[As I’ve been doing the past few weeks, this blog post started out as a Youtube video. This post is an edited transcription. The video is here.]
This week I will talk about justice in general, and in particular, Rudy Giuliani’s First Amendment defense to the charge that he helped incite a violent insurrection.
As far as the justice issue, I get a lot of comments and questions like these on social media:
There are a few misconceptions contained in these questions. The first is that our political problems are the result of the wheels of justice moving slowly. The second is that the criminal justice system (or civil justice) system is the solution to a major political problem.
I’m going to ask you to bear with me while I do a deep dive into Rudy Giuliani’s First Amendment defense to the charge that he contributed to inciting the January 6th insurrection. As a bonus, this legal discussion will help you prepare for the First Amendment Defense portion of the Internet-Twitter-Blog Bar Exam. Take notes and you’ll be ready.
At the conclusion of Trump’s second impeachment trial, Senate Minority Leader Mitch McConnell concluded that Trump was “practically and morally responsible for provoking” the insurrection of January 6th. He also said that “the people who stormed this building believed they were acting on Trump’s wishes and instructions.” McConnell justified his vote to acquit by punting responsibility to the courts, saying the courts were a more appropriate venue for holding Trump accountable.
McConnell was wrong about the Senate’s role. The Senate was an appropriate venue for holding Trump accountable. That’s why the Constitution gave Congress that power through the impeachment and removal process. McConnell was punting responsibility and ducking the issue. He was kicking the problem down the road.
That brings us to this week: The House passed a bill to create an independent bipartisan commission to investigate the January 6 riot, but lots of Republicans, including McConnell, are trying to prevent such a commission from forming. Well. We know from the decades-long investigations into the Clintons that Republicans are not opposed to commissions and investigations as a matter of principle.
Fortunately, we have three branches of government, so if one branch engages in corruption, there are two other branches that can investigate and expose the truth. One branch, of course, is the executive branch, which fortunately is not controlled now by Republicans. What the executive branch, or Department of Justice, is doing is investigating the insurrection as a crime. Already 494 people have been criminally charged for their part in the insurrection. This is moving very fast for a major crime. Criminal investigations take time and the way prosecutors and investigators work with the foot soldiers and work up to the generals. It’s easier to arrest and prosecute the insurrectionists because we have pictures of them committing crimes. The higher-up people manipulating them have more deniability — which we will see when I get to Guiliani’s First Amendment defense.
The third branch, of course, is the judicial branch.
Rep. Eric Swalwell, D.-Calif., among others, took McConnell at his word. In March, Swalwell filed a lawsuit against Trump, and alleged co-conspirators Donald Trump Jr., Rep. Mo Brooks (R.-Ala.), and Rudy Giuliani. Swalwell was terrorized by the attack, and thus harmed by the riot. He alleged that the defendants’ actions and speeches, taken together, were responsible for the violence that ensued at the Capitol.
This week, Giuliani filed a motion to dismiss the suit against him. A motion to dismiss basically says, “They have no case, throw the whole thing out before wasting the court’s time.” In this motion to dismiss, Giuliani presents a First Amendment defense claiming that everything he said was protected speech. This is a civil case, but this is the same defense we can expect to see in any criminal prosecutions.
Okay, first a few of the key facts as they pertain to Rudy Giuliani. These facts are taken from Giuliani’s own brief.
January 6th, we know, was the day Congress was set to count the electoral votes and certify the election, which means declaring Biden the winner. One bit of law everyone agreed on was that once the election was certified, Trump could not become president. Biden would become president.
On January 6th, Trump held a rally called “Stop the Steal.” The rally was held in Washington D.C. shortly before Congress was set to count the votes and certify the election. Lots of Congressional Republicans encouraged their supporters to attend.
The evening before the riot, Giuliani tweeted a link to a YouTube video entitled “Watch this before January 6th.” The video falsely claimed that it was legal for Vice President Mike Pence to block the counting of the votes and to block the certification of the election. Giuliani retweeted the post later that night and again the following morning.
