(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Jonathan Turley says the Trump prosecution is worse for America than an attempted coup [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-08-04 "Will no one rid me of this turbulent priest?" — Henry II Jonathan Turley, in an opinion piece for USA Today, joins the conservatives desperately determined to distract from Trump’s attempted coup d’etat with a piece of legal fantasy. In his piece, “Indicting Trump for 'knowingly false statements' about election sets US on dangerous path. ” Turley argues that “Prosecutors will seek to criminalize false political claims. To bag Trump, they will have to bulldoze through the First Amendment and a line of Supreme Court cases.” The Trump apologists were sure Special Prosecutor, Jack Smith, would indict Trump for incitement. To blunt that anticipated charge, they planned a First Amendment defense. They would paint Trump as an aggrieved citizen who had done no worse than Hillary and all the other Democrats who had ever said anything negative about any election. When the unsealed indictment revealed that none of the four charges were related to Trump’s infamous Capitol insurrection speech, these antagonists decided not to waste their argument — no matter that it was irrelevant. Many stuck with the script, confident that the MAGAs were uninterested in nuance. However, Turley decided that he would try and pound a square peg into a round hole. And to do so, he maintained that the Trump indictment was nothing more than a death threat to the foundational right of free speech. Let us have a look at his argument. He starts his misdirection with a straw man fallacy. “Smith and his team have made history in the worst way by attempting to fully criminalize disinformation by seeking the incarceration for a politician on false claims made during and after an election .” Smith did not charge Trump simply because of what he said. But because he knowingly maintained a false position that directed his subordinates, implicitly and explicitly, in a conspiracy to defraud the United States (count 1). And because he attempted with the same co-conspirators to "oppress, threaten and intimidate" people in their right to vote in an election in a conspiracy against rights (count 4). Those two counts do rest on what Trump said. But not all speech is protected. Oliver Wendell Holmes wrote in Schenck vs. US (1918) decision, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” There is a difference between a customer saying, “You have a nice business here, I wish you all success” and a mobster saying, “You have a nice business here. It would be a shame if something happened to it.” The other two counts, conspiracy to obstruct an official proceeding (count 2) and obstruction of and attempt to obstruct an official proceeding (count 3) are based on Trump and his co-conspirators’ actions and strong-arm tactics. To say that it impinges on free speech rights would make fraud and similar crimes unprosecutable, as most human interactions involve talking. Imagine I held a gun to someone's head and said, “Give me your money." If my attorney argued that the First Amendment protected me, they would be laughed out of court. However, this does not stop Turley from trying. "The hatred for Trump is so all-encompassing that legal experts on the political left have ignored the chilling implications of this indictment. This complaint is based largely on statements that are protected under the First Amendment. It would eviscerate free speech and could allow the government to arrest those who are accused of spreading disinformation in elections." Next, Turley offers some more misdirection by citing a SCOTUS case. “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. The Court warned such criminalization "would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom." Turley does not mention two things. One that Alvarez was a liar, but he was not trying to overturn the result of an election. Two, he omits that the three dissenting votes in this case — in effect, they argued that the law should punish Alvarez for his speech — were Thomas, Scalia, and Alito . It takes chutzpah to say it is liberals who “ignored the chilling implications of this indictment” when it was the Court’s arch-conservatives who did what Turley is complaining about. That is enough to prove Turley is just making things up. But let us go on. He next refers to a previous conviction by Smith that SCOTUS overturned. "This indictment is reminiscent of the case against former Virginia Gov. Bob McDonnell. His conviction on 11 corruption-related counts was unanimously overturned by the Supreme Court in 2016, with Chief Justice John Roberts writing that federal prosecutors relied on a "boundless" definition of actions that could trigger criminal charges against political leaders." What this case has to with Trump is anyone’s guess. McDonnell was charged with bribery — not trying to fix an election. Turley is trotting this irrelevant case out because it sounds good, and he is confident the base will not question him. The other salient point is that the Supreme Court acted to right what it saw as wrong. If Trump is found guilty, he has the right to appeal. And the odds the Supreme Court — with six conservative justices, three picked by Trump — will take the case have to be 100%. And if I am wrong, it will only be because the appeal would be so lacking in merit as to be laughable. Turley then writes "Smith is now showing the same abandon in pursuing Trump, including detailing his speech on Jan. 6, 2021, before the riot while omitting the line where Trump told his supporters to go to the U.S. Capitol to "peacefully" protest the certification." It is not up to the prosecutor to make the defense’s case for them. Criminal defendants have their own lawyers. If Trump’s call for the tumultuous mob to “peacefully” protest is exculpatory, his attorneys will bring it up. And the jury will decide. Turley then repeats a previous lie. "While the indictment acknowledges that candidates are allowed to make false statements, Smith proceeded to charge Trump for making "knowingly false statements." Spare me. Smith did refer to Trump’s knowing lies in the indictment, but he did not charge him for them (see above). Turley continues: "On the election claims, Smith declares that Trump "knew that they were false" because he was "notified repeatedly that his claims were untrue." The problem is that Trump had lawyers and others telling him that the claims were true. Smith is indicting Trump for believing his lawyers over his other advisers." Smith is not indicting Trump because he believed “his lawyers over his other advisers” (many of who were also lawyers) but because he has evidence Trump knew that he had lost the election. The jury will decide if that evidence is compelling. Turley has more to offer, but it does not get any better, and I will spare the reader more of his sophistry. However, should anyone who has made it this far want to continue, click HERE for Turley’s complete opinion. America’s constitutionally-based criminal justice system affords a defendant many rights, including the right to due process, legal representation, a trial by jury, a decision beyond a reasonable doubt, and appeals. If Trump is innocent, he will be fine. And if he is guilty, he may still get away with it. Although he is drawing to an inside straight if he thinks he can get away with it four times (assuming the Georgia case also produces an indictment.) It should not have to be said, but not prosecuting Trump would set the US on a dangerous path. It would be Ford’s pardon of Nixon on steroids. [END] --- [1] Url: https://www.dailykos.com/stories/2023/8/4/2185311/-Jonathan-Turley-says-the-Trump-prosecution-is-worse-for-America-than-an-attempted-coup Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/