Does the First Amendment shield the previous president from the August 2023 D.C. Indictments? The former president is charged with: Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States) Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding) Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding) Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights) As I understand it, the charges are based on what was said by Donald Trump. Is there a standard / caselaw that provides a speech litmus test to determine whether any of said counts are violated?
The constitutionality of each of the charges is well supported and there is no really viable First Amendment defense to any of them. There is literally a U.S. Justice Department handbook on how to prosecute attempts to undermine the integrity of elections accumulating the wisdom its has gleaned from doing precisely what it is doing in this indictment, successfully, for generations. 18 U.S.C. § 371 (Conspiracy to Defraud the United States) This statute states that: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. Fraudulent statements which are protected by the First Amendment are the exception more than they are the rule. When fraudulent statements of presenting existing facts, or fraudulent concealment of presently existing facts, seek to impair someone's legal rights, it is generally constitutional to punish that conduct criminally. At noted here: Fraud and Perjury While, again, the First Amendment makes no categorical exception for false or misleading speech, certain types of fraudulent statements fall outside its protection. The government generally can impose liability for false advertising or on speakers who knowingly make factual misrepresentations to obtain money or some other material benefit (such as employment). Prohibitions on perjury — knowingly giving false testimony under oath — also are constitutional. This statute requires proof of intentional fraud, and not just a good faith difference of opinion sincerely held by the defendant. Probably the most on point precedent upholding the constitutionality of this statute in an analogous context is United States v. Rafoi, 60 F.4th 982 (5th Cir. 2023). This case held that the statute was constitutional where the charged conduct caused harm inside United States or to United States citizens or interests, that provided sufficient nexus, as required by due process, between United States and defendant's conduct in allegedly meeting with co-conspirators in Miami, Florida, where a noncitizen defendant, a citizen of Portugal and Switzerland who was employee of Swiss wealth-management firm, conspired to violate Foreign Corrupt Practices Act (FCPA) as agent of a person while in United States, relating to alleged international bribery scheme between businesses based in United States and Venezuelan officials and the defendant has the intent or knowledge that the monies involved were proceeds of specified unlawful activity would be unlawfully transmitted from or through a place in United States to a place outside United States. The relevant holding in this case is that prosecuting violations of U.S. laws that exist for the purposes of insisting upon orderly and non-corrupt conduct of actions related to U.S. officials or U.S. persons through fraud under this statute, is constitutional. When it affects the conduct of U.S. government business, or of a U.S. business or person, the statute is actionable and constitutional. Also pertinent is a much older U.S. Supreme Court decision, Hammerschmidt v. United States, 265 U.S. 182 (1924): [F]ormer President and Chief Justice of the Supreme Court William Howard Taft explained in a landmark 1924 opinion, the full meaning of the statute almost anticipates our current surreal scenario: “It also means to interfere with or obstruct one of its [the country’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.&quot; In contrast, fraud in the course of a political campaign to persuade voters is protected by the First Amendment. See United States v. Alvarez, 567 U.S. 709 (2012) (holding that a law criminalizing false factual statements about military honors received in a political campaign called the &quot;Stolen Valor Act&quot; in the version then in force was unconstitutional on First Amendment grounds). But that isn't what this charged is seeking to prosecute. A law review article from 2015 attempts to clarify the scope of Alvarez, distinguishing between completely unprotected lies, lies that are protected so as not to chill the expression of truthful statements, and &quot;lies that must be protected for their own sake&quot;. The citation to the article is Alan K. Chen and Justin Marceau, &quot;High Value Lies, Ugly Truths, and the First Amendment,&quot; 68 Vanderbilt Law Review 1435 (2015). It is notable that in Alvarez every conservative justice on the Court at the time other than Chief Justice Roberts, voted to affirm the constitutionality of the &quot;Stolen Valor Act&quot;, over a mostly liberal majority that held that it was an unconstitutional violation of free speech rights. Now that there is a six justice conservative majority in the U.S. Supreme Court, if the positions of conservative justices on the issue was consistent, the U.S. Supreme Court would be even more likely to uphold the constitutionality of a prosecution under 18 U.S.C. § 371 than the U.S. Supreme Court would have been inclined to in 2012. It is unclear, however, how much this conservative ruling was dependent upon the fact that the statute