Posted on Jan 10, 2022
Trump's potential liability for Capitol riot faces major test in court
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The judge in the lawsuitsTrump is trying to get immunity for January 6th:
"During a court hearing Monday, Judge Amit Mehta pointed out repeatedly that Trump on January 6 asked the crowd to march to the Capitol, but that he didn’t speak up for two hours asking people to stop the violence.
“The words are hard to walk back,” Mehta said. “You have an almost two-hour window where the President does not say, ‘Stop, get out of the Capitol. This is not what I wanted you to do.'”
“What do I do about the fact the President didn’t denounce the conduct immediately … and sent a tweet that arguably exacerbated things?” the judge asked. “Isn’t that, from a plausibility standpoint, that the President plausibly agreed with the conduct of the people inside the Capitol that day?”"
"During a court hearing Monday, Judge Amit Mehta pointed out repeatedly that Trump on January 6 asked the crowd to march to the Capitol, but that he didn’t speak up for two hours asking people to stop the violence.
“The words are hard to walk back,” Mehta said. “You have an almost two-hour window where the President does not say, ‘Stop, get out of the Capitol. This is not what I wanted you to do.'”
“What do I do about the fact the President didn’t denounce the conduct immediately … and sent a tweet that arguably exacerbated things?” the judge asked. “Isn’t that, from a plausibility standpoint, that the President plausibly agreed with the conduct of the people inside the Capitol that day?”"
Trump's potential liability for Capitol riot faces major test in court
Posted from wishtv.com
Donald Trump
Election 2020
Posted 3 y ago
Responses: 3
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Pasting a Penn State essay about OJ Simpson cases and criminal vs. civil law. While Donald Trump is accused of inciting a riot instead of committing a homicide, RP people need to understand it is not about prosecutors needing to have burden of proof, but about plaintiffs with preponderance of evidence.
https://sites.psu.edu/emberpassion/2020/01/30/the-o-j-simpson-trial-distinctions-between-criminal-and-civil-law/
https://sites.psu.edu/emberpassion/2020/01/30/the-o-j-simpson-trial-distinctions-between-criminal-and-civil-law/
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Maj John Bell
When it comes to matters of free speech as a basis of civil liability, historically the "Brandenburg Test" [ Brandenburg v. Ohio, 395 US 444 (1969)] has held sway. Of particular note is the third element of the Brandenburg Test:
"The speaker must directly advocate lawless action and not simply express a provocative or unpopular view that may result in public disorder."
In a civil case what changes is not the definition of "incitement" but the standard of proof. It shifts from beyond a reasonable doubt, to the preponderance of the evidence. The speaker must intend that other commit an offense causing physical. monetary or emotional injury. And their intentionality need not be expressed via an instruction for the specific offense committed but must be clearly implicitly understood.
Maybe there is proof, but so far, we get the same "nothing burger" from every one of Speaker Pelosi's attempts at a bloodless coup; claims of a mountain of evidence that never materialize.
"The speaker must directly advocate lawless action and not simply express a provocative or unpopular view that may result in public disorder."
In a civil case what changes is not the definition of "incitement" but the standard of proof. It shifts from beyond a reasonable doubt, to the preponderance of the evidence. The speaker must intend that other commit an offense causing physical. monetary or emotional injury. And their intentionality need not be expressed via an instruction for the specific offense committed but must be clearly implicitly understood.
Maybe there is proof, but so far, we get the same "nothing burger" from every one of Speaker Pelosi's attempts at a bloodless coup; claims of a mountain of evidence that never materialize.
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SPC Kevin Ford
Maj John Bell - I suspect that this time Brandenburg isn't the hurdle you think it is. That goes right to the comments from the judge. He was not only bringing up the words spoken at the rally but also Trump's conduct after. Ultimately that is a way to get to state of mind, did he intend for his audience to perform lawless actions by what he said?
It's not the first time Trump's speech was put against that test. Last time he prevailed as a lot of his speech is "nudge, nudge, wink, wink'. It is very hard to pin down. But this time he directly had the opportunity to correct the misconception that marching in that way is not what he meant. His failure to act when he had a duty to do is telling.
It's not the first time Trump's speech was put against that test. Last time he prevailed as a lot of his speech is "nudge, nudge, wink, wink'. It is very hard to pin down. But this time he directly had the opportunity to correct the misconception that marching in that way is not what he meant. His failure to act when he had a duty to do is telling.
