Month: June 2022

There is no question that Donald Trump’s rhetoric and inaction before and during the 2021 Capitol riot were reckless—so reckless that they easily justified his second impeachment. But as I have argued before, that does not mean he is guilty of incitement, a criminal charge that requires proof of intent. Does yesterday’s congressional testimony by Cassidy Hutchinson, a top aide to then–White House Chief of Staff Mark Meadows, make that charge more plausible?

Columbia law professor Daniel C. Richman is skeptical. “This is a dramatic last piece that enriches the story,” he told The New York Times. “But it’s not clear that it changes the fundamental question of criminal liability.”

By contrast, The Dispatch‘s David French, a conservative lawyer and former president of what is now the Foundation for Individual Rights and Expression, thinks “the case for prosecuting Trump is stronger than it’s ever been before” in light of Hutchinson’s testimony before the Select Committee to Investigate the January 6th Attack on the United States Capitol. Given French’s long record as a defender of the First Amendment, his take cannot be readily dismissed. But I still think the evidence falls well short of what would be required to convict Trump of incitement while respecting the freedom of speech guaranteed by the First Amendment.

French focuses on Hutchinson’s report that Trump knew some of the supporters who showed up for the pre-riot rally at the Ellipse were armed but nevertheless told the Secret Service to stop screening them with metal detectors. Hutchinson said she heard Trump say something like this: “You know, I don’t effing care that they have weapons. They’re not here to hurt me. Take the effing mags [magnetometers] away. Let my people in. They can march to the Capitol from here. Let the people in. Take the effing mags away.”

Some Trump supporters were carrying flagpoles that would later be weaponized against police. Rep. Liz Cheney (R–Wyo.), vice chair of the January 6 committee, yesterday noted that some protesters also had “pepper spray, knives, brass knuckles, tasers, body armor, gas masks, batons, [and] blunt weapons.” She added that the committee “has obtained police radio transmissions identifying individuals with firearms, including AR-15s, near the Ellipse on the morning of January 6th.”

Hutchinson says Deputy Chief of Staff Tony Ornato told Meadows about the weapons on the morning of January 6. The committee yesterday played a video of Hutchinson’s private testimony to that effect. “I remember Tony mentioning knives, guns in the form of pistols and rifles, bear spray, body armor, spears, and flagpoles,” she said. “Tony had related to me something to the effect of ‘These effing people are fastening spears onto the ends of flagpoles.'” When they shared this information with Meadows, Hutchinson said, he asked Ornato if the president was aware of it, and Ornato said he was.

Trump’s lack of concern about the weapons, which he viewed as unimportant because they would never be used against him, is further evidence of his reckless self-absorption. But it does not necessarily indicate that he expected or wanted his followers to breach the Capitol, vandalize the building, or attack police officers.

Trump’s main concern at that point seems to have been maximizing the audience for the incendiary speech in which he reiterated his fantasy of a stolen election, warned that American democracy and the republic itself would be destroyed if Joe Biden was allowed to take office, and urged his supporters to “fight like hell.” He did not want the Secret Service to turn away people who were carrying weapons because that would have made the crowd smaller.

The absurd vanity of Trump’s obsession with the crowd’s size—which harked back to the “alternative facts” he offered regarding the turnout at his inauguration—was obvious in the opening lines of his January 6 speech. “The media will not show the magnitude of this crowd,” he said. “Even I, when I turned on [the TV] today, I looked, and I saw thousands of people here, but you don’t see hundreds of thousands of people behind you because they don’t want to show that. We have hundreds of thousands of people here, and I just want them to be recognized by the fake news media. Turn your cameras, please, and show what’s really happening out here, because these people are not going to take it any longer. They’re not going to take it any longer. Go ahead. Turn your cameras, please. Would you show?”

French also notes Hutchinson’s testimony that Trump initially intended to join his supporters at the Capitol, which is about two miles from the Ellipse. That much also was apparent from the speech. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” Trump said. “We’re going to walk down Pennsylvania Avenue…and we’re going to the Capitol.”

Hutchinson testified that the danger posed by that plan was clear to Meadows four days before the riot. On January 2, she said, Trump lawyer Rudy Giuliani, who would also speak at the rally, told her about the planned march, and she described that conversation to Meadows. “I remember leaning against the doorway and saying, ‘I just had an interesting conversation with Rudy, Mark,'” she said. “‘It sounds like we’re going to go to the Capitol.’ He didn’t look up from his phone and said something to the effect of ‘There’s a lot going on, Cass, but I don’t know. Things might get real, real bad on January 6th.'”

