"FREE SPEECH" IS A MISNOMER

The media, (and my inbox) is chockablock full of discussions about whether indicting Trump or his acolytes is a politically wise thing to do, even assuming their guilt. 

Tribal warfare is at its peak. Even the obviously justified search of Trump's residence at Mara-a-Lago, (and I predict tomorrow's redacted affidavit will dramatically strengthen the public's perception of the soundness of the DOJ decision to seek the warrant) brought forth a rash of  political outrage, marked by social media threats of violence against government officials, including the men and women of the FBI.

And the outrage was shouted from the hill tops even though the DOJ sought the warrant only after the failure of extensive non-confrontational efforts to recover all the documents Trump stole. These non-invasive methods included i) discussions with the Trump team, ii) subpoenas (accepted by Trump), and iii) Trump lawyers' submission of assurances that all classified material had been returned to the government. (Those assurances turned out be be false.)

Ultimately the execution of the probable cause warrant signed by a judge has already revealed Trump's unquestioned guilt of stealing government records, obstructing government efforts to repossess those documents, etc.

Nevertheless, death threats against the FBI flooded social media, along with threats against the Attorney General and other government officials.  

Threatening to kill government personnel is hardly unique these days. It would appear that the cultural shift brought on by the prevalence of social media has encouraged the worms to come out from under their rocks. As a result, death threats have become everyday events.

The objects of these threats are all manner of people, from congressional leaders to vaccine supporters, from election workers to IRS clerks.  If you are a macho moron and either own an AR 15 or masturbate about the idea of owning one, then apparently you are now free to threaten the death of anyone you don't like this week.

And a federal statute supplies the gunpowder.

So we read of the arrest last week of one 46-yr.-old Adam Bies, of Mercer, Pennsylvania. Posting on the social media channel "Gab Social" under the user name "BlankFocus,'' Bies posted such items as, "If you work for the FBI, you deserve to die," and, referring to FBI agents, "My only goal is to kill more of them before I drop," and "HEY FEDS. We the people cannot wait to water the trees of liberty with your blood. I'll be waiting for you to kick down my door."

Happily,  Bies does not have to wait anymore. The FBI has taken him into custody, and charged him with threatening federal officials. He faces up to 10 years in jail.

But apparently, no charges have been brought against Gab, the social media conduit through which flowed the criminal threats. Why not?

Who or what is Gab Social? Wikipedia reports that Gab describes itself as "a social network that champions free-speech, unchecked liberty, the free flow of information online, and Christian values." 

Wikipedia also reports that Gab is "widely described as a haven for neo-Nazis, racists, white supremacists, white nationalists, antisemites, and alt-right supporters of Donald Trump." 

As to anti-semitism, Wikipedia reports that Gab posts were used in plotting the 2018 Pittsburgh synagogue massacre. Prominent among posts on its site was the one that read "Jews should be raised as livestock" in which the writer said he intended to destroy a "holohoax memorial."

With respect to the January 6 insurrection riot, Gab carried posts advising rioters which streets to use to escape from police, which tools to use to pry open the doors of the Capitol, and recommending carrying firearms into that building.

I mention the foregoing very brief  description of Gab (there are pages of this stuff on Wikipedia) so that it is clear that Bies's threats against the FBI published on Gab were hardly a "one-off." There is no question but that Gab knowingly published the criminal threats, and while author Bies faces 10 years in prison, his Gab publisher goes free--so far. 

How can that be? If Fox, NBC, or any other radio or TV network published criminal threats against the FBI, it surely would be indicted.  Why wasn't Gab? 

The federal criminal statute seems clear enough:

18 USC 875 (c) 

"Whoever transmits in interstate ... any communication containing… any threat to injure the person of another, shall be… imprisoned for not more than five years… "

But another federal statute plays a large role in facilitating hateful rage. Section 230 of the absurdly titled Communications Decency Act – has become the fertile ground for the development of the personal threats, tribal warfare, and conspiracy misinformation that threatens to overwhelm our democracy.

47 US Code, Section 230  reads, in part:

" (c) (1) No provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

In other words, apps like Gab, Twitter, Facebook, etc are treated by federal law as the equivalent of sacred community bulletin boards, and are immune from the civil liability that can be imposed upon those who post actionable material on the board. The statute immunizes only the owner of the bulletin board, not the person who posts the offending message on the board.

