Friday, December 29, 2023

There Are No "Free Speech" Rights In A Courtroom

Because the courtroom is not a public forum.  Likewise, you don't have the right as a spectator in the House or Senate, or even a witness at a hearing, to carry on as you please. Those places are not public fora, either. If you disrespect the proceedings, you will be escorted out.  EOD.

And trials are governed by, among other things, rules of evidence.  The DOJ has submitted, in a timely manner, a "Motion in Limine," meant to line out or "eliminate" certain evidence from being introduced at trial because such evidence violates the Federal Rules of Evidence, or on other grounds.  Per emptywheel, here's the list:

Altogether, the filing asks Judge Chutkan to exclude the following:

  1. Claims of selective and vindictive prosecution that will be settled when Chutkan rules on Trump’s motion to dismiss on the same topic
  2. Claims of investigative misconduct based on Carol Leonnig’s misleading article about the investigation
  3. Topics — such as claims that the First Amendment covers his alleged fraud — that are matters of law
  4. The consequences Trump might face, including electoral, if the jury convicts
  5. Claims that law enforcement did not adequately prepare for January 6
  6. Claims that January 6 was a FedSurrection incited by undercover feds
  7. Claims that the disinformation of foreigners, and not Trump’s own lies, mobilized January 6
  8. Discussions of revisions to the Electoral College Act passed to prevent Trump from criming (in this particular way) again
  9. Opinions from others about Trump’s state of mind
  10. Attempts to elicit witnesses to invoke privileges — such as attorney-client or Speech and Debate
As ew points out, number 9 is the most interesting one; although it's also the one I most expected to see, as Trump's defense is, in large part, based on his arguments as to "intent."  Which is an issue in criminal trials, but it is often proven by circumstantial evidence, since the defendant cannot be forced to testify against himself by being called as a witness by the prosecution.  So I don't think it's the issue Trump wants it to be, inside our outside the court of law.

You'll see the First Amendment cited there, and lined out because it raises questions of law.  This is because juries are finders of fact.  Issues of fact are those upon which reasonable minds can differ, such as whether or not there was violence on J6 at the Capitol.  What I consider a shouting match, you might consider "violence."  It's a crude example, but that's sometimes how issues (or questions) of fact emerge in trials.  The basic question to the jury will be:  Did Donald Trump do "X",' where "X" is the element of a particular crime he's been charged with.  Most crimes have several elements, and...well, that's where we get off into the weeds.  Important to the jury; but not right now, to us.  Mostly because we don't know what evidence will be presented.  That's what a Motion in Limine is for, in fact; to get a judicial ruling on what evidence can be admitted before the trial starts, so every question and witness aren't objected to in front of the jury, making a coherent case (by either side) impossible to present.

Back to matters of law (sorry!).  Issues of law are, by law, questions upon which reasonable minds will not differ.  You may say:  "What about appellate courts?"  Mostly, appellate courts differ on what law should have been applied, or what evidence should (or should not) have been admitted.  So, yes, reasonable minds do differ on questions of law.  But it sounds terribly elitist (though much closer to true) to say "reasonable educated legal minds will decide those issues."  Jurors determine facts; judges determine law, is the most honest and clear way to put it.

And so to the rules of evidence. Trump wants to explain why he did what he did. But unless those explanations are legal defenses (and declaring yourself a victim doesn’t justify you breaking the law), they are irrelevant in court. The facts are presented to the jury; facts by the prosecution, and facts by the defense. But neither side can present facts merely meant to inflame the jury, like how many lies Trump told in his four year term as President. That he lied can be proven; that his lies are relevant to government’s case, cannot. It may convince the jury he’s a liar; it won’t establish his guilt for the crimes charged.

Trump doesn’t want to establish his innocence. Trump wants to squirt squid ink.

Whether or not the First Amendment applies is clearly a question of law.  Trump's lawyers can present briefs supporting their position, but the juries don't want to read them and wouldn't, frankly, understand them, anymore than I understand the mathematics behind basic physics.  So the question of whether or not Trump's actions are protected by the First Amendment (a separate question from whether or not he has a First Amendment right to present whatever evidence he damn well pleases) is one for Tanya Chutkan to decide, and for the appellate courts to review.  I say that because questions of fact are not for the appellate court to review (although the Supreme Court recently has been known to invent new facts for support of its conclusions of law).  Once the facts are set by the jury, they cannot be challenged in another court.  If a case is reversed and set for new trial, it's because the law was not followed, not because the jury didn't reach the right factual conclusions.

That's the theory, anyway.

So no one, not even the "frontrunner in his party's primaries for the Presidential nomination," can claim a First Amendment right to commit crimes and present that as a factual defense to a jury; because it isn't a factual defense.  And all juries are supposed to hear is the evidence allowed by law and procedure to be considered in rendering a verdict.  The application of the First Amendment as a defense to Trump's actions is a question for the court, rather like the question of his immunity from prosecution.  If the Court agrees with Trump's claims, it's a get out of jail free card; whether those claims are based on his idea of presidential immunity, or of how the First Amendment allows him to commit crimes (yeah, I'm not objective about this).  Either way, no jury need be involved.

But until that happens, we have to assume a jury will be involved, and so we have to determine (well, the judge has to determine.  This is not an issue subject to plebiscite) what evidence is permitted to be placed before the jury.  And evidence that is merely a legal argument, is not evidence.

Does Trump have a First Amendment right to spout conspiracy theories and tell the jury (falsely) that Nancy Pelosi could have called the National Guard that day, because he (as POTUS) was not responsible for activating them?  No. Again, part of that is a question of law (who had the authority to call out the NG?), and part is a question of fact (what did Trump do, or not do?).  Basically, 4-8 would be evidence that is irrelevant to the charges and don't raise a defense so much as squirt a lot of squid ink into the waters of the jury trial.

You can argue the facts; you can argue the law; you can even pound on the table.  If you remember the OJ murder trial, there was a lot of table pounding being done by Johnny Cochran that made the evening news.  But there wasn't much squid ink.  Trump wants to darken the courtroom so he can slip out under cover of that darkness.  This has nothing to do with the First Amendment, and everything to do with not letting him off the legal hook by running more of his now all-too-familiar cons.  His lawyers aren't allowed to con the jury, as a matter of legal ethics and law.  Trump has no constitutional authority to empower them to do it on his behalf.

As ew says, no. 9 is the tricky one; but not, I think, for the reasons she thinks.  It's where the action in court is going to be, where the objections from DOJ are going to come, however Chutkan rules (and she's very likely to grant this one).  Trump's lawyers have to introduce "reasonable doubt" (which differs from squid ink because it is, ultimately, reasonable).  They will try to do that despite any pre-trial order limiting what they can present in defense, even if the Court deems that defense irrelevant.  The prosecution can't appeal a verdict of "Not Guilty."  Introducing reasonable doubt where ever you can is kind of the job of the defense attorney.

10, by the way, is back to legal issues v. fact issues.  Privileges are matters of law, not fact.  The court decides if they apply, just as the jury decides what weight to give the testimony of witnesses. Also not a free speech issue. Don’t do the crime if you can’t do the time. Including courtroom time.
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