Trump’s free speech defense is unlikely to succeed

It seems clear that serial sex abuser Donald Trump (SSAT) lawyers are going to make a free speech defense in his trial for his role in the January 6th riot and efforts to overturn the election, arguing that all he did was talk and that others were the ones who did things. But legal experts say that that will not wash.

“The indictment very carefully ties the words of Trump and others to actions that show that Trump and others said the things they said with the intent to carry out criminal activity,” [former federal prosecutor Christine] Adams said. “Notwithstanding the First Amendment, people are charged all the time with crimes based on their statements to others for example if they’re involved with a Ponzi scheme, if the government can establish the requisite criminal intent in making those statements.”

“This isn’t a reasonable argument, and it won’t fly in any court of law,” Anthony Michael Kreis, a Georgia State University law professor, told Salon.”The speech at the heart of the indictment informs the underlying criminal conspiracy and the indictment outlines conduct that was undertaken in furtherance of that conspiracy. The argument is without merit.”

Kreis pointed to the example of a person joking about robbing banks, which would be protected free speech since it lacks criminal intent. He added that a person can even explain why it should be lawful to rob banks or praise bank robbers, and that is protected political speech. 

“However, a person cannot walk into a bank and say, ‘stick ’em up,’ and then cling to the First Amendment’s protections nor can two people plan to rob a bank and then claim they were just engaged in constitutionally protected thought,” Kreis said. 

Adanté Pointer, an Oakland civil rights attorney, said that while everyone has a Constitutional right to express their opinions, you cross the line from “constitutionally-protected speech to criminal conduct” when your motive and intent are in furtherance of a criminal conspiracy.

“Things changed when he weaponized his baseless statements to promote lawless activity, to present false evidence to the courts, and to recruit and direct fake electors and other co-conspirators to carry out the fraud,” Pointer said. 

I have noticed that following the most recent indictment, SSAT’s rivals for the nomination have started to be more critical. His former vice-president Mike Pence has criticized SSAT’s “gaggle of crackpot lawyers” who tried to pressure him into rejecting the electoral college votes.

“Contemporaneous notes” taken by Pence, and referred to in the indictment, document how Trump and his advisers pressured Pence to reject the certification of the election in January, which could have resulted in the House of Representatives handing Trump a second-term in office.

On Wednesday, as Trump and his legal team attempted to downplay those efforts – one of Trump’s lawyers suggested that they only asked Pence to do “pause the voting” on January 6 – the usually meek Pence reacted angrily.

“Let’s be clear on this point. It wasn’t just that they asked for a pause,” he told Fox News.

“The president specifically asked me, and his gaggle of crackpot lawyers asked me, to literally reject votes, which would have resulted in the issue being turned over to the House of Representatives, and literally chaos would have ensued.”

One of those crackpot lawyers Rudy Giuliani has hit back childishly, suggesting that Pence is controlled by his wife. What is with these people who are so obsessed with male dominance?

“I don’t think he’s even been in a courtroom, and he went to a law school nobody even knows,” Giuliani said of Pence a day after he had a fit over Special Counsel Jack Smith on the same network.

Pence received his law degree in 1986 from the Indiana University Robert H. McKinney School of Law, and then went into private practice. Giuliani graduated from law school at New York University.

“I thought before that he was a really good guy, but too weak to be president. I always worried about him following Trump, because I would see him with his wife having something around his neck every night,” Giuliani said while using his hands to apparently represent a leash or collar.

“She lets him go to the bathroom by himself, but that’s about it,” said the former New York mayor, who was accused of sexual abuse and harassment in a $10 million lawsuit in May.

Pence’s campaign has reportedly started selling T-shirts and mugs that have SSAT’s complaint about him that “He’s too honest”. Pence is likely to be called as a witness in the trial.

Even Ron DeSantis has now started to distance himself from SSAT’s claims about the election being stolen, thus committing a major heresy in MAGAland.

Florida’s Republican Gov. Ron DeSantis dismissed the false 2020 voter fraud theories pushed by Donald Trump on Friday, as the former president and one-time DeSantis ally faces charges stemming from his alleged efforts to overturn his 2020 loss, and as the feud between the two 2024 GOP candidates continues to escalate.

When asked about Trump’s 2020 loss to President Joe Biden, DeSantis said claims about the election are “unsubstantiated,” and though he did not call out Trump by name, he said: “All those theories that were put out did not prove to be true,” the New York Times reported.

