villago Delenda Est
@JaySinWA: Anatole France.
Ruckus
@dp:
IANAL and I agree with you, Marc Elias is absolutely correct.
SFB is NOT above the law nor should he be treated any different than any other legal defendant. Seems to me that doing so is actually against the constitution and what this country is supposed to stand for. Because one of those things is EQUALITY under the law. That doesn’t mean we should treat others worse or better because of the size of their wallets, or their past, but we often do. And that is wrong.
cain
@Miss Bianca: We need to stop being afraid of the right wing noise machine. Everyone should fear american anger instead. All of us.
Biden should fund FBI terrorism taskforce and start going after these people – let’s see how they like federal indictments.
TriassicSands
@Martin:
It’s not just cowardly bullshit, it is dangerous bullshit and until this country comes to grips with the inadequacy of the Constitution the threat to democracy and the rule of law will continue until Trump and the GOP disappear. The former could happen any time (stroke, heart attack, or dying of a circulatory system filled with bile), but the latter won’t happen until the American electorate improves dramatically — in other words, never.
pajaro
The First Amendment allows a Presidential candidate to bliovate on all manner of topics and, putting libel aside, to say things that are untrue. It does not allow a criminal defendant to threaten potential witnesses, attorneys, or court staff. TFG needs to shut up about his case–he can talk about anything else.
BTW, it’s not just First Amendment rights that are modified in the context of a criminal prosecution. Each one of us has a 14th Amendment right to liberty, but there are circumstances where a pretrial defendant can be deprived of that–if they won’t show up or if they are a danger to the community. A criminal defendant can be barred from having weapons, even if they aren’t in jail. 4th Amendment rights can be taken away.
Right now, Trump is being allowed to make the lives of anyone in the legal system or those who, because they are witnesses or jurors are drawn into to it, to be an absolute misery and to cause them to have to live in fear. It’s time for judges to take seriously the safety and security of those drawn into the system, to tell TFG to stop, and to sanction him if he disobeys.
Goku (aka Amerikan Baka)
@TriassicSands:
I’m pretty sure people prior to a year ago couldn’t imagine the current Dobbs-induced backlash happening
WaterGirl
@pajaro:
Amen. To every word you wrote.
Omnes Omnibus
This take is closer to mine than most of the others I have seen.
Ruckus
@Omnes Omnibus:
I agree.
I see that Tom’s take is looking at the person and the law as (in this case) mutual enemies. SFB seems to think, such as it is, that having BEEN president, he is entitled to 100% protection from his own mouth and actions. At some point this is going to have to be discussed with him in a court situation, in one manner or another. As in he either shuts the hell up or he screws himself right into the ground. I’m expecting selection B, that his loud, ignorant, arrogant mouth is going to get him into an unrecoverable tail spin right into a jail cell for at least some of his 90+ charges. And if that happens, I’m seeing a house arrest or possibly new sleeping arrangements in his future, or a stainless steel gag. Possibly a stainless steel ball gag. He seems to have zero concept of respect for the law, which I’d bet he got from being president. If he even ever had any respect for it.
I just hope it doesn’t go at all well for him.