During his speech at the rally, Giuliani repeated these false claims. Specifically, he said, “It is perfectly appropriate given the questionable constitutionality of the Election Counting Act that the vice president can cast it aside. . .”
What Giuliani told the crowd was not true. Pence did not have the authority to set the law aside and not certify the election.
He then told the crowd exactly what he wanted: He wanted ten days to take the matter back to the states, which he said would give him time to prove that the election had been rigged. He then went on about how the Democrats rigged the election.
He talked about the fraud he would find if he had ten days. He also told the demonstrators “Let’s have trial by combat.” He also said this: “This has been a year in which they have invaded our freedom of speech, our freedom of religion, our freedom to move, our freedom to live. I’ll be darned if they’re going to take away our free and fair vote. And we’re going to fight to the very end to make sure that doesn’t happen.” Concluded the crowd to have the “courage it takes” to later be able to say, “I’m doing the best thing for myself, for my family, for my children, and most importantly, for the United States of America.”
Notice: Giuliani never actually said how he expected Congress to be stopped from certifying the election, other than to tell the crowd this misstatement of the law that Pence had the power to stop it. This of course riled up the crowd against Pence.
Unless I’m missing something—given the fact that Congress was clearly set to certify the election, and moreover, Pence correctly said he didn’t have the power to stop it and he wasn’t going to try—the only possible way the crowd could stop the certifying of the election was through intimidation. But notice. Giuliani never actually said that. But we can see what Giuliani and his co-defendants did: They called together a large crowd, riled them up, and told them Pence had the power to stop the certification of the election. Then at the end, Giuliani stood by as Trump told the rally-goers to “fight like hell” and “March down Pennsylvania Avenue . . . to the Capitol.”
Now let’s look at the law. The law says that speech is protected unless it “directed at inciting or producing imminent lawless action” and was “likely to incite or produce such action.”
The rule comes from a Supreme Court case called Brandenburg v. Ohio. Clarence Brandenburg was Ku Klux Klan leader. Brandenburg is the guy in the sheet. He’s standing with his friend, Richard Hanna.
Brandenburg was arrested and charged after addressing a small crowd in Ohio. He bemoaned the fate of the “White Caucasian race” and alluded to the possibility of what he called “revengeance” in the event that the federal government and courts continued to “suppress the white, Caucasian race.”
The Supreme Court held that his speech was protected because it was not “directed at inciting or producing imminent lawless action” and was not “likely to incite or produce such action.”
Why is this a good ruling? Because we don’t want to be able to haul people off to jail for saying things we don’t like. Think about how that could be weaponized by a would-be autocrat. Lack of freedom of speech protections is exactly how autocrats imprison political opponents.
You’re probably thinking, “Of course these guys incited imminent lawlessness. They riled the rally-goers and directed them to the Capital building just as the election was about to be certified. Does Rudy Giuliani expect the court to believe that it was pure coincidence that the rioters did exactly what he wanted them to do? Does he expect the court to be surprised that the rioters proceeded the only way they possibly could: By attempting to intimate Congress into abandoning the counting of the votes.
It seems like it shouldn’t be difficult for the plaintiffs to prove that Giuliani was part of a conspiracy to direct or encourage the rally-goers to interfere with the counting of the votes and the certifying of the election. After all, the only possible way to interpret the title of the rally, “Stop the Steal,” is as a call to stop that very counting. Why else did the defendants plan the rally for the day and time Congress planned to certify the election? Why else did they rile up the crowd and point them toward the Capitol after explaining why the counting had to be stopped? Why else did Giuliani repeatedly assure the crowd that Pence had the power to stop the process? How did Giuliani think this particular crowd supposed to pressure Pence?
Giuliani may have couched his language a bit—he’s a lawyer, after all— but the rioters got the message: It was up to them to prevent the election from being certified.
Giuliani writes in his motion there’s no plausible way to construe his speech before the Jan. 6 Capitol insurrection as “inciting a clear and present danger of violent mob action.”
