Wednesday, October 08, 2025

The Stephen Miller School of Law And Cosmetology

Yeah, start there.

Trump is getting TERRIBLE legal advice:

Trump talked about his administration demanding a mandatory minimum of one year in prison for "inciting riots."

"We took the freedom of speech away because that's been through the courts, and the courts said you have freedom of speech, but what has happened is when they burn a flag, it agitates and irritates crowds. They've never seen anything like it. On both sides," Trump claimed.

The U.S. Supreme Court decided in the 1989 case Texas v. Johnson that flag burning fell under a right protected by the First Amendment.

"You end up with riots. So, we're going on that basis," Trump said, turning to Bondi. "We're looking at it not — from the freedom of speech. I always felt very strongly about it. But it never passed the courts." 

Riots like the ones in Portland?  People dancing in the streets in animal costumes is a riot?  Well, maybe in the sense of "funny." Or the assault on an entire apartment building in Chicago?  It does recall the police riot of '68 at the Democratic Convension.

Trump can't just fantasize this stuff and make it the law of the land.  Even the Sinister Six won't stand with that nonsense (unless they want to just jettison their legitimacy entirely.  A Democratic Congress in '27  could do a great deal of damage to the Supremes, given the excuse to.) 

And the 1st Amendment is not subject to Presidential determination of what "caused" a riot which has, in fact, not happened in at least the past 5 years.  Although trying to parse what he said for any sense at all is a fool's errand. It's just gibberish.

"We took the freedom of speech away because that's been through the courts, and the courts said you have freedom of speech, but what has happened is when they burn a flag, it agitates and irritates crowds. They've never seen anything like it. On both sides," 

I defy you to make that make sense, without editing it heavily and inserting words and ideas that are not present.

"You end up with riots. So, we're going on that basis," Trump said, turning to Bondi. "We're looking at it not — from the freedom of speech. I always felt very strongly about it. But it never passed the courts."  

And that hardly qualifies as a clarification.

Then there's this:

In an NBC News report on Wednesday, five people — including a senior administration official, two people close to the White House and two others aware of the conversations — the administration is apparently beginning to consider the next moves and "whether it makes sense to invoke the act."
(Pro tip, it doesn't.)
"Administration officials have drafted legal defenses and various options for invoking the act," two of the people told the outlet.

"But the current, broad consensus among the president’s aides has been to exhaust all other options before taking that step, the senior administration official and one of the people close to the White House said."

...

“If people were being killed, and courts were holding us up, or governors or mayors were holding us up, sure, I’d do that,” Trump said.
Not exactly grounds for invoking the law:

Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

That's 10 USC 13.251.  What Trump wants to use is the next section:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Although I have no expertise on the application of this statute, I'm comfortable in saying people standing on a street corner shouting at ICE agents on a nearby rooftop does not constitutie a "rebellion." And sending federal agents into an apartment building to remove by force every human being in there, and destroying the property and security in the process, is not a sign of a "rebellion," either.  Although it wouldn't surprise me if it prompted one.

This language is closer to the reasoning of the 9th Circuit when it held Trump could send the Guard and the Marines to downtown LA to protect the federal building there.  I don't know what federal building the Presbyterian minister threatened, or what federal building was threatened by the apartment house in Chicago.  But protesting federal government policy is not a "rebellion."

This is not grounds for the Act, either:

And do you remember this shit from the 60+ cases challenging the election results in 2020? When they got to court, and there was no damn cat, and no damn cradle? Good times, good times. And it only gets better (no, not for Trump): Is he thinking of the Gulf Coast during hurricane season? The judge in Portland handed him his ass because this is all the “evidence “ the DOJ had to claim they needed Posse Comitatus to save Portland from itself. I really look forward to Trump sending them back to court to say: “Okay, now we have to put down the rebellion. Your Honor, there are people in the streets dressed as unicorns!” đŸĻ„  And now from the Stephen Miller School of Jurisprudence and Cosmetology: It’s really a race to the bottom…. … between Noem and Trump.  So let’s sit back and see how long it takes Comey’s lawyers to get that case dismissed. My money’s on some time before the end of the year.
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5 comments:

  1. jim, some guy in iowa7:18 PM

    I sometimes think every single damn voter should have been forced to sit through a half hour of unedited, unsanewashed Trump before filling out the ballot. His brain was already often the consistency of melted butter before whatever happened a couple weeks ago, the difference now is it's even more so.

    In my ideal post-26 election world, the Supremes have already played enough games with the Constitution to justify being put on a much shorter leash. The horsing around with the shadow docket, for one- there must be a better way for the cases the Court hears to be chosen than just letting them pick and choose according to whatever the majority *feels* like addressing?

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    Replies
    1. jim, some guy in iowa7:21 PM

      first paragraph, "couple *of* weeks ago. embarrassing to make a mistake that irritates me when I see it elsewhere

      Delete
    2. Rmj10:22 PM

      I’ve got to start Vladeck’s book over. He opens with a discussion of the Judiciary Act that basically established the modern Court. What Congress created, Congress can change. It’s the details of that I need to brush up on.

      Delete
  2. The Thought Criminal4:13 AM

    I favor the Congress zeroing out the Supreme Court budget other than their salaries and imposing real bans on them getting any grift from billionaires and millionaires and having to declare anything they have received since they entered government service in the past, publicly.
    The "well, Bryers and Sotomayor wrote a book" and "RBG took trips too" response to the corruption of the Republican-fascists gets that response from me. When I heard RGB was going on trips with Scalia it did a lot to bring her down in my eyes. They are the source of the corruption in the U.S. government, overturning the efforts of previous Congresses to clean up our elections, favoring "moneyspeech" over clean government. The ascendancy of Gingrich followed on from there.

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  3. Rmj11:25 AM

    I'll keep calling for a repeat of the "post-Civil War" amendments, not in content but in purpose. And yes, Congress can easily tell the Supreme Court it is subject to the same ethical rules as the rest of the federal judicial system. And it should. Art. III only establishes a court named the "Supreme Court." It leaves the rest of Congress.

    This "co-equal" branch stuff has proved pernicious. As I've noted before, Congress can remove the President (and should have done, by now). It can remove Supreme Court justices. Neither of those "co-equal" branches can remove a sitting Congressmember. Only the respective houses, or the voters, can do that. Time to scrub that "co-equal" nonsense from our brains.

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