But the statute also reads (in Section (e): 

"Nothing in this section shall be construed to impair the enforcement of…any… Federal Criminal Statute."

So, if a "content provider" [Bies] uses the "interactive computer service" [Gab] to make threats that violate federal criminal  law, why are not both publishers indicted? Has the DOJ run out of lawyers, or is Merrick Garland being ultra-careful in poking at more hornets' nests?  Bies belongs in jail, and so does the owner of Gab! 

.............

As to the civil law, it's the statute itself that makes no sense. For example, Fox (not an "interactive computer service") can be, and is, properly enough, being sued for billions for publishing libelous conspiracy statements about vote-counting machines. But Gab would get a free ride to publish the same false statements posted by a content provider, because the statute says Gab is not considered the "publisher" of the libel.  (I.e., Gab is the statute-immunized "bulletin board" of the statements made by those who post libelous messages on its board!)

Can anybody make sense of that? I can't. People injured by social media statements should have the right to pursue the authors and publishers of those injurious false statements. 

Another example:

When Alex Jones said, on the radio, that nobody was killed in the Sandy Hook school shooting, and it was all an "act," he got tagged in a libel suit for millions in damages by Sandy Hook parents whose children were murdered. It was not only what Jones said that got him caught, it was where he said it--on the radio. Had Jones been running a bulletin board app like Twitter or Gab, and published the very same words, which had been posted by one of his users, Jones would have been immune from liability!

Is that ridiculous, or what?

The result?

As long as we have Section 230, boards like Gab (and there are many of them) are free to encourage their consumers to invent a "handle" and populate the metaverse with conspiracy lies and borderline threats that feed division and hate.

This much is not debatable: when the Founders added the First Amendment, they did not intend to immunize libel or threats from either civil or criminal liability. 

Words have meaning. They have the power to injure and to kill. 

Section 230 was enacted 26 years ago to spur growth of the infant technology called "the internet." Whether it was then a wise piece of legislation is now irrelevant. What is important today is that it has morphed into a nightmare weapon used by some to generate the hate and misinformation that threatens the viability of our political system. 

And please permit the repetition: Section 230 had no more Constitutional basis when it was enacted in 1996 than it does now.  

"Out, out, damned spot!"

A bientôt.

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THE SHADOW KNOWS

A lotta decades ago, some of us entertained ourselves by listening to the radio. One of my favorite programs was an ingenious fantasy entitled “The Shadow,” the hero of which brought crooks to heel via "The hypnotic power to cloud men's minds so they cannot see him." 

Today we have a live anti-hero who apparently bears a similar talent: He apparently has The hypnotic power to cloud men's minds so they cannot see the truth.

Let’s look at the latest issue that has the wingnuts in a frenzy: The Mar-a-Lago search warrant.  Here are some of the clouds issued by the Trump fog-machine:

i)"There was a standing order. Everything that left the White House and shipped to my home in Florida was declassified by me."

and

ii) "This is a witchhunt. I have no classified material."

and

iii) A written statement given to the government by a Trump lawyer before the search: "All classified documents have been returned."

It is not surprising that every statement cited above, made by Trump or his lawyer, was absolutely false.

He did not declassify all the documents sent to his home in Florida. We know that because in executing the search warrant the FBI found numerous grades of classified documents, including some so sensitive they may be viewed only in specially sealed rooms. None had been de-classified in accordance with appropriate procedures.

So the statements made by Trump and his legal team were lies. (And the written assurance given to the government was a criminal act. In my view, not only is the lawyer who made that statement guilty of a crime, but Trump, knowing of his lawyer's representation to the government, and not promptly withdrawing it, has adopted that statement, and he too is indictable under 18 USC 1001.

But all of this discussion about classified documents is classic Trumpian fog. It’s all bullshit intended to cloud the public mind. While the classification of the documents taken by the FBI in executing the warrant may give an indication of how serious Tump’s criminal activity was, it has nothing to do with the question of whether Trump’s possession of the documents was criminal. Whether a seized document was classified or not, has nothing to do with the propriety of the court-ordered search warrant.

