[News] Trump attorney says he won’t accept plea deal in Jan. 6 case ( thehill.com )

Nougat , 10 months ago

“[The indictment] has so many holes that we’re going to be identifying and litigating a number of motions that we’re going to file on First Amendment grounds, on the fact that President Trump is immune as president from being prosecuted in this way.”

There are three clear "wrongs" in this single sentence.

If you think the US Justice Department is going to indict a former US president for federal crimes related to that former president's attempting to overthrow an election that he lost, while he was still president, on any sort of shaky grounds, you are insane.

First Amendment protections of speech are limited, for good reason. If your speech is in support of a crime, the speech is a part of that crime, even if the speech all by itself is not criminal. Context is everything.

Just because someone is president, that does not mean that any actions that person takes while president are by definition legal, for all time. There is a US Justice Department policy to not indict a sitting president. This policy is arguably a good one, to avoid the US Justice Department from being able to hamstring an administration of its choosing, either on its own or due to political pressure from outside. The downside is that, as it stands, a sitting president can do whatever they want while in office, apparently up to and including overturning an election they lost. The standing policy depends on presidents acting in good faith and with decorum; that's been shown to be off the table now. And this is not a law or a requirement. It is an internal Justice Department policy.

Anyway - even with that policy in effect, nothing about it suggests that a former president would not be indicted for actions they took while president. If that were the case, it would mean that any president, once in office, could commit any crime whatsoever, openly and in public, with total impunity forever. This is clearly ridiculous; the repercussions would essentially destroy the nation.

That Trump's legal team is actually making this argument is insurrectionary. If they take this argument into court, and attempt to get the court to recognize it as a legal defense, I would argue that that action rises to the level of conspiracy to overthrow the government.