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He may be a liability but the new 'left of Lenin' Democrats in name only are trying to push stuff that Independents and moderate Republicans View as socialism and taking over the country (and taking away our existing freedoms/checks and balances) one law at a time. Centralizing the Voting is against the Constitution. Allowing citizens to vote without an ID is one of the many schemes the Democrats want as well as fast-tracking 10 million illegal aliens to be American citizens hoping that would help thicken the ranks of the pseudo-freedom loving Democrats. LTC Eugene Chu SGT Charlie Lee SPC Kevin Ford Maj John Bell MSgt Robert "Rock" Aldi
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Maj John Bell
SPC Kevin Ford - I believe this entire discussion has been about the 2020 election. Has Texas allowed the able-bodied to vote from their vehicles prior to the 2020 election? It strikes me as an unsustainable manpower burden for polling station workers (who I believe are mostly volunteers).
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SPC Kevin Ford
Maj John Bell - It seems to have been a COVID response. From what I can tell by reading around it was always intended to be a feature for people with disabilities that was repurposed for COVID.
The law had read:
"physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health.”
They likely used that in COVID due to disease transmission impacting health of voters.
https://www.khou.com/article/news/politics/elections/texas-republicans-last-minute-challenge-to-drive-thru-voting-in-harris-county-dismissed-by-appeals-court/285-38a7c496-cdc4-42e4-ac4a-767ca2240f8b
The law had read:
"physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health.”
They likely used that in COVID due to disease transmission impacting health of voters.
https://www.khou.com/article/news/politics/elections/texas-republicans-last-minute-challenge-to-drive-thru-voting-in-harris-county-dismissed-by-appeals-court/285-38a7c496-cdc4-42e4-ac4a-767ca2240f8b
Texas Republicans' last-minute challenge to drive-thru voting in Harris County dismissed by...
The court filing from just before early voting began was the latest GOP effort to tamp down voting options in the state's most populous county.
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LTC (Join to see)
Maj John Bell President Biden going to Georgia after their college team one is kind of funny when the laws in New Hampshire are stricter than the ones in Georgia.
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LTC (Join to see)
LTC (Join to see) New York laws are also reported to be stricter than Georgia and those rules were set by democrats. People are going to see right through this and that's why the Democrats are pushing these rule changes because they know the Democratic Fanny's are going to be burned in November of this year due to their stupid policies and lack of competence especially with the brokeback Joe Biden Administration
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Read the text of his speech given January 6. Look for the word "peacefully."
Legal definition of incitement:
As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
Source: 18 U.S. Code § 2102.Definitions
Legal definition of incitement:
As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
Source: 18 U.S. Code § 2102.Definitions
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SPC Kevin Ford
Maj John Bell -
You stated:
"Legal definitions are legal definitions. Tell me where I'm wrong. But please tell me the credible basis of your "legal" opinion?"
To be clear I'm not a lawyer and have never claimed to be. I am a knowledgable amateur.
Where definitions come from is important. That is a statutory definition. Statutory definitions can vary from statute to statute. Unless a statutory definition finds its way into the common law (very possible), statutory definitions tend to apply to the statutes they are defined in. In this case within criminal.
Being able to show that Trump's actions match a legal description of incitement in criminal law isn't material to this type of civil case.
You stated:
"My best guess, a handful went to the Capitol with the specific intent to go too far, if the opportunity presented itself."
That's pretty much my take on it as well. Most people who were there acted well within their rights. A much smaller number just got carried away. A much smaller number than that came with the intent to do more nefarious things.
You stated in relation to governor's changing rules:
"But when it comes to law, I don't give a damn if your heart is in the right place. Follow the law or change it through LEGAL processes."
They would argue (including in court) that they did have legal emergency executive powers. In some cases the argument prevailed and sometimes it doesn't. The legal emergency powers authority of governors and the president is a tricky area. One that is constantly being challenged in court.
Having said that for the most part the changes were examined in court. Sometimes they prevailed and sometimes they had to walk them back. It's not like most of these were last minute changes. But instead could be (and in many cases were) litigated before the election.
You stated:
"In my opinion, there was nothing in President Trump's speech that told those people directly or through a "dog whistle" to forcibly enter the capitol and do what they did. Were his words "unwise." Hell yes, President Trump has an undisciplined mouth."