It looks like SSAT’s rivals are slowly edging towards open criticism of his biggest lie, that he won the 2020 election.

These are baby steps no doubt but they are long overdue.


  1. sonofrojblake says

    Next things to watch:
    1 trajectory of Trump’s poll numbers
    2 trajectory of DeSantis’ poll numbers
    as a result of this…

  2. Tethys says

    Rudy is co-conspirator #1, so I expect he will be getting his own indictment in due course. Ironic that he is insulting Pence’s law degree, but it’s Rudy who is under investigation for various crimes and has recently been recommended for disbarment.

  3. birgerjohansson says

    It is a good thing this batch of corrupt power-hungry demagogues are too stupid to bother with good lawyers, or even listening to their lawyer’s advice.

    Their downfall will have a deterring effect on the huge number of Trump wannabees.

  4. JM says

    From what I have read from legal experts the whole indictment is very carefully structured. It’s limited to a small number of clear cut charges. Things without an obvious defense and he was clearly trying to reverse the election. There are a slew of other charges the government could have and likely would have brought against a common person.
    In a normal trial a prosecutor will often bring every reasonable charge and see what sticks. This is why if you look at big complex multi-part cases similar to this one they often start with the judge throwing a bunch of charges out. In this case it would look bad and very political to use the same strategy. It seems likely to me that Trump’s tactic of delaying everything as long as possible would make the prosecutor want to keep the case simple because the case already is big and involves a lot of complicating factors.

  5. Oggie: Mathom says

    sonofrojblake @1:

    >Next things to watch:
    1 trajectory of Trump’s poll numbers
    2 trajectory of DeSantis’ poll numbers
    as a result of this…

    Trumps numbers among Republicans will go up. Trumps numbers among everyone else will stay flat or decline slightly.
    DeSantis’ numbers among Republicans will go down. DeSantis’ numbers among everyone else will not change.


    And I am gobsmacked, repeatedly, by the mendaciousness and incompetence of Trump’s lawyers. If they really think that speech involving a conspiracy to overthrow the United States government is protected by the Constitution, they need to go back to law school. Perhaps his lawyers are not playing to the courts, but rather setting up rational arguments (well, to the right wing) to rise up and overthrow the government to save Trump? Or praying they can delay the trial long enough that he is able to win the election and make their asinine arguments moot? Or am I implying his lawyers are actually thinking?

    I suspect that, right now, Trump’s lawyers and the DOJ lawyers are talking to each other and the DOJ lawyers are saying, “Look, we’ve got him dead to rights, lets negotiate a plea deal to avoid possible bloodshed (which his supporters would lose) and, if he doesn’t accept a plea, we will hit him with even more charges,” and the Trump lawyers are saying, “We agree, but Trump won’t even think of it,”

  6. says

    Honestly, if any of the entered the primary in hopes of getting the VP nod they’re idiots. By joining the race they’re already seen as “disloyal” by SSAT, as well as by his devoted cult members. As long as SSAT keeps his grip on the Republican Party, their careers within it are toast. They have nothing to lose by being honest about the guy.

    Though as I was writing that there is a scenario where someone not telling the truth still has a chance, and that’s if his legal troubles (or at his age, his health) make him drop out of the race. Then someone who said they only entered the race as a back up against “the deep state” might still have a chance. Not DeSantis though. He’s been so weakened by both SSAT’s attacks on him and his unwillingness to fight back that even if he finishes his term as governor I will be surprised if he’s not primaried.

  7. ardipithecus says

    Competent lawyers don’t go near Trump because Trump insists on telling his lawyers how to practice law, with disastrous results. Plus his track record re paying them is . . . erm . . . spotty.

    It’s hard to tell if SSAT’s lawyers are a incompetent as they appear because they are desperate. They know their defense strategies are hopeless, but it appears to be the best they’ve got.

    The primary challenge for a Trump lawyer is to avoid going down with him.

  8. Mano Singham says

    Tabby @#7,

    DeSantis cannot run again for governor in 2026 because he would be term-limited.

  9. Pierce R. Butler says

    Lawyers who represent themselves are not the only ones with a fool for a client.

  10. Oggie: Mathom says

    stderr gives a wonderful takedown of the whole free speech defense over here. Really really really worth a read.

  11. birgerjohansson says

    In an earlier thread I joked that Trump would find it unfair that a black woman judge had been randomly selected for his case.
    And today he is loudly complaining that this judge will never give him a fair trial.
    Dumb evil people are predictable.