This is where Giuliani gets the law wrong: To lose his First Amendment protection, his speech must simply incite lawlessness” or illegal behavior. He doesn’t need to have intended to incite a violent mob riot. This is a subtle but important point. Giuliani can point to his speech and everything he said and make a case that he in no way urged violence. But the legal question isn’t whether he incited violence. The legal question is whether he incited lawlessness.
As it turns out, we do have a law that specifically makes it illegal for two or more people to conspire to interfere with an official’s duties by means of threat or intimidation. No coincidence, this is what he is being charged with in this lawsuit. So if Giuliani and his co-defendants intended for this crowd to stop the counting of the votes and the certification of the election— and if there was no other way to do this without resorting to threats or intimidation— it would certainly seem that Giuliani was inciting imminent lawlessness.
So all the plaintiffs really have to do is show that Giuliani urged the crowd to stop the counting of the votes, and he had good reason to know that the only way the crowd could do that was through intimidation or threats.
I suspect that the defendants were hoping for a replay of what has been called the Brooks Brothers riot in Florida in 2000. That was when rioters orchestrated by the Bush campaign intimidated the Florida vote-counters into stopping their work, thus delaying the certification of Florida’s election, which then gave the Supreme Court time to step in and call off the count. If this was Giuliani’s goal, it would be unlawful.
Here is the context of his “trial by combat” comment:
His defense is that he said “trial by combat” in the context of finding fraud later. See why this is tricky? His defense is a bit stronger than it seems at first glance.
So what we have is a factual question. A jury’s job is to determine the facts. The factual question is this: Were Giuliani’s word directed toward stopping the vote with the understanding that the only means available to this crowd for doing that would be to intimidate members of Congress or to intimidate Pence into stopping the certification of the election?
Because this is a factual matter for the jury to decide, I do believe Giuliani’s motion to dismiss will be denied, but courts don’t always get things right.
If a court finds that Giuliani intended to stop the certification and he understood that the crowd would resort to intimidation, his First Amendment defense fails.
If his defense fails, he’s in trouble. He can then be held responsible for any violence that was foreseeable and resulted directly from what the rioters did. If his First Amendment defense fails here, it’s also likely to fail in a criminal matter.
So let me return to the questions I started with.
How long does justice take? Legal proceedings take time. Rule of law is slow and meticulous. Each motion requires an answer and a ruling. The only way for justice to be quick is in an autocracy.
Second, these questions are based on the false idea that the lying of Republicans can be resolved through the legal system. It can’t. Let me give you an example: Suppose Giuliani and Trump found guilty and put in jail. That will serve justice, but it won’t solve the large political problem.
The guys ⬇ are not going to say: “A court found Trump guilty, so I guess we should just break up the party and go home and start playing nice.”
A guilty verdict will change nothing for them, except they’ll be even angrier. They’ll call the trial a sham. They’ll say the judge was biased. They’ll say the jury was made up of Democrats. They’ll treat their leaders as victims and martyrs.
When I say this kind of thing on social media, people think I’m saying that they shouldn’t or won’t be prosecuted. What I’m saying is that prosecution will not solve our political problems. I’m also saying the fact that the wheels of justice turn slowly is not the cause of our political problems. Moreover, the fact that the legal system is imperfect (all institutions run by mortals are imperfect) is not the cause of our political problems.
Court victories will help, no doubt. They are likely to peel off some Republican support, and any of that we can do is helpful.
The reason democracy is in trouble is because so many people are continuing to vote Republican even after everything we know and have seen.
If the Republicans attracted 25% of the vote or even 35% instead of somewhere in the 40s, the Republican Party would shrivel and die. No amount of cheating or gerrymandering would help them because they wouldn’t have enough widespread support or political muscle to pull it off.
Political problems require political solutions. What do I mean? See this post. Mobilize voters. Look at Stacey Abrams. If Georgia turns bluer it will be because of her efforts.
Keeping democracy alive is a long, slow, uphill battle and there are no easy solutions.