That's not good for Trump. As I mentioned before he does a lot of "nudge, nudge, wink, wink" type of speech. It can be hard to tie down, you are absolutely right about that. That's why looking at his actions afterward talk to his state of mind and intent of that speech.
You stated:
"Legal definitions are legal definitions. Tell me where I'm wrong. But please tell me the credible basis of your "legal" opinion?"
To be clear I'm not a lawyer and have never claimed to be. I am a knowledgable amateur.
Where definitions come from is important. That is a statutory definition. Statutory definitions can vary from statute to statute. Unless a statutory definition finds its way into the common law (very possible), statutory definitions tend to apply to the statutes they are defined in. In this case within criminal.
Being able to show that Trump's actions match a legal description of incitement in criminal law isn't material to this type of civil case.
You stated:
"My best guess, a handful went to the Capitol with the specific intent to go too far, if the opportunity presented itself."
That's pretty much my take on it as well. Most people who were there acted well within their rights. A much smaller number just got carried away. A much smaller number than that came with the intent to do more nefarious things.
You stated in relation to governor's changing rules:
"But when it comes to law, I don't give a damn if your heart is in the right place. Follow the law or change it through LEGAL processes."
They would argue (including in court) that they did have legal emergency executive powers. In some cases the argument prevailed and sometimes it doesn't. The legal emergency powers authority of governors and the president is a tricky area. One that is constantly being challenged in court.
Having said that for the most part the changes were examined in court. Sometimes they prevailed and sometimes they had to walk them back. It's not like most of these were last minute changes. But instead could be (and in many cases were) litigated before the election.
You stated:
"In my opinion, there was nothing in President Trump's speech that told those people directly or through a "dog whistle" to forcibly enter the capitol and do what they did. Were his words "unwise." Hell yes, President Trump has an undisciplined mouth."
That's not good for Trump. As I mentioned before he does a lot of "nudge, nudge, wink, wink" type of speech. It can be hard to tie down, you are absolutely right about that. That's why looking at his actions afterward talk to his state of mind and intent of that speech.
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Maj John Bell
SPC Kevin Ford
Well... at least in my state, Governor Whitmer lost the argument that she had the emergency executive powers. The legislature was able to prevail and then realized the danger of a state executive branch that does not feel constrained by the state Constitution and State law. Almost all of the governor's emergency powers require legislative review and approval within 30 days or less and some areas are now completely off-limits.
One of the misfortunes of our political system is that party loyalty often wins out over loyalty to the law and the constituents. Democrat Attorneys-General are unlikely to challenge Democrat Governors and Democrat Secretaries-of-State.
You said for the most part the changes were examined in court. I am unaware of a single case where the changes to election law were challenged, and the executive branch won out. Can you point specific examples where the emergency powers of the state governor or secretary of state, in relation to election law was upheld against a legal challenge?
Well... at least in my state, Governor Whitmer lost the argument that she had the emergency executive powers. The legislature was able to prevail and then realized the danger of a state executive branch that does not feel constrained by the state Constitution and State law. Almost all of the governor's emergency powers require legislative review and approval within 30 days or less and some areas are now completely off-limits.
One of the misfortunes of our political system is that party loyalty often wins out over loyalty to the law and the constituents. Democrat Attorneys-General are unlikely to challenge Democrat Governors and Democrat Secretaries-of-State.
You said for the most part the changes were examined in court. I am unaware of a single case where the changes to election law were challenged, and the executive branch won out. Can you point specific examples where the emergency powers of the state governor or secretary of state, in relation to election law was upheld against a legal challenge?
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SPC Kevin Ford
Maj John Bell -
You stated:
"Well... at least in my state, Governor Whitmer lost the argument that she had the emergency executive powers. "
Yes, that case hinged on the wording of the MI constitution. The interesting thing is that the case was resolved a month before the election.
You stated:
"One of the misfortunes of our political system is that party loyalty often wins out over loyalty to the law and the constituents. Democrat Attorneys-General are unlikely to challenge Democrat Governors and Democrat Secretaries-of-State."
I'd argue that is clearly not true. For the most part it was Republican election officials that certified the votes in many of the contested states. They did it despite a large amount of pressure being exerted on them to find a way to swing it to Trump. Those are the real heros of the last election; a group of Republicans who held their ground over immense political pressure against their own party. Like most people who take a stand on principle, they paid a price for having done so.
