This is far worse than I ever would have imagined:
For hundreds of years, our country has embraced the core value that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” Case 1:23-cr-00257-TSC Document 60 Filed 09/25/23 In re Murphy-Brown, LLC, 907 F.3d 788, 796–97 (4th Cir. 2018) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (internal quotation marks omitted)). This freedom from government censorship is fundamental to our national ethos and “it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).
Tossing these foundational principles aside, the Biden Administration charged President Trump—the leading contender in the 2024 Presidential Election—for statements he made as president. Now, keenly aware that it is losing that race for 2024, the prosecution seeks to unconstitutionally silence President Trump’s (but not President Biden’s) political speech on pain of contempt. See Citizens United v. Fed. Election Comm’ n, 558 U.S. 310, 349 (2010) (“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”).
The correct terminology is "former President Trump." We only have one president at a time. I do like the "keenly aware" stuff; but it's bullshit as a legal issue (i.e., assuming facts not in evidence, and all that). And the motion by DOJ is aimed at maintaining the fairness and authority of the court and the criminal process. Note how quickly they conflate whatever Trump says with "political speech." I'm only surprised they didn't lead off with "ELECTION INTERFERENCE!"
This is the heart of their argument:
In support, the prosecution presents nothing but pretexts, claiming that the Court must muzzle President Trump to ensure that: (1) the prosecution, the Court, and witnesses are not “intimidated” by political criticism; and (2) the District of Columbia citizenry (who voted by a margin of around 95% for Biden in the 2020 election) do not magically transform and become biased in President Trump’s favor.
To say it's utter bullshit is still to give it too much regard. You can be forgiven for forgetting Trump is out on bail (he could be in jail, where his pronouncements would be controlled by the Bureau of Prisons). You can also be forgiven for wondering how "witness intimidation" is actually protected "political speech." This is a shell game, in other words; but one with no pea, and no shells. "No damned cat, and no damned cradle!"
That's not a winning argument. This isn't even "throw it against the wall and see what sticks!" This is a Trump-quality rant presented as a legal pleading. I can't wait to see how they appeal this to the D.C. circuit. Oh, no, it doesn't get any better:
At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden. His administration’s plan is quite simple: unleash a 45-page speaking indictment, discuss and leak its talking points in the press, and then cynically attempt to invoke the Court’s authority to prevent President Trump and those acting on his behalf from presenting his side of the story to the American people during a political campaign. This desperate effort at censorship is unconstitutional on its face. NAACP v. Button, 371 U.S. 415, 445 (1963) (the First Amendment is a value-free provision whose protection is not dependent on “the truth, popularity, or social utility of the ideas and beliefs which are offered”).
If you're wondering what NAACP v Button has to do with that paragraph, I can only tell you: so am I. To say none of that amounts to a legal argument should, I would hope, be obvious to anyone except a die-hard MAGAt. It's not the the motion is completely daft:
As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.
It's that the attempt at an argument consistently misses the point, and hopes the judge will be beguiled to do so, as well. Criticism of the Special Counsel is not witness intimidation, and criticism of the judge and the proceedings is language not protected by the First Amendment. Indeed, the argument here is simply "ELECTION INTERFERENCE!", in which a political campaign is akin to McCarthy's idea of super-investigative powers bestowed by a claim that a House investigation is an "impeachment inquiry."
The prosecution would silence President Trump, amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution. However, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
The prosecution may not like President’s Trump’s entirely valid criticisms, but neither it nor this Court are the filter for what the public may hear.
Trump wants to make this about his "entirely valid criticisms," but that isn't the issue. He desperately wants it to be, though, because without that, HE HAS NO VALID DEFENSE TO THIS MOTION!
Again: it doesn't work that way. Even Aileen Cannon would know better.
This is a literal statement in this motion:
If the prosecution wishes to avoid criticism for abusing its power, the solution is simple: stop abusing its power. The Constitution allows no alternative.
And then the response goes on continuing to complain that DOJ has presented no evidence in support of its motion.
Try to follow this reasoning, for example:
Quite the opposite, the prosecution’s cited posts [in context, that would be the Truth Social posts cited in the DOJ motion] show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about.
Trump has every right to pursue motion practice in court. He doesn't have every right to talk about it outside the court. And posting on social media is not a prerequisite, or even an adjunctive practice, to seeking redress in court "through legitimate means." But the argument here is that, for Trump, a presidential candidate, it is. Who knew declaring your candidacy for POTUS gave you extra-constitutional powers?
It goes on and one like that for 25 pages, over and over again asserting that DOJ is doing the political bidding of Joe Biden, Candidate, and Trump is a victim of the Deep State. Well, that part is implicit rather than explicit, but it's not hard to find. The sad thing is to compare this quality of legal representation with that being given Hunter Biden, where his very able defense counsel is tying the Special Prosecutor in knots, and ably suing people like Giuliani for slander and invasion of privacy. It's worth paying attention to what Hunter's lawyers are doing because, by contrast, Trump's lawyers are from Clown College.
Couldn't happen to a more deserving guy. I'm looking forward to the DOJ response.