prohibited lying about military honors rather than about other matters. Conservatives tend to hold honor, and in particular, military honors, in greater esteem than liberals. Also, conservative justice may have been more clear than the liberal justices in that case about just how open and shut these cases were, since the truth or falsity of the statement can be determined definitively, from a single official document, the veteran's Form DD214, which there is a strong presumption that almost any veteran capable of running for political office would understand perfectly well. Another issue which influenced swing votes in the Alvarez case is that the statute that the U.S. Supreme Court considered at the time criminalized fraud regarding military honors even when it was arguably immaterial (e.g. in dinner table conservations with friends or family, as opposed to only in the context of an election campaign, or only in a request for economic benefits or legal privileges). This concern is not present in this particular prosecution under 18 U.S.C. § 371, since Donald Trump would receive the legal benefit of being re-elected as President of the United States if his alleged election results related fraud conspiracy was successful. One critical distinction, previously noted by the Washington State Supreme Court its 2007 decision in the case of Rickert v Washington, is whether, in the context of the speech giving rise to the legal consequences, &quot;the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.&quot; This will generally be true in the case of factual statements related to election results and administration, but will generally not be true in wide ranging statements about policy issues in the course of a political campaign. An August 1, 2022 report of the Congressional Research Service, the non-partisan research arm of Congress, generally confirms the analysis above. This is the only D.C. grand jury indictment for which there is even a colorable free speech argument, but given the case law, it is a weak argument. 18 U.S.C. §§ 1512 (Obstruction of and Attempt to Obstruct an Official Proceeding and Conspiracy To Do The Same) Obstruction of an official proceeding in action action with an intended effect and doesn't prevent people from expressing opinions in a way that does not obstruct official government functions, so again this isn't unconstitutional. The charge in this case charges the crime that: Whoever corruptly-- obstructs, influences, or impedes any official proceeding, or attempts to do so is guilty of a felony punishable by up to twenty years in prison. There is already case law testing the constitutionality of this portion of this statute in the context of the same course of conduct related to the January 6, 2021 riot by a lower level minor from the D.C. Circuit whose rulings are binding precedents in this indictment. United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023). The foundation for this ruling is longstanding: Speech Integral to Criminal Conduct In Giboney v. Empire Storage &amp; Ice Co. (1949), the Supreme Court held the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” A robber’s demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech. There is no constitutional basis to distinguish a direct charge of obstruction with official business from a conspiracy charge to do the same. In the case of the conspiracy to obstruct charge, the co-conspirators take actions that collectively seek to deprive people of their constitutional rights or obstruct an official proceeding, the statements made in furtherance of the group effort to achieve those ends are not legally protected speech. It is the action (either a verbal act or another kind of act) and not the expressive content of the speech that is implicated. 18 U.S.C. § 241 (Conspiracy Against Rights) A conspiracy to cause false election results to be certified to Congress to change the results of a Presidential election by two or more persons impairs the constitutional right to vote, and rights under Congressional adopted federal election laws. Notably, a conspiracy to violate rights, which is a felony punishable by up to death if the conspiracy causes someone's death (as can be plausibly alleged in this case due to a death arising from the January 6, 2021 riot) provides that the felony has been committed: If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same. The U.S. Supreme Court has previously held that prosecuting conspirators for tampering with the process of determining the correct result of the election is constitutional. U.S. v. Saylor, 322 U.S. 385 (1944). This also comes within the &quot;Speech Integral to Criminal Conduct&quot; exception to the protections of the First Amendment that is discussed above. FOOTNOTE: If the Justice Department sought the death penalty on this criminal charge the jury would have to be &quot;death qualified&quot; in the court of jury selection which tends to make the jury more conservative. But, there is no indication that the Justice Department intends to seek this relief in this particular prosecution of Donald Trump. As a practical matter, given Donald Trump's age, health, and the length of time necessary to fully appeal a death penalty conviction (which exceeds ten years in most cases), any criminal conviction with a sentences of ten or fifteen years or more would as a practical matter result in him dying in prison, and it is unlikely that appeals of a death sentence would be completed before he died of natural causes.
