CORRESPONDENCES OF MARC SUSSELMAN PART 3

[In the following email, Marc Susselman makes the observation that philosophers cannot be expert lawyers if not trained as lawyers, and lawyers cannot be expert philosophers if not trained as philosophers. But is this correct? It would definitely be in line with that belief of Plato's that society's ills will not end till philosophers become rulers or rulers become philosophers... However should we accept this as an axiom and continue onwards as if further inquiry is inconceivable? I myself then did something in error too. I took on Immanuel Kant's philosophy as folly in an essay I titled the Anti-Prolegomena which I posted on my website. And if Marc is correct then I couldn't possibly have hit upon any major truths concerning the refutation of Immanuel Kant's philosophy. Because if I did think up major flaws in his thinking, then that would prove the fallacy of Marc's axiom concerning the legal expertise lacking in expert philosophers who lack law degrees. After all Kant falls under the category of expert philosophy, and I only have a bachelor's degree in History. So I have to be wrong. --Michael Llenos Pasteur]


27 August 2023

David,

For an individual who acknowledges he is not a lawyer, and that knowledge of the law is not his area of expertise, you make quite a few statements with the pretense of someone who knows a lot about the law. You do not, and your abbreviated synopsis of Ms. Willis’s indictment shows it.

First, have you even read the Fulton County D.A.’s 97 p. indictment? I suspect not. I have, every page of it.

You refer to the telephone conversation between Trump et al., and Raffensperger, from which you draw conclusions about what was said. Have you read a transcript of the entire conversation? I suspect not. I have, all 23.5 pages of it.

Have you read any of the criminal statutes which Ms. Willis cited in her voluminous indictment? I suspect not. I have. All of them.

I understand that you may plead ignorance as your defense, since you are not an attorney, but you are an academic. Your area of expertise is philosophy. If someone purported to tell you what Kant wrote in his Critique of Pure Reason, or what Descartes had written in his Meditations, or, etc., etc., and what these philosophical writings meant, without having actually read them, you would chastise such an individual for engaging in sloppy and irresponsible scholarship, or lack thereof. Why would you think that the rigors which apply to commentary on philosophy need not apply to the law? So, I am going to chastise you for sloppy and irresponsible scholarship and a pretense of understanding legal issues, when you do not.

Let’s start with your simplistic example of how speech can constitute a predicate criminal act. Your example is superficial and entirely inapposite to the issues raised by Ms. Willis’s indictment. Yes, giving a bank teller a note – which is a form of speech – communicating that this is a robbery and to hand over cash, would constitute a criminal act (“criminal solicitation”), and would not be protected by the 1st Amendment. But the note would not constitute political speech (unless, perhaps, used by Al Pacino in Dog Day Afternoon), among the highest tier of speech protected under the 1st Amendment. When a lobbyist testifies before Congress, and urges passage of a particular form of legislation, in the course of which the lobbyist makes misrepresentations of fact, the fact that the lobbyist is knowingly making such misrepresentations of fact, i.e., is lying, does not make the speech subject to criminal prosecution. As I have written in prior comments (which it appears you have either not read, or not understood), lies in the course of political discourse may not be criminalized. It is protected both by the Free Speech Clause of the First Amendment, as well as the 1st Amendment right to petition the government for the redress of grievances.

In Boos v. Barry, 485 U.S 312 (1988), the Supreme Court held that a D.C. ordinance which prohibited picketing within 500 ft. of a foreign embassy violated the 1st Amendment, stating, “debate on public issues should be uninhibited, robust, and wide-open,” i.e., political speech, regardless its content, is afforded robust protection under the 1st Amendment. In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Court held that application of a Mississippi statute to a boycott by members of the NAACP of white owned businesses in Claiborne, County, Mississippi, which imposed a civil penalty on the boycotters’ conduct, violated their right to seek redress of their grievances under the 1st Amendment. Clearly, if imposing a civil penalty on the exercise of one’s right to seek a redress of grievances violates the Constitution, criminalizing such conduct is a foritori a violation of the 1st Amendment.

