My latest for The Washington Post:
Perspective | The First Amendment may not help Jan. 6 defendants as much as they think it will.
Garland’s speech last week contained a warning that prosecutors will parry free-speech arguments.
washingtonpost.com/outlook/2022/0…
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Perspective | The First Amendment may not help Jan. 6 defendants as much as they think it will.
Garland’s speech last week contained a warning that prosecutors will parry free-speech arguments.
washingtonpost.com/outlook/2022/0…
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Garland told his audience that he has his sights on all the perpetrators.
He also (interestingly) launched into a discussion about the First Amendment.
We've seen the First Amendment defense repeatedly from those fighting subpoenas or dealing with indictments.
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He also (interestingly) launched into a discussion about the First Amendment.
We've seen the First Amendment defense repeatedly from those fighting subpoenas or dealing with indictments.
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When Trump faced trial in the Senate after his second impeachment for inciting a riot, he used a First Amendment Defense.
Giuliani used a First Amendment defense against Swalwall's lawsuit accusing him of (among other things) inciting a riot.)
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Giuliani used a First Amendment defense against Swalwall's lawsuit accusing him of (among other things) inciting a riot.)
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The First Amendment defense has appeared in motions fighting indictments. This example is from Eastman's lawsuit fighting the J6 committee ⤵️
One way to read Merrick Garland's speech (and all his statements so far) is that he wants to keep politics out of it.
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One way to read Merrick Garland's speech (and all his statements so far) is that he wants to keep politics out of it.
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Correct. And what I talked about in the article is the ways in which investigators are seeking evidence to rebut the defenses that the organizers will put forward.
Convicting people isn't as easy as presenting evidence of guilt and citing Brandenburg.
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Convicting people isn't as easy as presenting evidence of guilt and citing Brandenburg.
https://twitter.com/Lcg556/status/1480568214497202178
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I know because I practiced criminal defense. My practice was dedicated to representing indigents on appeal from convictions or adverse rulings.
Those accused will kick up dust. Their lawyers will point to evidence that rebuts the prosecutor's case. The standards are high.
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Those accused will kick up dust. Their lawyers will point to evidence that rebuts the prosecutor's case. The standards are high.
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Anyone planning to put forward a First Amendment Defense (and that's probably almost all of them) will hear a warning in Garland's speech:
He is anticipating First Amendment defenses, and prosecutors will be ready for it ⤵️
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He is anticipating First Amendment defenses, and prosecutors will be ready for it ⤵️
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Proving a crime requires proving intent. To take a (totally random) example of how a defendant can try to rebut the Brandenburg standard, Trump's defense was "I said be peaceful" so I meant "be peaceful."
The prosecutor needs evidence to prove that he didn't mean peaceful.
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The prosecutor needs evidence to prove that he didn't mean peaceful.
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. . . not just some evidence. The prosecutor needs evidence to prove beyond a reasonable doubt that a defendant said "peaceful" but he didn't mean peaceful.
Don't think about persuading left-leaning Twitter.
Think about persuading a jury with randomly selected members.
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Don't think about persuading left-leaning Twitter.
Think about persuading a jury with randomly selected members.
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Over the past few weeks, we've gotten hints that (again, to take a random example) when Trump said "peaceful" he didn't mean peaceful.
Another thing Garland is anticipating (we already see it happening): those accused will say the prosecutions are politically motivated.
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Another thing Garland is anticipating (we already see it happening): those accused will say the prosecutions are politically motivated.
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First, he basically says he's coming for everyone no matter what level if the facts warrant it.
Then he says "we don't do political prosecution."
I hope people can see the importance of any prosecutions of high-level people being beyond reproach.
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Then he says "we don't do political prosecution."
I hope people can see the importance of any prosecutions of high-level people being beyond reproach.
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Perhaps the left-leaners and mainstream media having a feeding frenzy because Garland is too restrained in the end avoids rule of law catering because the general public believes any prosecutions are political.
Garland says we don't do political prosecutions.
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Garland says we don't do political prosecutions.
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It's definitely doable. That's why people get convicted.
It's also why the investigations are not finished yet.
It isn't hard to prove that people entering the Capitol with weapons, erecting gallows and shouting "hang Pence" are guilty.
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It's also why the investigations are not finished yet.
It isn't hard to prove that people entering the Capitol with weapons, erecting gallows and shouting "hang Pence" are guilty.
https://twitter.com/pgargollo/status/1480571990641676290
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It's harder to prove that the people planning the rally intended that kind of violence. It can be done. But it isn't as easy as much of Twitter thinks that it is.
People say "there is evidence, therefore, why isn't there an indictment?"
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People say "there is evidence, therefore, why isn't there an indictment?"
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The planners of the rally have a First Amendment defense. If you plan a rally and you genuinely want it to be peaceful, but people show up for your rally and commit crimes, do you want to be hauled off to jail?
Garland said this ⤵️
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Garland said this ⤵️
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I realize my Tweet #12 was garbled to the point of being almost incomprehensible.
May I try again?
It's important that any prosecutions be beyond reproach and never had the appearance of being politically motivated.
In fact . . .
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May I try again?
It's important that any prosecutions be beyond reproach and never had the appearance of being politically motivated.
In fact . . .
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. . . given what the GOP has turned into, and what will happen if they regain power, I'd say that it is absolutely crucial that the general public believe that any prosecutions are NOT politically motivated . . .
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That's why (ironically) the left-wing Merrick Garland feeding frenzy may actually help. I understand someone actually wanted Garland to be more like Jeff Sessions !!
Whew! (I tried to scrucch all of that into one tweet. No wonder it was garbled.)
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Whew! (I tried to scrucch all of that into one tweet. No wonder it was garbled.)
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Of course. They already are.
Jim Jones, in his letter to the committee he said it's all politically motivated.
The general public needs to hear and dismiss it as the ravings of guilty lunatics.
Dangerous = the public believes it or even has doubts.
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Jim Jones, in his letter to the committee he said it's all politically motivated.
The general public needs to hear and dismiss it as the ravings of guilty lunatics.
Dangerous = the public believes it or even has doubts.
https://twitter.com/OrganLawOffices/status/1480577185517916161
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Some planners of the rally have a good defense.
Others don't.
Here's a good guess:
Those who have a good defense are cooperating.
Those with weak or no defenses are refusing to cooperate.
Fact: People with criminal liability don't cooperate.
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Others don't.
Here's a good guess:
Those who have a good defense are cooperating.
Those with weak or no defenses are refusing to cooperate.
Fact: People with criminal liability don't cooperate.
https://twitter.com/MTCNJ973/status/1480577796984422406
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Yes. Incitement is hard. Trying to interfere (obstruct) the workings of Congress is easier.
In both cases, though, defendants who can, will put forward a First Amendment defense.
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In both cases, though, defendants who can, will put forward a First Amendment defense.
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https://twitter.com/smore_camping/status/1480579825748303876
HAHAH mistake of the day goes to me 🏆
The perils of trying to get the facts right, the law right, drink coffee, think, and type all at the same time.
The perils of trying to get the facts right, the law right, drink coffee, think, and type all at the same time.
https://twitter.com/EverFlossing/status/1480582867147182082
Announcing a criminal investigation is definitely outside of protocol.
That's what Comey did in 2016 when he said there was an investigation into Clinton.
This is what Garland meant when he said he can't say more because it "jeopardizes" the "civil liberties of our citizens."
That's what Comey did in 2016 when he said there was an investigation into Clinton.
This is what Garland meant when he said he can't say more because it "jeopardizes" the "civil liberties of our citizens."
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