@Dale M is basically correct, but fudges a bit on the process. The court issuing the order would issue an order to show cause to a government official who is alleged by the person who sought the order to have violated the order after having received legal notice (i.e. service) of the order. If that individual fails to appear at the appointed time and place in the order to show cause, a warrant issues for that individual's arrest. If that individual does appear, the allegedly contemptuous individual is read their rights and a hearing date is set. At the hearing, if the person appears, the person seeking the contempt finding (or some other attorney appointed by the court) prosecutes the case and if the person is found in contempt, then contempt sanctions issue. If they do not appear, a warrant issues for their arrest and a hearing is held on the merits promptly following that arrest. An individual can also be ordered to show cause in an official capacity in which case the contempt sanctions would be imposed against the organization rather than the individual. Usually, in federal court, the U.S. Marshal's office has primary responsibility for arresting people on contempt warrants. The U.S. Marshal's office primarily reports to the judicial branch, although strictly speaking, it is part of the Justice Department, and ultimately reports to the Attorney-General. There are actually two kinds of contempt - remedial and punitive. Remedial contempt sanction can include indefinite incarceration or a fine (often a per day fine) until the violation of the order of the court ceases and is allowed only when it is possible to comply with the order going forward. Punitive contempt has a sanction comparable to a misdemeanor conviction and applies in cases where the goal is to punish someone for a past violation of a court order whether or not it is possible to comply going forward. (Both of these are examples of "indirect contempt", i.e. violations of court orders that take place outside the courtroom. A different summary process called "direct contempt" applies when someone misbehaves in the presence of the court - this is summary incarceration or fine without a trial on the spot for disrespecting the dignity of the court in the courtroom.) Established practice is to direct a contempt order at the lowest level official necessary to remedy the violation of the order. There are a few examples in living memory of cabinet members being held in contempt, however (e.g. the Secretary of Interior, with regard to Indian Trust fund litigation), and keep in mind that in the case of remedial contempt an official can purge the contempt and be released from any sanction by resigning from office, after which the official no longer has the ability to comply. I am not aware of any instance in which the President of the United States has personally been held in contempt of court, but I am also not aware of any authority that specifically prohibits a court from holding the President in contempt of court. While contempt is the only "hard" remedy for a violation of a court order, the bureaucratic structure of the federal government is also set up in a manner that once a court order definitively resolves a legal issue, the higher ups in a federal agency are supposed to take all reasonable actions to insure that their subordinates follow that order (and they are themselves subject to contempt sanctions if they fail to do so). And, keep in mind that most of the people in the chain of command are civil servants with legal protections from unlawful employment actions hired on a merit basis, not political appointees, and that lots of the people in the chain of command are also members of unions that provide individual employees with the ability to fight wrongful employment action from a superior for violating a court order. In particular, the top lawyers in the executive branch would in ordinary times direct government employees to follow a clear court order and to cease and desist from explicitly disobeying one. Among other things, the courts could probably deny lawyers who refused to do so the right to practice law in federal court. But, usually things never reach this point. Then again, we are living in interesting times. There are about 670 political appointee positions in the executive branch, many of which are currently vacant and less than a dozen of which would be relevant to any given dispute in any case. There are about a million, civilian, non-defense department, non-postal service employees in the United States government, of which perhaps 100,000 or so are in the Department of Homeland Security and fewer are in the CBP. As far as I know, the CBP political appointees from the Obama administration have resigned and a replacement has not been confirmed by the U.S. Senate yet (there has been a Department of Homeland Security appointee confirmed if I recall correctly), and there are only a few people in the agency that political appointees can hire without either receiving Senate confirmation or using the merit based hiring process for civil servants (which takes a while, especially given an executive order imposing a hiring freeze). So, realistically, we have a case where the acting head of the CBP is probably a GS-15 or Senior Executive Service grade civil servant, rather than a political appointee, at the moment, who was hired as a civil servant many years ago, who is doing his (or her) best to follow the less than clear guidance he is receiving from his superiors and government lawyers (perhaps errantly). There could also be remedies in the form of declaratory judgment. The Court could declare as a matter of law on a case by case basis that, for example, Fatima Jones is not deportable and is lawfully within the United States and is entitled to be released from custody. This specific finding as to an individual would be very hard for the administration to escape sanction for. And, the Court could also declare that the entire executive order, at least as applied, is invalid (e.g. for failure to comply with the administrative procedures act, or for failing to include an exception for contrary court orders) or is unconstitutional.
A lawsuit would be unsuccessful. Prosecutors have discretion to prioritize whichever offenses they think are most important, and they are generally immune from civil liability. This is a political grievance, and it comes with a political remedy; voters can recall the DA or vote for a new one when his term ends.