Let’s look at the indictment. Ms. Willis’s indictment lists 161 “predicate acts” which she, and her legal staff, claim support her charges that Trump, and his co-conspirators, violated the Georgia RICO law, and other Georgia statutes. Of those 161 purported “predicate acts,” the vast majority of them – at least 145 of them, by my count – constitute unconstitutional efforts by Ms. Willis to criminalize political speech, speech made in an effort to petition various Georgia officials to redress what the speakers perceived as legal grievances. Now, you, Prof. Wolff, John Rapko, J. K. Mulvany, Ph. D., aalll, etc., may believe that their purported grievances are a bunch of lies, and therefore not entitled to any 1st Amendment protection, but they are political/legal grievances nonetheless, entitled to the full protection of the 1st Amendment, unlike a note handed to a bank teller demanding cash – which is not an effort to redress a perceived political grievance, but theft.

Let’s take a look at some of those “predicate acts.”

Act 2 states:

“On or about the 15th day of November 2020, RUDOLPH WILLIAM LOUIS GIULIANI placed a telephone call t unindicted co-conspirator Individual 2, whose identity is known to the Grand Jury, and left an approximately 83-second-long voicemail message for unindicted co-conspirator Individual 2 making statements concerning fraud in the November 3, 2020, election in Fulton County, Georgia. This telephone call was an overt act in furtherance of the conspiracy.”

Giuliani’s telephone call clearly constituted political speech protected under the 1st Amendment. This is true regardless whether you, Prof. Wolff, J.K. Mulvaney, Ph. D., etc., dislike Giuliani, think he is an idiot, or believe that he was lying. An act of political speech, protected under the 1st Amendment, cannot – under any circumstances – constitute a “predicate act” in furtherance of a criminal conspiracy. Period.

Act 20 states:

“On or about the 1st day of December 2020, RUDOLPH WILLIAM LOUIS GIULIANI and JENNAR LYNN ELLIS met with Speaker of the Arizona House of Representatives Rusty Bowers, President of the Arizona Senate Karen Fann, and other Arizona legislators in Phoenix, Arizona. Unindicted co-conspirator Individual 5, whose identity is known to the Grand Jury, was also present. RUDOLPH WILLIAM LOUIS GIULIANI made false statements concerning fraud in the November 3, 2020, presidential election Arizona and solicited, requested, importuned the legislators present to call a special session of the Arizona State Legislature. These were overt acts in furtherance of the conspiracy.”

Allegedly making false statements to solicit, request, importune legislators to call a special session of he Arizona State Legislature constitutes political speech petitioning the government in an effort to redress perceived grievances – even if the perception is false – is absolutely protected under the 1st Amendment and seeking to criminalize such an effort is unconstitutional. Every day constituents of the various Congress men and women go to Washington seeking the help of their legislators to seek to redress the perceived grievances of the constituents. Some of those grievances are phony and fabricated. If Ms. Willis’s allegation about Giuliani and Ellis is correct, then all of those constituents are also subject to being criminally prosecuted.

Act 93 states:

“On or about the 23rd day of December 2020, DONALD JOHN TRUMP placed a telephone call to Office of the Georgia Secretary of State Chief Investigator Frances Watson that had been previously arranged by MARK RANDALL MEADOWS. During the phone call, DONALD JOHN TRUMP falsely stated that he had won the November 3, 2020, presidential election in Georgia ‘by hundreds of thousands of votes” and stated to Watson that “when the right answer comes out you’ll be praised.” This was an overt act in furtherance of the conspiracy.”

This telephone call, whether or not it conveyed false information, constituted political speech absolutely protected under the 1st Amendment. Criminalizing it is unconstitutional.

This pattern of criminalizing expression of political speech and petitioning government officials to redress perceived grievances repeats itself over and over throughout the indictment. None of them constitute criminal “predicate acts”; they are all protected under the 1st Amendment. None of these are instances where we have to wait and see what evidence Willis has. They are, on their face, unconstitutional, regardless what evidence Willis offers to prove them.

And then there are the allegations which claim violations of various criminal statutes which are nothing of the sort. For example, Act 79 states:

“On or about the 14th day of December 2020, DAVID JAMES SHAFER, SHAWN MICAH TRESHER STILL, CATHLEEN ALSTON LATHAM, … committed the felony offense of IMPERSONATING A PUBLIC OFFICER, in violation of O.C.G.A. § 16-10-23, in Fulton County, Georgia, by unlawfully falsely holding themselves out as the duly elected and qualified presidential electors from the State of Geogia, public officers, with intent to mislead the President of the Unted States Senate, the Archivist of the United States, …. by placing in the United States mail to said persons a document titled ‘CERTIIFCATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA.’ This was an act of racketeering activity under O.C.G.A. § 16-14-3(509A)(xxiii) and an overt act in furtherance of the conspiracy.”