On the morning of January 6, Hutchinson said, White House Counsel Pat Cipollone was determined to stop Trump from going to the Capitol because he was worried about potential criminal liability. “Mr. Cipollone said something to the effect of ‘Please make sure we don’t go up to the Capitol, Cassidy,'” she testified. “‘Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.'”

Hutchinson also testified that Trump was enraged when the Secret Service told him, after his speech, that they were returning to the White House rather than driving to the Capitol. The Secret Service has disputed her secondhand account that Trump tried to grab the steering wheel of the SUV in which he was traveling and “lunge[d] towards” Secret Service agent Bobby Engel, “motion[ing] towards his clavicles [sic].” Citing “Secret Service officials who requested anonymity,” The New York Times reports that both Engel, the head of Trump’s protective detail, and the driver “were prepared to state under oath that neither man was assaulted by the former president and that he did not reach for the wheel.” But the Times adds that “the two men would not dispute the allegation that Mr. Trump wanted to go to the Capitol.”

In fact, Engel’s previous, private testimony confirms that Trump was frustrated by the Secret Service’s insistence that he return to the White House. “Engel told Jan. 6 select committee investigators that the two men discussed Trump’s desire to go to the Capitol and took different views on the topic,” Politico reported earlier this month, citing ” a person familiar with the agent’s congressional testimony.”

Trump’s desire to join his supporters at the Capitol underlines the point that he was heedless of the risks posed by moving the protest to the grounds of the building where Congress was about to certify Biden’s victory. Given the circumstances, violence was predictable. But that does not necessarily mean Trump anticipated it, let alone that he intended to incite it. Obviously, Trump should have anticipated violence. But if he did not, it would be consistent with his long record of failing to act as a decent, sensible, reasonably prudent person would.

Trump’s appalling irresponsibility was on display again after the riot started. Rather than try to stop the violence, he egged on his supporters, tweeting that Vice President Mike Pence, by refusing to unilaterally and illegally reject electoral votes for Biden, showed that he “didn’t have the courage to do what was necessary.” As French notes, video shows that the crowd outside the Capitol “surged” in response to that tweet. When Cipollone told Meadows that the protesters were “literally calling for the vice president to be effing hung,” Hutchinson testified, Meadows “responded something to the effect of ‘You heard him, Pat. He thinks Mike deserves it.'”

It has long been clear that Trump was, as French puts it, “morally and politically responsible” for the riot, which is why he was impeached. “There’s no credible argument that a mob would have stormed the Capitol if he had the basic decency to concede a race he clearly lost,” French notes.

For months, Trump ceaselessly promoted the “Stop the Steal” narrative, demanding that his supporters live in an alternative universe where he won reelection. He urged them to attend the “Save America” rally, which he predicted would be “wild” and portrayed as a last-ditch effort to stop the installation of an illegitimate president. His speech at the rally aimed to rile up fans who shared his fantasy, which he hoped would exert pressure on “weak” Republican legislators who did not. His behavior after the protest predictably turned violent was inexcusable.

But none of that necessarily means Trump was criminally responsible for the riot, a question that hinges on his intent. Under federal law, “to incite a riot” means “to organize, promote, encourage, participate in, or carry on a riot.” The crime, which is a felony punishable by up to five years in prison, “includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.”

Even advocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected speech unless it is both  “likely” to incite “imminent lawless action” and “directed” at that outcome. In Trump’s case, it surely was likely that at least some of his supporters would do more than “peacefully and patriotically make [their] voices heard.” But the fact remains that Trump—unlike the Ku Klux Klan leader charged with advocating violence in Brandenburg, whose conviction was nevertheless overturned—did not urge his supporters to break the law. Nor is it clear that he wanted them to do so, even if he was strikingly unconcerned when they did.

As French sees it, Hutchinson’s testimony reinforces the argument that “the attack on the Capitol was unfolding as he intended.” But that testimony is also consistent with what we knew about Trump long before the riot: He is a vain, reckless, petty, impulsive man who elevates his own interests above everything else. It is perfectly plausible that Trump either did not consider or did not care about the danger of violence that day. But the Brandenburg standard, which aims to protect freedom of speech by making it difficult to hold people criminally liable for the actions of listeners inspired by their words, requires more than that.

“The First Amendment is broadly protective even of political speech that outright advocates violence,” French notes. “There is (rightly) a very high constitutional barrier to criminally prosecuting any person for allegedly inciting violence. After all, the primary responsibility for a riot rests with the rioters—in the absence of direct command authority (like a general commands his troops), nobody can make a person riot.”