You stated:
"I am unaware of a single case where the changes to election law were challenged, and the executive branch won out. Can you point specific examples where the emergency powers of the state governor or secretary of state, in relation to election law was upheld against a legal challenge?"
The PA governor prevailed in the PA supreme court. This same case was what allowed the Governor to do COVID related election changes. That's why Republicans then changed the PA Constitution. The governor no longer has those powers but in 2020 he did.
https://www.witf.org/2020/07/01/pa-supreme-court-sides-with-governor-in-dispute-over-emergency-powers/
NC and PA won their cases in the US SCOTUS that they had emergency powers to extend the receipt of absentee ballots. By not taking those cases, they let the status quo stance and tacitly let the emergency powers stand.
"“In the past three years alone, the board has twice extended the absentee-ballot receipt deadline after hurricanes hit the state’s coast,” its brief said. “No one challenged those extensions.”"
https://www.nytimes.com/2020/10/28/us/supreme-court-pennsylvania-north-carolina-absentee-ballots.html
You stated:
"Well... at least in my state, Governor Whitmer lost the argument that she had the emergency executive powers. "
Yes, that case hinged on the wording of the MI constitution. The interesting thing is that the case was resolved a month before the election.
You stated:
"One of the misfortunes of our political system is that party loyalty often wins out over loyalty to the law and the constituents. Democrat Attorneys-General are unlikely to challenge Democrat Governors and Democrat Secretaries-of-State."
I'd argue that is clearly not true. For the most part it was Republican election officials that certified the votes in many of the contested states. They did it despite a large amount of pressure being exerted on them to find a way to swing it to Trump. Those are the real heros of the last election; a group of Republicans who held their ground over immense political pressure against their own party. Like most people who take a stand on principle, they paid a price for having done so.
You stated:
"I am unaware of a single case where the changes to election law were challenged, and the executive branch won out. Can you point specific examples where the emergency powers of the state governor or secretary of state, in relation to election law was upheld against a legal challenge?"
The PA governor prevailed in the PA supreme court. This same case was what allowed the Governor to do COVID related election changes. That's why Republicans then changed the PA Constitution. The governor no longer has those powers but in 2020 he did.
https://www.witf.org/2020/07/01/pa-supreme-court-sides-with-governor-in-dispute-over-emergency-powers/
NC and PA won their cases in the US SCOTUS that they had emergency powers to extend the receipt of absentee ballots. By not taking those cases, they let the status quo stance and tacitly let the emergency powers stand.
"“In the past three years alone, the board has twice extended the absentee-ballot receipt deadline after hurricanes hit the state’s coast,” its brief said. “No one challenged those extensions.”"
https://www.nytimes.com/2020/10/28/us/supreme-court-pennsylvania-north-carolina-absentee-ballots.html
Pa. Supreme Court sides with governor in dispute over emergency powers | WITF
The Pennsylvania Supreme Court sided with Gov. Tom Wolf in a dispute with the legislature over the extent of his emergency powers, bolstering the […]
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Maj John Bell
SPC Kevin Ford - I was not speaking of challenges to the vote. I was speaking of challenges to changes in the election procedures without the legislature changing the law.
The changes that Governor Wolf "put into place" were nothing more than a change to the Pennsylvania election laws passed in October 2019, Act 77. Governor Wolf used no emergency powers, he acted within the law established by Act 77.
The article you cited doesn't mention any challenge to the PA executive branch dismissing election laws due to the pandemic.
Can't read the NYT article because of the pay wall.
If you're talking about deadline extensions, I think you win the point on whether it or not the Democrats held off challenges. My opinion means nothing, but was anyone surprised by COVID by late summer/early fall that COVID was screwing things up? I question the need for deadline extensions, but I don't think that was something nefarious on the part of the Democrats.
https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2019&sessInd=0&act=77
The changes that Governor Wolf "put into place" were nothing more than a change to the Pennsylvania election laws passed in October 2019, Act 77. Governor Wolf used no emergency powers, he acted within the law established by Act 77.
The article you cited doesn't mention any challenge to the PA executive branch dismissing election laws due to the pandemic.
Can't read the NYT article because of the pay wall.
If you're talking about deadline extensions, I think you win the point on whether it or not the Democrats held off challenges. My opinion means nothing, but was anyone surprised by COVID by late summer/early fall that COVID was screwing things up? I question the need for deadline extensions, but I don't think that was something nefarious on the part of the Democrats.
https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2019&sessInd=0&act=77
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