Georgia case law uniformly interprets the term “peace officer” to refer to a member of law enforcement, or a public employee. Presidential electors are neither. The alleged criminal act is inapplicable.

Similarly, Act 80 alleges that by virtue of the same conduct, Shafer, Still, and Latham violated O.C.G.A. § 16-9-1(b), which states: “A person commits the offense of forgery in the first degree when with the intent to defraud he or she knowingly makes, alters, or possesses any writing, other than a check, in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.” This provision only applies if the publisher of the document signs the document using a name other than his/her own. But that is not what Shafer, Still or Latham did. They used their own names on the elector certificates. They did not forge the names of others on the certificates. This provision, again, has no application to the conduct in question.

This pattern, like the pattern of charging Trump and his alleged co-conspirators with criminally engaging in political speech and/or petitioning government officials for the redress of perceived grievances, repeats itself over and over throughout the indictment.

Ms. Willis is the Fulton County D.A. As such, she only has jurisdiction over Fulton County, Georgia, which means she can only charge criminal acts which allegedly occurred in Fulton County – not in another Georgia county, nor in another state. Yet, repeatedly throughout the indictment, she charges Trump and his alleged co-conspirators of having committed criminal “predicate acts” in another Georgia county, or in another state. She has absolutely no authority to do so.

For example, in Acts 145-154, the indictment alleges that on January 7-9, 2021, Sidney Powell, Cathleen Latham, Scott Hall and Misty Hampton unlawfully tampered with electronic ballot markers, and Dominion Voting Systems in Coffee County, Georgia. However, there is evidence that these actions were in fact approved by Eric Chaney, who at the time was a member of the Coffee County Board of Elections. Be that as it may, Ms. Willis has absolutely no jurisdiction to charge a crime which allegedly occurred in Coffee County. That is only within the jurisdiction of the D.A. of Coffee County, or the Attorney General of Georgia, to do. Ms. Willis has unlawfully overstepped her authority by charging alleged crimes in jurisdictions where she has no authority.

Ms. Willis repeats this pattern repeatedly through her indictment. In Act 91, the indictment alleges that on Dec. 21, 2020, Sidney Powell sent an e-mail to SullivanStrickler LLC, with which she had a contract (alleged in Act 33), to provide her with data from Dominion Voting Systems equipment located in Michigan. The indictment alleges that this email was “an overt act in furtherance of the conspiracy.’ Ms. Willis has absolutely no jurisdiction in the State of Michigan. Only the Attorney General of Michigan could charge Powell with committing a crime in Michigan.

Turning to the January 2, 2021 telephone call that occurred between Trump, Meadows, Raffensperger and several other Georgia election officials, you state: “At one point in the call Trump is clearly threatening Raffensberger [sic] with criminal prosecution if he does [not] find those needed votes.” This assertion is false. The transcript of the conversation (which is available online) states that this exchange occurred at the point in the conversation you are referring to, Trump stated:

“And you [Raffensperger] are going to find that they are – which is totally illegal, it is more illegal for you than it is for them because, you know what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk. But they are shredding ballots, in my opinion, based on what I’ve heard. And they are removing machinery and they’re moving it as fast as they can, both of which are criminal finds [sic]. And you can’t let it happen and you are letting it happen. You know, I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.”

Trump did not threaten to criminally prosecute Raffensperger. He made a correct statement of law, that if in fact the voting machines were being manipulated, and if Raffensperger knew it was occurring and did nothing to curtail it, his conduct would be criminal. Neither Trump, nor William Barr would have jurisdiction to criminally prosecute Raffensperger for such conduct, were it true. Only the AG of Georgia could do so. This was not a veiled threat to prosecute Raffensperger. It was a correct legal statement that if such conduct were occurring and Raffensperger knew it was occurring and took no action to stop it, his failure to act would constitute a crime. Informing a government official that certain perceived illegal acts are occurring and that their failure to act would be a crime is not a criminal “predicate act” in support of a criminal conspiracy. It is a statement of legal fact, based on the perception that illegal action is occurring within the government official’s purview.

In sum, Ms. Willis’s indictment is a structure built on sand. It is a smorgasboard of alleged criminal acts, all protected by the 1st Amendment, over which Ms. Willis has no constitutional or statutory authority to prosecute. Your lack of knowledge of the law is no excuse for your sloppy research and abdication of critical thinking.

