Would Trump&#39;s defence work in other courts? Donald Trump's defence against incitement is essentially the ambiguity of his language: he never explicitly told the crowd to violently attack Congress, but he did use ambiguous words such as &quot;fight&quot;, which many in the crowd understood as an instruction to do just that. This seems to me to be akin to a mafia don's method of ordering a hit: he uses ambiguous language such as &quot;peacefully deal with the problem&quot;. Even if this is secretly recorded, in court his defence against a charge of soliciting murder is that he never actually gave any such order, and some overzealous underling misunderstood. In general, does such a thing work? How does the prosecution in such a case get over the hurdle of proving that an order was given when the language used is always couched in euphemistic codes? Edit in response to various comments and answers: I do not want answers that argue about the precise semantics of words like &quot;fight&quot;. I'm interested in the legal principles used to resolve such ambiguities, not the particular ambiguities used by Trump in the lead-up to 6th January.
In all cases of speech in U.S. Jurisprudence, the speech uttered is presumed First Amendment Protected unless proven otherwise. Critical to this proof is the intent of the speaker and his/her word choice and usage. In order to prove that Trump uttered unprotected speech, the prosecution must show that the language was deliberately spoken by Trump to promote Imminent Lawless Action (Brandenberg v. Ohio). That means that not only must the actions come with a defined time of action, but it also means that you have to prove Mens Rea - that Trump knew in his mind at the time he spoke that the words would incite. Finally, you cannot cherry pick a quote but rather must view the totality of the events in question. Trump did make statements against violence prior to and following the speech in question, which suggests he was not advocating for violent actions taken that day. The word &quot;fight&quot; which does not always mean a violent. Miriam-Webster's definition of &quot;to fight&quot; is: 1 : to struggle in battle or in physical combat. 2 : to argue angrily : quarrel. 3 : to try hard While the first definition of the word does indicate physical violence, but the second and third are possible to do with no violence whatsoever. The concept of fighting for something is often used by people at constitutionally protected protests and gatherings and the use of the term has never been used to convict the speaker for the misinterpretation of the words by the person who hears them. If this were the case, you can expect the Beastie Boys to get slapped with criminal charges for their advocacy of fighting for the right to Party (incidentally, the song never once advocates for violence in the pursuit of wild teen parties... it's merely a list of the restrictions and hypocrisies of the rule makers and enforcers). What's more, Mafia Dons don't normally go down for specific instructions to &quot;kill the mook&quot; but rather for RICO charges. Their whole organization is corrupt and thus they can be held responsible for the corrupt actions of people in their chain of command in the organization. There has yet to be any evidence supporting that Trump knew and participated in the planning of the assault on Congress. Yes, there was planning prior to the events, which means people would have done this without Trump's speech... which means they were not instructed specifically by him at the time. Trump could have said something different and the results would be the same. On top of that... the violence at Congress was started during Trumps speech, not after it... and the place where the speech was given was far enough away from Capitol Hill that it would be difficult to argue that the first wave of rioters even heard the speech let alone were influenced by it. You can believe this was Trumps goal all you want, but the fact of the matter is the law says that Trump does not have to do anything to prove his intent. The burden of proof rests with he who doubts is enforce and in order to prove the speech was unprotected, you have to show clear evidence Trump did intend for the riot to happen.
The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate.
First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows.
Art. 19 of the Indian Constitution states that (1) All citizens shall have the right (a) to freedom of speech and expression... from which is follows that you may advance any argument that you want in support of an idea. The courts have never questioned this. There is a potential grey area regarding verbal acts that cause the use of violence, but in terms of presenting reasons that such-and-such acts are good (or bad), that form of expression is absolutely protected. The grey area comes from clause 2: Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence whereby a law against inciting to violence might pass constitutional muster. &quot;Justification&quot; of an action is very different from &quot;inciting&quot; to do an act.
