No, The Jan. 6 Indictment Of Trump Is Not A First Amendment Case

INSIDE: Jack Smith ... Stan Woodward ... KBJ
US President Donald Trump speaks during a press conference in Bedminster, New Jersey, on August 15, 2020. - Donald Trump said August 15, 2020 he will try a controversial "snapback" to force a return of UN sanctions a... US President Donald Trump speaks during a press conference in Bedminster, New Jersey, on August 15, 2020. - Donald Trump said August 15, 2020 he will try a controversial "snapback" to force a return of UN sanctions against Iran, after the Security Council rejected Washington's bid to extend the arms embargo against the Islamic republic. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images) MORE LESS
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A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

This Is Dumb

As soon as I saw the headline, I knew this NYT story was going to be bad: “Trump Election Charges Set Up Clash of Lies Versus Free Speech.” No. No, it does not.

Both-sides coverage in politics is toxic; in legal coverage it’s so bad it becomes almost funny. But of course in typical legal matters we rarely get both-sides coverage. Instead, it skews heavily in favor of the narrative of law enforcement and prosecutors. But when a politician (let alone Trump) is the defendant, suddenly there’s a detached remove from the underlying facts. Conspiracy to overthrow the government or just political puffery in the spirit of stump speaking? Who can say, really? We’ll leave to you, dear reader, to decide.

Take the core graph of the story:

The indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.

Trust me, folks. This is not going to be a showdown over the limits of the First Amendment. How do I know? Well, one way is by reading the bottom half of the same NYT story, where legal experts shred the Trump defenses.

But by then of course the entire top half of the story has framed it up as a legitimately titanic clash over First Amendment freedoms. Readers who don’t make it past the halfway mark of the story will be forgiven for coming away with a very different impression of Trump’s prospects at trial.

For those in the back, here’s a good explanatory thread on why the First Amendment is not implicated here.

It’s Not Just The NYT

Another example of covering a criminal prosecution like it’s politics, courtesy of the WSJ: “Trump Is Being Prosecuted, but Justice Department Is on Trial, Too”

Oh boy, this sentence: “On the issue of whether it can persuade the public of the righteousness of its prosecution, the Justice Department has taken on a huge and politically polarizing target in an atmosphere already ripe with mistrust over its motivations.”

Not literally untrue. But notice the way this turns it all into a messaging contest, like a political campaign.

Trump Arraignment Day #3!

The 4 p.m. ET arraignment of the former president at the federal courthouse in DC set for today will in many ways be a return to the scene of the crime. The E. Barrett Prettyman federal courthouse sits a block from the grounds of the Capitol. The Jan. 6 attackers advancing from the Ellipse toward the Capitol would have passed right by it.

Trump will not be formally arrested but he will:

  • have his fingerprints taken digitally;
  • be required to provide his social security number, date of birth, address, and other personal information;
  • won’t have photograph taken, since he’s already easily recognizable and there are already many photographs available.

The former president is expected to plead not guilty and be released on his own recognizance.

One thing to watch for: Does the government seek different or additional conditions on trump’s release than they did in the Mar-a-Lago case?


TPM’s Hunter Walker: Newly Revealed Text Messages Show GOP Officials At Ground Zero Of Election Conspiracy Outlined By Trump Indictment

What A Piece Of Work

Trump is the central villain in the Jan. 6 coup attempt, but every villain needs a distilled, arch-villainous version of himself as a sidekick/enabler – and Jeff Clark 100% fits the bill in this screenplay.

NYT Tags Boris Epshteyn At Co-Conspirator 6

Here’s their best evidence:

An email from December 2020 from Boris Epshteyn, a strategic adviser to the Trump campaign in 2020, to Mr. Giuliani matches a description in the indictment of an interaction between Co-Conspirator 6 and Mr. Giuliani, whose lawyer has confirmed that he is Co-Conspirator 1.

Fox News Can’t Quit Trump

NYT: “Shortly after learning he was being indicted a third time, former President Donald J. Trump had a private dinner with the top leadership at Fox News as they lobbied him to attend the first Republican presidential primary debate this month, three people familiar with the event said.”


You would think that being named a yet-to-indicted co-conspirator in a conspiracy to overthrow the government would be the highlight of Rudy Giuliani’s week, but you would be wrong. Very wrong. Unbelievably wrong. To-wit:

  • HuffPost: We Regret To Inform You About These Transcripts Of Rudy Giuliani Talking Dirty
  • The Daily Beast: ‘Come Here, Big Tits’: Rudy Giuliani’s Sex Abuse Accuser Has the Tapes
  • Rolling Stone: Rudy Giuliani in Vile New Audio Transcripts: ‘Jewish Men Have Small Cocks’

Jack Smith Spotlights Key MAGA World Attorney

Stanley Woodward is familiar to those following the Jan. 6 and Mar-a-Lago cases: He represents targets and witnesses in both sets of cases, and in some instances is being paid by Trump-related entities. Woodward is everywhere in these cases. He’s not accused of any illegalities, and he’s considered a qualified lawyer with expertise in the relevant areas of law. He’s not one of the eccentric loose canons repping Jan. 6 defendants.

But Special Counsel Jack Smith now wants the judge in the Mar-a-Lago case to sort through Woodward’s various conflicts or potential conflicts of interest so that they don’t tar the case. Woodward represents Trump co-defendant Walt Nauta, but he also represents or has represented at least 3 witnesses in the Mar-a-Lago case whom the government may call to testify at trial, Smith’s team says in a new filing.

Most notably,  Woodward repped Mar-a-Lago IT director Yuscil Taveras who didn’t flip until after he switched lawyers last month. After the lawyer change, Taveras provided new information to Smith that led to the superseding indictment adding Carlos De Oliveira as a third co-defendant.

Also notable: Smith’s team alleges that earlier this year it pointed out to Woodward his conflict as between Nauta and Taveras and he blew them off.

Sorting out these kinds of conflicts isn’t uncommon, but the extent of Woodward’s conflicts – he repped or did rep a total of eight witnesses in the MAL case – is extraordinary and gives U.S. District Judge Aileen Cannon some thorny issues to resolve.

Tree Of Life Gunman Sentenced To Death

The gunman who killed 11 at the Tree of Life synagogue in Pittsburgh in 2018 in the worst anti-Semitic attack in U.S. history has been sentenced to death by a federal jury.

KBJ Will Commemorate Birmingham Church Bombing

The first Black woman on the Supreme Court will be the featured speaker at next month’s 60th anniversary of the bombing of the 16th Street Baptist Church in Birmingham that killed four Black girls:

“Who would believe in 1963 that 60 years later we would have the first African-American woman in our history on the Supreme Court,” said 16th Street Baptist Church Pastor Arthur Price, who made the announcement this morning alongside Birmingham Mayor Randall Woodfin.

Charges in the bombing would be late in coming, with the final convictions not obtained until the 2000s.

Let’s End With A Chuckle

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