Regarding Act 79, supra, I neglected to include what O.C.G.A. 16-10-23 states: "A person who falsely holds himself out as a peace officer or other public officer or employee with intent to mislead another into believing that he is actually such officer commits the offense of impersonating an officer, and, upon conviction thereof, shall be punished by a fine of not more than $1,000.oo or by imprisonment for not less than one nor more than five years, or both." This statute is commonly known as "impersonating a police officer." Signing a document claiming to be a presidential elector is not impersonating a police officer. It may be impersonating a presidential elector, but this does not equate to impersonating a police officer.

We are talking about the meaning of words here. Philosophers since Plato have indicated that what words mean – whether in Greek, Latin, French, German, or English – is important in determining what the truth is, and in communicating that truth to others. The meanings of words are likewise important in law, particularly in the case of criminal statutes, statutes which are intended to communicate to the public what conduct constitutes a crime. It is particularly important in order to put the public on notice regarding what conduct is considered criminal, and could subject an individual who engages in that conduct to a criminal prosecution, which would have serious consequences for the individual’s life. If a statute states that conduct x is considered criminal, the conduct x must be described with enough specificity and accuracy so that members of the public know to avoid engaging in conduct x. Impersonating a presidential elector, which is what Ms. Wallis is accusing certain alleged co-conspirators of Trump as doing, is not the same as impersonating a police officer, or impersonating a public officer, or impersonating a public employee. Purported presidential electors are none of these. And Ms. Willis is distorting the language of numerous criminal statutes in order to make a name for herself (I assume she has political ambitions beyond being the Fulton County D.A.) by convicting Trump. But it seems to me that academics, and particularly academics whose expertise is in philosophy, a discipline in which the accurate use of language is considered paramount, should be concerned about the disingenuous misuse of language in order to achieve a particular political objective.

How can a presidential elector not be a public officer? The answer to this is two-fold. The main reason is that Georgia courts which have analyzed the application of O.C.G.A. § 16-10-23 have held that the reference to “public officer” is restricted to either individuals involved in law enforcement, or public employees generally. Presidential electors are neither – they are clearly not involved in law enforcement, and they have no employer, not even the state for which they are designated as presidential electors.

The second reason relates to how they are chosen. When Americans vote for a President in November, they do not vote for the presidential electors directly. They vote for a presidential candidate whose name appears on the ballot. The electors for that candidate have been pre-chosen, either by their party, or if not a party member, by the candidate him/herself. The names of the electors do not appear on the ballot. In all of the states, other than Nebraska and Maine, the candidate who wins the popular vote of that state wins all of the pre-chosen electors for that candidate; the loser wins none. In Nebraska and Maine, the presidential electors are split based on the popular vote proportions. The presidential electors are not “public officers” because they hold no public “office.” They have a single, limited role – to go to the state capitol on a designated date to cast their vote for the presidential candidate for whom they have been appointed elector. Some states, but not all, bind the electors to vote for the presidential candidate for whom they have been appointed elector. They do not qualify as public officers in Georgia, or in any other state, because how the courts have defined what constitutes a “public officer” In Georgia, the Georgia S. Ct. defined a public officer in Brown v. Scott, 266 Ga. 44 (Ga. 1995) as follows: “This Court has held that a public officer and employee can be distinguished on the basis of creation, duration and emoluments of office. … The appointment is durable – it is not merely transitory. Cf. McDuffie v. Perkerson, 178 Ga. 230 (1933) (grand juror is not public officer).” A state’s presidential electors are not a public officer for the same reason that a grand juror is not a public officer – it is a transitory position; the individual holds no “office” to speak of. In addition, public officers are paid – they receive a monetary emolument. The presidential electors perform their function on one day, which is not sufficiently durable to qualify them as “public officers.” And they are not paid.

Some may say that this is a technical distinction that constitutes splitting hairs. But the proper use of language – whether it be in philosophy or law – is about splitting hairs. Ms. Willis is deliberately misusing legal language in criminal statutes simply, in my opinion, to advance her career. And academics, particularly those devoted to the discipline of philosophy where the proper and accurate use of language is paramount, should be offended by the disingenuous misuse of the English language for political gain, even if the target of that misuse of language is someone whom many of us despise.


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29 August 2023

David,

I do not know who wrote that letter to the NYT which you refer to. Whoever it is , s/he does not know what the hell s/he is talking about. Citing Global-Tech Appliances, Inc. v. Seb S.A., 563 U.S. 754 (2011), supports the observation that a little knowledge can be a dangerous thing.