While the government is working on the submission of a redacted affidavit supporting the search warrant, we know from the face of the warrant already made public that the probable cause that a crime had been committed and the probable cause that evidence of the crime would be found in Mar-a-Lago– was not based on the criminal statutes involving classified documents. The criminal conduct involved in the granting of the search warrant had to do with Trump’s theft of government records, classified or not.

Let's start with the Presidential Records Act, 44 U.S. Code, Sections 2201-2209,  passed during the Reagan administration in 1981, and amended during the Obama administration in 2014. The PRA:

1. Establishes public ownership of all presidential records,

2. Places the responsibility for the custody and management of such records with the president, and, 

3. Establishes that presidential records automatically transfer into the legal custody of the archivist as soon as the president leaves office."

Bottom line: all of the records seized by the FBI's execution of the search warrant had been stolen by Trump. They didn't belong to him, they belonged to the United States government, and it was his duty to see to it that they were delivered to the National Archivist on January 20, 2021. 

In other words, whether the records bore the title "classified", "top-secret" or any similar phrase, is totally irrelevant. None of the statutes cited in the warrant mention the word “classified”, or any such lingo. The fact is, Trump stole government property, and then obfuscated and grifted in the effort to obstruct the government's recovery of the material. In doing it doing so, he violated the criminal statutes cited on the face of the warrant.

The warrant lists three criminal statutes. The judge who issued the warrant found there was probable cause to believe that Trump was guilty of violating one or more of those statutes, and there was probable cause to believe that evidence of that crime was to be found at Trump’s residence.

The three criminal statutes that appear on the face of the warrant are as follows: 

The Espionage Act: 18 US Code, Section 793 (e) and (f):

"Whoever having unauthorized possession of … any document… which information the possessor has reason to believe could be used… to the advantage of any foreign nation, willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it, or,\ through gross negligence permits the same to be removed from its proper place of custody,…or 

(f) having knowledge that the same has been illegally removed… fails to make prompt report of such loss… shall be …imprisoned not more than 10 years… ."

18 US Code, Section 1519:

Whoever knowingly conceals… any record… with the intent to impede, obstruct… the investigation or the proper administration of any matter within the jurisdiction of any department or agency of the United States [including the National Archivist]… shall be… Imprisoned not more than 20 years…"

18 United States Code, Section 2071:

(a) Whoever willfully and unlawfully conceals, removes, or… takes and carries away any record… paper, document ...  deposited… in any public office, or with any… public officer of the United States. shall be …imprisoned not more than three years … .

(b) Whoever having the custody of any such record… document, paper, ... willfully and unlawfully conceals or destroys the same… shall… be imprisoned for not more than three years and be disqualified from holding any office under the United States … ."

 Let's face it. There is no doubt our former president is a thief and a liar,-- a scoundrel who places his own best interests (whatever they may be) above the interests of the United States of America, his duties under the Constitution, and his oath of office.

Article II, Section 3, of the Constitution requires the president to “take care that the laws be faithfully executed." Time and time again Trump has mocked that command, and further, has succeeded in clouding the minds of his followers on the subject of his own violation of our criminal laws, as well as his evidence-free preposterous claims he won the last election.

And once again the only question remaining is whether the Department of Justice dares risk an "uprising" by the beclouded Trumpian extreme right.

When you add this nefarious theft to the clutch of Trump's January 6 crimes, I continue to believe that we have no choice but to face the music. If we do not indict this criminal, then we have lost our national culture, our Constitution,  and our democracy.

A bientot.

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THREE RING CIRCUS

Actually, “three rings" is an understatement. Trump is everywhere. Let’s remember:

One: The Atlanta criminal investigation into the efforts of Trump's acolytes to corrupt the Georgia vote count in 2020.

Two: The January 6 committee revelations concerning the Trump/Eastman/Meadows effort to send fake electors to the Congress.

Three: The conspiracy to march on the Capitol, intimidate the Vice President who was to count electors, and break into the building, threatening the safety of the assembled Congressmen and Senators.

Four: The failure of the President to stop the violence, and his suggestion that Pence deserved hanging because he refused to ignore the will of the voters.

Five: The grand jury investigation in New York County which the pusillanimous D.A. Bragg aborted.

Six: The civil investigation by the New York State Attorney General, in which Trump ate his words, and took the Fifth Amendment some 400 times with respect to questions about his defrauding banks, and other inquiries about his shady business practices.