  12. birgerjohansson says

    Going off on a tangent- should I write Black with a capital B?
    I know anti-semites always write “jew” with a lower-case “j” so now I worry about every detail when writing American (British is a whole new can of worms).

  13. Pierce R. Butler says

    OT except for having a political aspect: a Singham quite unlike our esteemed host has been profiled in yesterday’s The New York Times as an apparent Chinese agent, pumping pro-Beijing propaganda into US left-wing discourse (via Code Pink in particular) much as several Putin puppets do on the right.

  14. sonofrojblake says

    @birgerjohansson, 12:

    Going off on a tangent- should I write Black with a capital B?

    If it’s at the beginning of a sentence (or some other purely typographical reason) then yes. If the subject is a person or people, yes. Otherwise, no.

    This is one of those things that is so easy and inconsequential to do (like using someone’s preferred pronouns) that the question should rather be why wouldn’t you? If the answer is “I didn’t know” -- fair enough, now you do (I’m guessing this is you). If the answer is “I usually do but this time I forgot”, well, OK (this is me, if I forget). If the answer is “I want to trigger the woke-SJW-libtards”… well, thank you for making judging you so easy.

  15. birgerjohansson says

    Sonofrojblake 15
    The problem is, “English ” is no longer a single language. Already the different versions are drifting apart (which is why saying “fag” in London means something very different than in Merican.
    This works if US English is the default, but with EU countries mostly using English as lingua franca (and Ireland is still a member) the Brit variant will survive the downfall of Old Blighty, and grow as the economical muscles of EU grow.
    And as India starts catching up… Zod knows how many linguistic taboos I might violate with their variant.

    Of course, Tump (and BoJo) voters will not give a damn.

  16. sonofrojblake says

    EU countries mostly using English as lingua franca

    Hmm… I do wonder how long that’s going to continue, post Brexit. I’m surprised the French haven’t already agitated to change it. Then again, quite a few of the mainland Europeans I know take it for granted that sooner or later the UK will rejoin anyway, because the alternative is unthinkably stupid. I wish I had their faith in the UK electorate, frankly.

    My attitude with linguistic taboos is usually to try to not offend people unnecessarily, to gracefully accept correction, and to judge people who deliver the correction on their tone. I would generally avoid using “fag” in conversation with Americans, because I know they’re so fucking touchy about how they use that word and they think the world revolves around them, linguistically.

    If you’re not aware, here’s another one to be careful with: “oriental”. In the UK, we have a diverse immigrant community, but we have a particularly large and distributed immigrant population who originated in India, Pakistan and Bangladesh. Given the rather tense history between those countries, it would be awkward to assume a person is from one or other of them in particular, so the accepted polite term is “Asian”. I do understand that this term is used for much the same reason to be politely non-nation-specific when describing someone from, possibly, China, Korea or Japan, say. In the UK, the polite word there is “oriental”… but it seems that that word is actively offensive to people from the US.

    My attitude is to just try not to offend. If you fail and someone corrects you, great, every day’s a school day. I think I only learned about the capital B for Black in the last two, three years max, and while I can’t remember the exact circumstances, I remember enough that the lesson was a positive one. You’re obviously on the right side if you’re asking the question. (If you fail and someone immediately completely loses their shit at you -- fuck ’em, they’re what’s wrong with the left. The snowflakes ARE out there, but they’re thankfully much, much thinner on the ground than MAGAts would admit. But don’t let their brittleness put you off looking into whatever it is they’re bleating about. Just because they’ve not learned to converse like an adult doesn’t automatically mean they’re wrong.)

  17. brightmoon says

    Well I use the B for Black if I mean American born and culturally from here . The African cultures were stomped out of us long ago and for centuries were weren’t allowed to share in normal USA American culture unless we sorta sneaked or were extremely lucky. . We’ve had to develop a culture from scratch . That’s why I use it.

  18. sonofrojblake says

    On the basis that the link in #19 was to a UK government website, and our current government is currently observably run from the top by a bunch of evil racist scum, I’ll be interested to see if their style guide changes at all once humans are in charge in the next year or two.

    I did check out the Guardian style guide, and found this: “There is debate about the capitalisation of black, with some using it as a physical descriptor, others to describe a specific cultural group, therefore while generally lower case, if a subject, writer or editor of a story prefers to use Black then that choice should be respected”. So yeah, mostly a Yank affectation so far.

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