Yes. The precedent is President Gerald Ford's pardon of his predecessor Richard Nixon in proclamation 4311 before any possible prosecution had started. The pardon was granted specifically to prevent the disturbance of &quot;the tranquility to which the nation has been restored&quot; by &quot;the prospects of bringing to trial a former President of the United States&quot; (emphasis mine). It is noteworthy though that a pardon can be rejected by the recipient, and that there may be good reason to do so, because accepting one is an admission of guilt.1 In the words of the Supreme Court (Burdick v. United States, 236 U.S. 79 (1915): There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it [...]. (Again, emphasis mine.) Proactively pardoning large swathes of current and former government officials, family members and other people connected to the Trump administration would therefore be a double-edged sword: It surely may save a lot of the money and headache coming with being the target of an (even unsuccessful!) investigation; but it may also amount to admitting that the Trump administration was essentially a criminal organization. 1 As always, things are a bit less clear-cut when one takes a closer look. Because I googled &quot;prospective pardon&quot; after the correct remark by JBentley I stumbled upon the entirely relevant and eminently readable Congressional Research Service reports on pardons. The first one is a &quot;pardons FAQ&quot;, the second one is a more thorough legal exploration of what pardons actually do. The bottom line is that the Supreme Court and Federal Courts have edged away from a 19th century opinion (Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866)) which viewed a pardon as an all-encompassing expungement. Newer decisions (prominently, Burdick v. United States, 236 U.S. 79, 86 (1915) which I quoted) don't.
Yes. In 1872 President Grant was stopped for speeding (on horseback, mind you). The officer, observing that he had stopped the President of the United States, initially let him go with nothing but a verbal warning. Later the same day, the same officer stopped Grant again speeding in the same place. The officer then informed Grant that he would have to be taken in, to which Grant gave a reply encouraging the officer to do his duty. Grant was then taken to the police station where he was charged with speeding, and held until he paid a $20 fine, at which point he was released. In summary, POTUS was: Charged with an offence Deprived of his liberty for committing said offence Held until he served his punishment (paying $20) ... all without impeachment. Now, this was a long time ago. I think that today, this is unlikely, since Secret Service would (legal or not) shield the President from arrests (national security reasons). However if a state level authority did manage to arrest the President for a crime and refused to let him go, then the Vice President and cabinet would invoke the 25th Amendment (on the grounds that the President is unable to discharge his duties due to imprisonment), so that the imprisoned person would now be a former president.
It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore. 28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury" It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part. Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase. If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions).
...the public is susceptible to misinformation by bad actors in the financial system and therefore are protected by the SEC... The SEC governs fixed laws about financial transfers, disclosures, etc., and investigates illegal acts regarding those laws where there are quantitative facts, i.e. who moved how much money to where, who engaged in information for insider trading, and other situations based on hard evidence. Bad actors are deterred by the fact that can be prosecuted for their crimes by the SEC and other authorities. Shouldn't... political campaigns be audited for truthfulness? There is no government authority that audits or regulates political ads and/or claims; such authority or laws would clearly violate the First Amendment to the United States Constitution - Wikipedia as to the government regulating or attempting to control or manipulate free speech. In a non-partisan fashion, government authorities can and do routinely supply publicly available documents that can be used by the public, fact checkers and the press. False political claims are investigated by the press and various non-profits, also under the same 1st Amendment protections so that the press can operate free of government intrusion. See https://www.google.com/search?q=political+fact+checking for different political NGOs and media outlets which do fact checking. Such resources themselves can be fact challenged and partisan themselves, of course; news outlets can be under the editorial control of a political agenda, and a "fact checking" website or NGO can be funded by partisans. ...why shouldn't the same be done in the political system? Within a political system such as the US, people are responsible for their own thoughts and actions; and they are responsible for assessments of what may or may not be factual, and for what they believe (which, of course, can be removed from a factual basis). The idea that a government should be involved in auditing or otherwise having control over political speech is a political question, not a legal question.
If the Senate has convicted by the necessary majority, Trump would no longer be the President - Mike Pence would be. There is no legal difficulty in removing ordinary citizens from the White House. Of course, President Pence might decide that he didn't mind ex-President Trump remaining in the White House, and I think the law enforcement agencies would be obliged to respect that.