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Saturday, January 15, 2022

Lawyer Responds: John Oliver SLAPPs Back? (Real Law Review)

Posted by John H Armwood II at 10:49 AM

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Live Updates: House Puts $1.9 Trillion Stimulus on Fast Track, With No G.O.P. Votes “I see enormous pain in this country,” said President Biden, who is pushing forward with his plan over Republican objections. Democrats advanced with plans to begin drafting the aid package next week and speed it through the House by the end of the month. Updated Feb. 5, 2021, 8:55 p.m. ET7 minutes ago Here’s what you need to know: House gives final approval to budget plan including Biden’s $1.9 trillion stimulus, fast tracking the process. Biden says he will bar Trump from receiving intelligence briefings, saying his ‘erratic behavior’ cannot be trusted. Two G.O.P. House members, Louie Gohmert and Andrew Clyde, are fined for bypassing security screening. A Lincoln Project co-founder resigns after allegations that a former colleague sent unsolicited, lurid messages to young men. Biden won’t restore the American Bar Association’s role in vetting judges. Greene says Democrats are ‘morons’ — and accuses critics of calling any Republican with “white skin” a racist. ‘The vice president votes in the affirmative’: Here’s how Kamala Harris broke her first Senate tie. Pence accepts two fellowships from conservative groups — and starts a podcast. 144 constitutional lawyers call Trump’s First Amendment defense ‘legally frivolous.’ transcript ‘We’re Still in the Teeth of This Pandemic,’ Biden Says President Biden called on Congress to act quickly on his proposed $1.9 trillion coronavirus relief package on Friday, in a speech following a weak jobs report. We’re still the teeth of this pandemic. In fact, January was the single-deadliest month of the whole pandemic. We lost nearly 100,000 lives. I know some in Congress think we’ve already done enough to deal with the crisis in the country. Others think that things are getting better, and we can afford to sit back. And either do little or do nothing at all. That’s not what I see. I see enormous pain in this country. A lot of folks out of work, a lot of folks going hungry, staring at the ceiling tonight, wondering, what am I going to do tomorrow? And I believe the American people are looking right now to their government for help, to do our job, to not let them down. So I’m going to act, and I’m going to act fast. I’d like to be — I’d like to be doing it with the support of Republicans. I’ve met with Republicans and some really fine people want to get something done, but they’re just not willing to go as far as I think we have to go. I’ve told both Republicans and Democrats that’s my preference, to work together. But if I have to choose between getting help right now to Americans who are hurting so badly and getting bogged down in a lengthy negotiation or compromising on a bill that’s up to the crisis, that’s an easy choice. I’m going to help the American people who are hurting now. That’s why I’m so grateful to the House and the Senate for moving so fast on the American Rescue Plan. Job No. 1 of the American Rescue Plan is vaccines, vaccines. The second, the American Rescue Plan is going to keep the commitment of $2,000 — $600 has already gone out, $1,400 checks to people who need it. I’m not cutting the size of the checks. They’re going to be $1,400, period. That’s what the American people were promised. Video player loading President Biden called on Congress to act quickly on his proposed $1.9 trillion coronavirus relief package on Friday, in a speech following a weak jobs report.Stefani Reynolds for The New York Times The House gave final approval on Friday to a budget blueprint that included President Biden’s $1.9 trillion stimulus plan, advancing it over unanimous Republican opposition as Democrats pressed forward with plans to begin drafting the aid package next week and speed it through the House by the end of the month. “Our work to crush the coronavirus and deliver relief to the American people is urgent and of the highest priority,” Speaker Nancy Pelosi wrote in a letter to Democrats shortly before the bill passed by a 219-to-209 margin. President Biden, speaking just before the House acted, cited a weak jobs report in justifying the use of a procedural device, called reconciliation, to ram through the measure if Senate Republicans oppose his effort to speed aid to families, businesses, health care providers and local governments. “It is very clear our economy is still in trouble,” Mr. Biden said during remarks at the White House — amping up the pressure on an upper chamber