The Global-Tech case involved allegations of patent infringement. It was not a criminal case. The “willfull blindness” test would apply in a patent infringement case. It does not apply in a criminal case, in which the prosecution’s burden is to prove that a crime was committed beyond a reasonable doubt. Alleged “willful blindness” does not meet that much higher standard of proof. Indeed, Justice Kennedy, to his credit, dissented, stating that “willful blindness” does not equate to the statutory requirement of actual knowledge. A fortiori, it would not equate to proof beyond a reasonable doubt, required in a criminal case.

Reliance on letters written by non-lawyers (or, alternatively, by ignorant lawyers, of whom there are unfortunately many) does not constitute responsible legal scholarship.

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Michael,

There were additional exchanges between me and David Zimmerman regarding the NYT editorial, which was actually written by Prof. Burt Neuborne, of the NYU Law School. David accused me of ignoring certain language in the Global Tech decision, cited by Neuborne. Notwithstanding Prof. Neuborne’s credentials, I stood my ground.

I have read the Global-Tech decision, including the passage quoted by Prof. Neuborne. What he fails to quote is what J. Scalia wrote after the passage the good professor quoted:

“This Court’s opinion more than a century ago in Spurr v. United States, 174 U.S. 728 … (1899), while not using the term ‘willful blindness,’ endorsed a similar concept. … Later, a 1962 proposed draft of the Model Penal Code, which has since become official, attempted to incorporate the doctrine by defining ‘knowledge of the existence of a particular fact’ to include a situation in which ‘a person is aware of a high probability of [the fact’s] existence, unless he actually believes that it does not exist.’ ….” (Emphasis added; footnote omitted.)

Prof. Neuborne’s quotation omits the critical underscored language, “unless he actually believed that [the fact] does not exist.” As I have asserted numerous times in prior comments, Jack Smith repeatedly states in his indictment that Trump knowingly denied that he had lost the election. Trump has insisted, repeatedly, that he believes that he won the election. Smith cannot prove that he did not/does not believe this unless he has a witness who can testify that Trump unequivocally admitted that he knew he had lost. Nowhere in the indictment does Smith assert that he has such a witness. And other knowledgeable attorneys, e.g., Alan Dershowitz, have pointed this out. And without such a witness, he cannot prove Trump’s guilt beyond a reasonable doubt. And the “willful blindness” test will not apply to prove that Trump did not believe he had not lost.

I therefore stand by what I wrote: Prof. Neubourne’s reliance on the Global-Tech decision in the context of Smith’s indictment is nonsense. You can call me arrogant, but that does not make me wrong. So, no, I will not admit that I am wrong, because I am not; Prof. Neuborne is.

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30 August 2023

A federal judge has just ruled that Giuliani is liable for having defamed Georgia election workers Ruby Freeman and Shaye Moss. This is how the legal system is supposed to work, holding public officers who lie and damage the reputation of others civilly liable, not criminally liable. As I have argued, political speech is protected under the 1st Amendment from criminal prosecution. It is not protected against civil liability. The defamation lawsuit underscores that Ms. Willis’s efforts to criminalize the lies of Giuliani and others is the wrong tactic, and unconstitutional; make them pay those they have defamed. That suffices, and is constitutional.

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Marc,

Can't Trump be found guilty of being wilfully blind on purpose because he was too culpable to investigate his own stubborn motivations? I mean people are being sent to prison all of the time for being too negligent in what they say or do. During the 2016 election Trump was even heard saying:

"I will totally accept 'election results' if I win.'"

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Michael,

Rarely is anyone sent to prison in the U.S. for what they say. An individual can be held in criminal contempt of court for something said in court, but even that is rare. Eugene Debs was prosecuted for a speech he gave during WWI inciting men to resist the draft, but that is rare, and would not recur today. People go to prison for what they do, not for what they say. It is unconstitutional to criminalize speech, even the speech we hate. The legal solution for speech we hate is to try to get an injunction, but even that is hard to get (I know this from personal experience). Defamation can be punished by an award of damages, but it can not, indeed should not, be criminalized.

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Marc,

But were there times in the past where people said something that proved they did something criminally? For example, at the end of the movie A Few Good Men, Jack Nicholson & Tom Cruise go at it yelling:

"Colonel Jessup, did you order the Code Red?!"

"You're darn right I did!!!!"

--An extreme situation to occur that is for sure. But are there lesser extreme cases that happen every so often in criminal trials?