Seven: Lots of other stuff that doesn't come to mind at the moment, so let's get down to today's headlines. What is going on?

Here is what we know, despite the bleatings of the lunatic Right-wingnuts:

When he left the White House on the morning of January 20, and perhaps in the days just before that, Trump took a truckload of White House documents and apparently stored them at his home in Florida. The government was upset. The National Archives complained that many, if not all of the documents were the property of the federal government, not the personal property of the former president, and sought the return of the documents. Negotiations were pursued, and Trump returned 15 boxes of documents to the government.

Apparently, the government was not satisfied that Trump had fully complied with the agreement, if any, reached in those discussions, and, in June 2022, a grand jury issued a subpoena for the remaining documents.

It is clear the government believed that Trump failed to comply with that grand jury subpoena (that, of course, would be a separate crime,) and the DOJ went to court and procured a search warrant. The warrant remains under seal. We do know from press reports quoting a Trump spokesperson, that the warrant directed the seizure of evidence from Trump’s Florida home and that FBI agents removed a number of documents. Trump was not present during the search, but his lawyer was.

The Trump team went ballistic in the media. It accused the FBI of political foul play, it accused the FBI head, Christopher Wray (appointed by  President Donald Trump) of playing politics, and even accused the FBI of planting documents. 

We do not know what documents the FBI took. All we know from Trump-team public complaints is that the feebs broke into a safe in the Trump residence, and they messed up Melania's clothes closet.

In response to days of Republican outrage at this “unjustified raid,” Attorney General Garland made a statement assuring the public that this was really a big deal and that he personally approved the warrant. To spike the Republican conspiracy claims, Garland moved the court to unseal two of the three documents involved in the execution of the search warrant.

First, Garland asked the court to allow him to unseal the warrant itself, (the document signed by a judge that designated the place to be searched and what the searchers should look for).

 Second, Garland asked the court to unseal the receipt that specified everything the FBI searchers took in executing the warrant. (Trump, of course, had both documents and was free to publish them anytime he wanted, but he failed to do so.)

Presumably, we will know by 3 PM today whether Trump consents to the Department of Justice application to unseal the warrant and the receipt. If Trump doesn't consent the matter will be litigated. If he does consent the documents will become public and we will get some facts and hints as to why Trump “stole” the documents.

So far, we know nothing as to the content of the seized documents. The press is rife with rumors, and the leading one so far is the documents relate, in one manner or another, to America's nuclear secrets. There is even speculation that they have something to do with a reported 2019 negotiation to turn our secrets over to Saudi Arabia as part of a business deal in which Jared Kushner was involved.

But the most important document in the process was not part of the government’s unsealing request. That is the affidavit the government was required to submit to the court in order to obtain the warrant. That affidavit presumably would reveal not only what the government was looking for, but it would contain facts that supported the judicial finding that there was “probable cause" to believe that i) a crime had been committed, and that ii) evidence of that crime was likely to be found at the premises to be searched. 

It is also likely the affidavit would supply information as to which member or members of the Trump team ratted him out and informed the government that Trump not only violated his assurances earlier given to the government but that he had violated his obligation to comply with the grand jury subpoena served on him in June. The net result is we may not learn the really good stuff unless and until Trump is indicted.

Finally, I cannot help but let my imagination go to the limit of its capacity. The motion to unseal the warrant is signed by two government lawyers. The first is the United States attorney for the District of Columbia. No surprise there, he is the chief federal criminal prosecutor for the district. 

The second signatory however raises an interesting question. He is Jay L. Bratt, and his title is Chief of the "Counter-intelligence" section of the National Security Division of the United States Department of Justice. 

Have you ever really looked into the definition of “Counter-intelligence”? I always assumed that it involved resisting foreign countries’ efforts to spy or perpetrate espionage on the United States. But to be certain, this morning I went to the Department of Justice website and looked it up. Here is how the DOJ defines "Counter-intelligence":

 “The objectives of counter-intelligence are to assess the country’s vulnerability to foreign espionage, to watch for sabotage, and to identify those determined to undermine the established system of government …… The function of the counterintelligence activity proper is solely the production of knowledge about the plans, operations, and capabilities of organizations intent on subversive activities."

Hmm…. "Identify those determined to undermine the established system of government"? …”The production of knowledge about the plans, operations, and capability of organizations intent on subversive activities"?