bracing for former President Donald J. Trump’s impeachment trial next week. “I know some in Congress think we’ve already done enough to deal with the crisis in the country,” added Mr. Biden, who reiterated his commitment to fund $1,400 direct checks to low- and middle-income Americans. “That’s not what I see. I see enormous pain in this country. A lot of folks out of work. A lot of folks going hungry.” Mr. Biden’s comments came as the Labor Department’s reported on Friday that the economy added only 49,000 jobs in January, and just 6,000 in the private sector. The labor market remains 10 million jobs below its pre-pandemic levels. Hours earlier, as the sun rose over the Capitol dome, the Senate approved a fast-track budget measure, with Vice President Kamala Harris casting her first-ever tiebreaking vote after a grinding all-night session. The move, in theory, allows them to enact the package without any Republican votes. Senate leaders could begin working on their own bill in hopes of delivering a final package to Mr. Biden’s desk before supplemental unemployment benefits are set to expire in mid-March. Jen Psaki, the White House press secretary, cited poll numbers showing bipartisan support among American voters for the plan, brushing aside criticism the White House was sacrificing bipartisan solidarity for partisan celerity. “He didn’t run on a promise to unite the Democratic and Republican Party into one party in Washington,” she said in her Friday briefing at the White House. Still, Mr. Biden offered one olive twig on Friday, saying his plans could change to win over moderates in both parties, acknowledging that he favored restricting the direct payments to people earning less than $300,000. “I’m not cutting the size of the checks,” he said on Friday. “They’re going to be $1,400, period.” Still, there were warning signs the road ahead would not be entirely traffic-free. The Senate agreed to a proposal by Senator Joni Ernst, Republican of Iowa, to prohibit any minimum wage increase during the pandemic — which could complicate Mr. Biden’s plan to raise the federal minimum wage to $15 per hour by 2025. Democrats did not contest Ms. Ernst’s proposal, arguing that it was never their intention to increase the wage immediately, but their reticence to record a vote on the matter was a signal that the wage increase might ultimately lack the support to pass in an evenly split Senate, where at least one Democrat, Senator Joe Manchin III of West Virginia, is on record in opposition. — Jim Tankersley, Luke Broadwater and Hailey Fuchs President Joe Biden has decided not to share intelligence briefings with former President Trump, breaking from tradition. President Joe Biden has decided not to share intelligence briefings with former President Trump, breaking from tradition.Stefani Reynolds for The New York Times President Biden said on Friday that he would bar his predecessor, former President Donald J. Trump, from receiving the intelligence briefings traditionally conducted for former presidents, saying he could not be trusted because of his “erratic behavior” even before the Jan. 6 attack on the Capitol. The move marked the first time that a former president had been cut out of the briefings, which are provided partly as a courtesy and partly for the moments when a sitting president reached out for advice. Currently the briefings are offered on a regular basis to former Presidents Jimmy Carter, Bill Clinton, George W. Bush and Barack Obama. Mr. Biden, speaking to Norah O’Donnell of CBS News, said Mr. Trump’s behavior worried him “unrelated to the insurrection” that gave rise to the second impeachment of Mr. Trump. “I just think that there is no need for him to have the intelligence briefings,’’ Mr. Biden said. “What value is giving him an intelligence briefing? What impact does he have at all, other than the fact he might slip and say something?” The White House said earlier this week that it had been reviewing whether the former president, whose impeachment trial in the Senate begins on Tuesday, should receive the briefings. The chairman of the House intelligence committee, Representative Adam Schiff, Democrat of California, said last month, just before the inauguration, that Mr. Trump’s access to any classified information should be cut off. Representative Louie Gohmert, Republican of Texas, during a news conference with members of the House Freedom Caucus in December. Representative Louie Gohmert, Republican of Texas, during a news conference with members of the House Freedom Caucus in December.Al Drago for The New York Times Two Republican House members, Representatives Louie Gohmert of Texas and Andrew Clyde of Georgia, are being fined $5,000 