That principle barred the prosecution of an odious bigot in Brandenburg. It should not be sacrificed for the satisfaction of seeing a delusional demagogue get his comeuppance.

The post Did Cassidy Hutchinson's Testimony Clinch the Incitement Case Against Trump? appeared first on Reason.com.

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Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization argued that the constitutional right to abortion must be eliminated so that state governments may enjoy free rein to criminalize abortion as they see fit.

The problem with Alito’s opinion is that it stands at odds with the text and history of the 14th Amendment, which says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” As its drafting and ratification history demonstrate, the 14th Amendment was originally understood to protect a broad range of individual rights from state infringement, including unenumerated rights.

Consider the words of Sen. Jacob Howard (R–Mich.), who introduced the 14th Amendment in the Senate in 1866 and spearheaded its passage through that chamber. The 14th Amendment was needed, Howard explained in a speech that was widely reprinted throughout the country, because the “mass of privileges, immunities, and rights” secured by the Constitution “do not operate in the slightest degree as a restraint or prohibition upon State legislation.”

Howard was right about that. Remember that the Bill of Rights originally applied only against the federal government. The First Amendment, which begins, “Congress shall make no law,” was quite explicit on this point. So, Howard continued, “the great object of the first section of this [14th] amendment is, therefore, to restrict the power of the States and compel them at all times to respect these great fundamental guarantees.”

What “great fundamental guarantees” and what “mass of privileges, immunities, and rights” was the 14th Amendment designed to protect from state abuse? For starters, Howard said, the amendment protected fundamental rights that were not explicitly spelled out in the Constitution. “These privileges and immunities,” Howard said, “are not and cannot be fully defined in their precise nature.” In addition, he continued, “to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.” In short, the 14th Amendment compels the states to respect both “the first eight amendments” (enumerated rights) and other fundamental rights that “are not and cannot be fully defined” (unenumerated rights).

Which brings us to the legal debate over abortion. Thanks to the 14th Amendment’s ratification in 1868, every state must now respect the right to freedom of speech, the right to keep and bear arms, and so on down the line of individual liberties mentioned in the Bill of Rights. But that is not the end of it. The states must also respect the individual liberties guaranteed by the Ninth Amendment, which reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Those unenumerated rights “retained by the people” are part of the great mass of liberties that “are not and cannot be fully defined.” The Ninth Amendment’s inclusion in the Bill of Rights makes the unwritten liberties that it protects “fundamental” by definition.

Now we reach the key question: Do abortion rights fall under the protection of the Ninth Amendment? If the answer to that is yes, then that means that abortion rights apply against the states via the 14th Amendment.

My answer to the key question, which I recently spelled out at length, is this: “Founding era history strongly supports the view that abortion rights, at least during the early stages of pregnancy, do fall within the orbit of Madison’s Ninth Amendment.” What that means is that Alito’s abortion opinion got both the Ninth Amendment and the 14th Amendment wrong.

The post Abortion Rights Under the 9th and 14th Amendments appeared first on Reason.com.

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Parents do not have the power to seek certain medical treatments to assist their trans children in potentially changing their gender because it’s not “deeply rooted in [America’s] history or traditions,” argues the attorney general of Alabama, using language that echoes last week’s Supreme Court decision overturning Roe v. Wade.

In this case, Alabama Attorney General Steve Marshall is attempting to overturn a temporary injunction that blocks implementation of a state law (S.B 184) that bans and criminalizes treating trans children with puberty blockers, hormones, or surgeries for the purpose of “transitioning” the child to the opposite sex.

A group of Alabama parents and a pediatrician filed suit to stop the law, arguing it unconstitutionally interferes in the rights of families to decide medical treatments for themselves. The U.S. Department of Justice also intervened in support of the families. Meanwhile, 15 other states filed briefs in support of Alabama, while 22 healthcare organizations filed briefs in support of the families.

In May, a judge with the U.S. District Court for the Middle District of Alabama, Northern Division, sided with the plaintiffs, observing that Alabama officials “failed to produce evidence showing that transitioning medications jeopardize the health and safety of minors suffering from gender dysphoria. Nor do Defendants offer evidence to suggest that healthcare associations are aggressively pushing these medications on minors.” Judge Liles C. Burke found that the parents were likely to win on claims that S.B. 184 violates their 14th Amendment Due Process and Equal Protection rights and stopped the state from enforcing much of the law for now as it continues its way through the courts.