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31 August 2023

Michael,

To answer your response to my comment, Yes, as in the example you offer from the movie “A Few Good Men,” speech can be admissible to prove an admission by the speaker that the speaker engaged in a criminal act. But in such a case the individual is not being prosecuted for his/her speech; the individual is being prosecuted for the criminal action the speech proves the individual engaged in.

This is not what Ms. Willis is doing in her grandiose indictment. She is charging most of the indictees with engaging in the use of speech in order to petition the government for the redress of a perceived grievance in order to persuade government officials to allegedly commit an illegal act, i.e., certify “false” electors as authentic electors. This speech is protected by the 1st Amendment. It is not an admission that the speaker committed a criminal act. Moreover, none of the officials in question acceded to the request – no false electors were actually certified by the government officials who were entreated to do so. Some of the indictees allegedly certified themselves as electors, and in doing so may have committed a criminal act, although the Georgia statutes which Ms. Willis cited in the indictment don’t support this charge.

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Post-script:

What I just wrote requires clarification. There are instances – rare instances – in which the use of speech can be criminal and subject to prosecution. For example, transmitting a message that one intends to harm the President of the United States is, per se, a crime. But none of the communications for which Ms. Willis is prosecuting Trump and his alleged co-conspirators involved threatening violence against anybody.

A decision by the Supreme Court this past term highlights the difference. In Counterman v. Colorado (2023), the defendant had been sending threatening messages on Facebook to a local female singer. The messages put the singer in fear for her safety. She complained to the police, and the State of Colorado prosecuted the perpetrator under a Colorado law which criminalized making repeated communications “in a manner that could cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” The defendant argued that his communications were protected by the 1st Amendment. The State of Colorado disagreed, and he was convicted. The Supreme Court vacated the conviction. J. Kagan wrote the decision for the majority (J.s Sotomayor and Gorsuch concurred only in part; J.’s Thomas and Barrett dissented). In a passage instructive for our purposes, J. Kagan wrote:

“’From 1791 to the present,’ the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas. … These ‘historic and traditional categories’ are ‘long familiar to the bar’ and perhaps, too, the general public. … One is incitement-statements ‘directed [at] producing imminent lawless action,’ and likely to do so. …

“‘True threats’ of violence is another historically unprotected category of communications. … The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow … . True threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’ … The existence of a threat depends not on the ‘mental state of the author,’ but on ‘what the statement conveys’ to the person on the other end. …

“Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect. Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries. A speaker may be unsure about the side of a line on which his speech falls. Or he may worry that the legal system will err, and count speech that is permissible as instead not. … Or he may simply be concerned about the expense of becoming entangled in the legal system. The result is ‘self-censorship’ of speech that could not be proscribed – a ‘cautious and restrictive exercise’ of First Amendment freedoms. … And an important tool to prevent that outcome – to stop people from steering ‘wide[] of the unlawful zone’ – is to condition liability on the State’s showing of a culpable mental state. … “ (Citations omitted.) Because the State of Colorado had failed to prove that the defendant had transmitted his messages with a culpable state of mind, the conviction violated his freedom of speech under the First Amendment and had to be reversed.

J. Kagan’s exegesis on the scope of First Amendment protection demonstrates why any convictions which Ms. Willis may obtain will, ultimately, be reversed. Neither Trump nor any of his alleged co-conspirators have made any threats of violence to anybody. Moreover, criminally prosecuting them for exercising their First Amendment right to petition the government to redress their perceived grievances will chill the right of others – e.g., lobbyists - to exercise their same right. In addition, J. Kagan’s explanation highlights why Jack Smith’s indictment will fail – he cannot prove, unless he has a witness to testify that Trump admitted he had lost the election, what Trump’s state of mind was. In addition, J. Kagan’s reference to speech having the likely effect of inciting lawlessness demonstrates that Smith would have been on firmer ground had he indicted Trump for inciting the Jan. 6 insurrection, which does not require proving Trump’s state of mind. Smith, by indicting Trump for committing crimes he cannot prove, and Willis, by indicting Trump for exercising his rights under the First Amendment, indictments which ultimately are likely to fail, they have succeeded in turning Trump into a martyr, which only enhances his re-election prospects.

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1 September 2023

S. E. Cupp sums it up pretty well:

"CNN News Link..."

George Costanza was correct, both legally and epistemologically: It is not a lie if you believe it, including that unicorns exist somewhere in the universe.

Does Jack Smith have indisputable evidence that Trump admitted that he knew he had lost? Time will tell.

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The End.