Does that ring a bell? Doesn’t “determined to undermine our established system of government” include interference with the orderly transition of power? Does anyone come to mind who might have "knowledge about the plans, operations, and capabilities of organizations intent on subversive activities"?

Do the names of individuals and organizations such as Trump, Eastman, Giuliani, Oath Keepers, and Proud Boys come to mind?

If it doesn’t, it should. 

A bientot.

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LOCK EM UP, ALL OF THEM!

Media correspondents continue to flay their audiences with the mistaken notion that to prove Trump committed a crime, the government must prove that he subjectively knew his conduct was criminal. For sure, to convict a defendant the government must prove “criminal intent" but the phrase is misleading. It does not mean a defendant must intend to commit a crime. It does not mean the government must find a signed confession or a witness who says that the defendant told him ‘I know it's a crime, but I'm going to do it anyway."

To prove criminal intent, all the government has to do is prove that the defendant knew the facts that constitute the criminal behavior. The prosecution doesn't even have to prove "willful blindness". No amount of "blindness" of legal consequences will immunize a defendant from conviction. It's just not enough to say (or even prove) "Gee, I didn't know that was illegal." Or "my lawyer said it was okay and I believed him." It's knowledge of the facts that matter.

When a defendant goes into a bank, points a weapon, and demands the teller give him $10,000, that's a crime, even if that defendant believes the bank has screwed him on a prior transaction and he was simply recovering his own money. 

When Trump demands his vice president reject valid electoral college ballots, he attempts wrongfully to influence an official proceeding, and the penalty for that is up to 20 years in jail. When he encourages an armed mob to rush the Capitol building because Pence has rejected his plea, that's simply more evidence of his statutory violation. And the failure to prevent the mob violence he was watching live on television is yet further evidence of an attempt wrongfully to influence the counting of the ballots. 

It is hardly a defense for him to say "Gee I really thought that what I was doing was okay." The Supreme Court has made that clear. Writing of the need of the government to prove "criminal intent," the court has said:

"This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim ''Ignorance of the law is no excuse" typically holds true. Instead, our cases have explained that a defendant generally must "know the facts that make his conduct fit the definition of the offense," even if he does not know that those facts give rise to a crime." (Elonis v US, 575 US 723,735 (2015).

(And on top of that, there is evidence that Trump was told, even by his own lawyer, that his plan of action was criminal.)

There's lots more evidence of Trump's criminality and I need not list it here. The riveting January 6 hearings were valuable in showing us evidence of Trump's complicity, and the Committee apparently has a lot more to tell us. And most important, I believe the Department of Justice has lots, lots more.

The real question is the political one. Do we damage the body politic by prosecuting a former president – a president who lost the election to the party that now stands in a position to prosecute him? It has never been done before. But we never had a civil war before we had a civil war, and this conspiracy is every bit as dangerous as that one.

This is not about one man. This is about a cabal, and the cabal goes beyond insiders like Meadows, Giuliani, Eastman, et al.

The most distressing news of the week was the revelation that law enforcement agencies were involved in the cover-up of the conspiracy. The notion that Secret Service personnel obstructed justice by destroying January 6 text messages they had been instructed to maintain, is shocking. Even worse, we now know that the leadership of the Department of Homeland Security is equally guilty. That criminal behavior by high-ranking government officials who are responsible for the security of our nation is troubling evidence of the scope of this conspiracy.

The Department of Justice has charged more than 800 people with the invasion of the Capitol but there's lots more to be done. Garland has indicted the soldiers, but so far the generals are at liberty.

There is no doubt that an indictment of Trump, his legal team, a half dozen Congressman, leaders of our security forces, etc. will be a monumental scandal. And whatever adverse political consequences may flow from the indictment of Trump, the indictment of his acolytes will accentuate our political division.

But the measure of this scandal, I submit, argues persuasively for the prosecution of every person involved in this attempt to destroy our Constitution.

On balance, a failure to prosecute would be far worse for the future of our democracy than a decision to forgo prosecution. This criminal conspiracy is too big, too dangerous to ignore. A decision to let Trump and his co-conspirators escape the consequences of their criminal conduct will do far more damage to the preservation of our democracy than would a decision to do justice.

Lock em up! 

A bientot.

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