Maybe, but we'll probably never know for sure. Officially, of course, he was not punished for his speech. He was punished for selling explosives without a license, which he admitted to. (He was also charged with illegally storing explosives and illegally mailing 'injurious material," but those charges were dropped in exchange for his guilty plea on the first count.) Whether those charges were a pretext to retaliate is probably unknowable. While it's a well-known fact that law enforcement frequently retaliates against people for exercising their right to free speech, this guy's story doesn't sound very credible. There is precedent for a prosecution for distributing Pest Control Report 2000, including the prosecution of white supremacist Leo Felton, a sad-sack loser who used the same material to build a bomb around to incite a "racial holy war" the same time. And just about a month after Ver's conviction, the man who owned the company that manufactured the product was convicted of violating federal explosives and transportation laws. Several months after that, he and his company entered into a consent decree with the Consumer Product Safety Commission ordering them to stop manufacturing Pest Control Report 2000.
The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show: We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant. In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime." Again, i don't see any reason why these rules would be different for someone acting pro se.
E. Jean Carroll first sued Donald Trump in 2019 for defamation in connection with his statements in 2019 denying a prior assault upon her in the 1990s in response to her 2019 memoire asserted that he had done so in the 1990s. The statute of limitations in that case ran from the time that Trump made the statement. The first lawsuit is still pending because of issues over whether Presidential immunity from lawsuits applies to it: The Justice Department has argued Trump was acting as the president while responding to Carroll’s allegations and said the United States, rather than Trump himself, should be the defendant. If the courts agree, it would probably torpedo Carroll’s claim because the government cannot be sued for defamation. The issue remains unresolved. The D.C. Court of Appeals heard arguments on the case but essentially punted on the issue this month, sending it to another court. The criminal statute of limitations on this underlying conduct in the 1990s expired long before the lawsuit was filed. She did not press criminal charges at the time. Last year [i.e in 2022], Carroll filed a second lawsuit, this one accusing Trump of battery and defaming her again after he left office. That lawsuit, filed in the U.S. District Court for the Southern District of New York, is the one scheduled to go to trial on Tuesday [i.e. last week]. The suit was filed in November 2022 as a New York law known as the Adult Survivors Act took effect. That law allowed sexual assault victims to sue years later, which proponents said was necessary because it can take considerable time for survivors to feel ready to speak out. All of the factual statements in this answer, including all quotes material, are from an April 24, 2023 article in the Washington Post. As a practical matter, a final resolution of the second lawsuit will resolve essentially all issues in the first lawsuit except Presidential immunity (and arguably a slight amount of damages), under the doctrine of collateral estoppel (a.k.a. issue preclusion). A defense verdict from the jury in the pending case would render the Presidential immunity issue in the first case moot. Sources including this one have concluded that the Adult Survivors Act (ASA) is likely to withstand a constitutional challenge. This is because a similar law passed on 2019, the Child Victims Act (CVA), was upheld as constitutional. The ruling in the CVA cases, in turn, relied heavily on a 9-11 related statute of limitations revival act which was upheld by New York State's highest court in 2017: Shortly after the passage of the CVA, lawsuits were filed with the state and federal courts of New York arguing that the CVA was unconstitutional under the Due Process Clause. Decisions have been rendered in state and federal courts holding that the CVA was constitutional. Both courts relied on the legal standard enumerated by the In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 400 (2017). which established that for a revival statute to be deemed constitutional under the Due Process Clause, there must exist an identifiable injustice that moved the Legislature to act,&quot; and second, &quot;in each case, the Legislature's revival of the plaintiff's claims for a limited period of time was reasonable in light of that injustice.&quot;
You've basically described two of the ends of the pole in theories of jurisprudence (there are dozens of ends). There is no theory of law that relies purely on &quot;spirit&quot; (also no theory that actually relies on the letters uses=d in writing law), instead, everybody interprets the text (the words enacted by the government) and some people supplement their interpretation with consideration of &quot;other factors&quot;, such as assumed legislative purpose. Certain scholars and judges are inclined to put most weight on the actual wording of the law, while others are inclined to let purposive considerations dictate the interpretation of a law. Interpreting law by W.N. Eskridge is an informative guide to supplementing a reading of the statute with anciliary considerations. Antonin Scalia is the best-known proponent of the textualist approach.