Alabama has turned to the U.S. Court of Appeals for the 11th Circuit to get the injunction overturned and submitted an argument on Tuesday that Burke’s constitutional interpretations are wrong. While Alabama’s response includes discussion of many court cases and precedents in its argument that Burke got the decision wrong, it’s getting the most attention because it includes some of the logic from the June 24 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade, leaving it to individual states to decide the extent that women can abort pregnancies.

Part of the logic of Justice Samuel Alito’s majority decision was that “the right to abortion is not deeply rooted in the Nation’s history and tradition.” That wording didn’t originate with the Dobbs decision. You’ll find this analysis in Washington v. Glucksberg, a 1997 Supreme Court case where the justices unanimously ruled that Americans do not have constitutional right to physician-assisted suicide. Alito explained in the majority decision in Dobbs that the courts typically use that “history and tradition” analysis to determine whether an unenumerated right exists and is protected by the 14th Amendment. In Dobbs, the majority concluded that abortion does not. And while Alito’s opinion was insistent that the Dobbs decision was very particular because abortion results in the destruction of a “potential life,” there is really nothing in the decision that would prevent its logic from being used in other cases.

And that’s exactly what is happening in Alabama:

The district court thus erred when it found in the Due Process Clause a fundamental right for parents “to treat their children with transitioning medications.” Neither the district court nor Plaintiffs even attempted to show how such a right is deeply rooted in our nation’s history and traditions, which it obviously is not. Indeed, courts are in one accord that there is no personal substantive-due-process right for anyone—adult or child—to obtain medical treatments deemed dangerous or experimental by the government, so there is no reason to think that parents have a right to obtain those same treatments for their children.

It’s a mistake, though, to see Alabama’s response solely through the lens of Dobbs. The argument here is that nobody has a constitutional right to any sort of medical treatment if the government deems it dangerous or experimental. There are many, many court cases that back up Alabama here besides just Dobbs. The introduction to the argument initially discusses not transgender medical treatment but medical marijuana use, noting that Alabama lawmakers recently decided to allow marijuana as a treatment for a host of particular illnesses.

Prior to this change, the appeal notes, marijuana use in the state was illegal, regardless of whether patients wanted to use it and regardless of whether doctors wanted to prescribe it. Alabama invokes medical marijuana here to explain that the state has wide authority to decide what we are permitted to do with our bodies and that the courts have historically deferred to lawmakers to establish the framework.

As such, notes Marshall’s filing, Alabama’s lawmakers have determined that some of this medical transition treatment is too dangerous and experimental and decided not to allow it for children: “The State can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child. Just as the parental relationship does not unlock a Due Process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments.”

Many would argue that parents and children (and not the government) should be making these decisions. But there are many, many court decisions that have determined otherwise. And Alabama’s position is that the state gets to call the shots here, even if all the medical experts disagree with them.

The post Alabama Draws on Supreme Court's New Abortion Decision To Justify Trans Youth Treatment Ban appeared first on Reason.com.

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I have written before about the Ninth Circuit’s troubling April ruling in United States v. Rosenow, which held (among other things) that Internet preservation under 18 U.S.C. § 2703(f) is entirely outside the Fourth Amendment.  “Internet preservation,” for those who haven’t followed the issue, is the process by which the government directs an Internet provider to make a copy of the entirety of someone’s account and to hold it for the government.  I think this ruling is wrong, as I have explained before.  But it’s been a while since I posted on the issue, and I thought I would bring readers up to date on the case as well as related developments.

First off, there has been a lot of action on rehearing matters in Rosenow.  On June 8th, counsel for Rosenow filed this petition for rehearing in the case. The petition leads with the preservation issue, although it also addresses other questions.  On June 21st, an advocacy group called “Restore the 4th” filed an amicus brief in support of the petition for rehearing. The government has obtained an extension of its brief in opposition to rehearing, which is now due on the first day of August.

Second, I have revised my model brief by adding a new section to respond to the claim, alluded to in Rosenow, that Internet users have consented to any searches or seizures because they used Internet accounts governed by terms of service that permit providers to comply with legal process.  I think this is pretty clearly wrong, and a new section of the model brief explains why (see pages 18-22).

Finally, have received word of at least two motions to suppress for Internet content preservation being filed based on the model brief.  I would guess some other motions have been filed that I don’t know of, but I have learned of at least two.  As I have noted before, developing the arguments and writing the model brief was one step, but actually having lawyers file the motion has been more of a challenge than I initially expected.  Anyway, I am glad to learn that at least some motions to suppress have been filed using the brief.

As always, stay tuned.

The post Update on the Ninth Circuit's Rosenow Case—Plus a New Model Brief, and Other Litigation appeared first on Reason.com.

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