each for bypassing security screening while entering the House chamber on Thursday, according to a senior Democratic aide. Metal detectors were installed outside the House floor in the wake of the riot at the Capitol on Jan. 6, and the House voted Tuesday to fine members who do not comply with the security screening when entering the chamber. The fine is $5,000 for the first offense and $10,000 for additional offenses, and members can appeal to the House Ethics Committee. The offices of Mr. Gohmert and Mr. Clyde did not immediately respond to requests for comment on Friday night. Mr. Gohmert told Axios that he would appeal “because this is ridiculous.” “This isn’t ‘The Godfather’ where you plant a gun in the toilet tank,” he said. “There is no toilet tank in the bathroom.” Jennifer Horn, a former chairwoman of the New Hampshire Republican Party, was the only prominent woman among the original founders of the Lincoln Project. Jennifer Horn, a former chairwoman of the New Hampshire Republican Party, was the only prominent woman among the original founders of the Lincoln Project.Matt Rourke/Associated Press Jennifer Horn, one of the original founders of the anti-Trump group the Lincoln Project, has left the organization citing the revelations that another co-founder, John Weaver, was accused of sending unsolicited and sexually provocative messages to young men. “Upon careful consideration, I have terminated my relationship with the Lincoln Project, effective immediately,” Ms. Horn said in a statement to The New York Times. “John Weaver’s grotesque and inappropriate behavior, coupled with his longstanding deceptions concerning that behavior, are sickening,” she said, adding, “It is clear at this point that my views about how the Lincoln Project’s efforts are managed, and the best way to move the Lincoln Project forward into the future in the wake of these awful events, have diverged.” Ms. Horn did not further elaborate. In a response, the Lincoln Project said that 48 hours ago, Ms. Horn requested “an immediate ‘signing bonus’ payment of $250,000 and a $40,000-per-month consulting contract,” and claimed that in December, she had “demanded a board seat on the Lincoln Project, a television show, a podcast hosting assignment and a staff to manage these endeavors.” “These demands were unanimously rejected by the management committee and board,” the organization said. “We immediately accepted Jennifer Horn’s resignation from the Lincoln Project. We wish her the best in her future endeavors.” Ms. Horn, a former chairwoman of the New Hampshire Republican Party, was the only prominent woman among the original founders of the group, which focused on trying to oust former President Donald J. Trump and sought to thwart his stranglehold over the Republican Party. The group’s original founders also included Rick Wilson, a media consultant, Steve Schmidt, a strategist, and George T. Conway III, a lawyer. The Times reported on Sunday that Mr. Weaver, a former adviser to the late Senator John McCain and to former Gov. John Kasich of Ohio, had been accused of sending unsolicited and sexually provocative messages to 21 men, one as young as 14 when the messages began. In some cases, the Times reported, Mr. Weaver offered to help them find employment in the field of politics. Mr. Weaver was said to have been on leave from the group since last summer, when he claimed to have had a heart incident. Following the story, the Lincoln Project issued a statement denouncing Mr. Weaver, saying, “The totality of his deceptions are beyond anything any of us could have imagined and we are absolutely shocked and sickened by it. Like so many, we have been betrayed and deceived by John Weaver.” In her own statement, Ms. Horn said, “I originally joined the Lincoln Project because I recognized Donald Trump as an existential threat to our country and our way of life.” She said that she “brought my credibility, integrity and professionalism to the Lincoln Project’s efforts every day to defeat Donald Trump and Trumpism.” She said that the success experienced in fighting Mr. Trump “is undeniable but also unfinished. While I end my association with the Lincoln Project today, I remain fully committed to fighting Trumpism going forward, to preserving our democratic Republic and to giving a voice to those who have none.” The decision by the White House was a blow to the prestige of the American Bar Association, which describes itself as the largest voluntary association of lawyers in the world. The decision by the White House was a blow to the prestige of the American Bar Association, which describes itself as the largest voluntary association of lawyers in the world.Stefani Reynolds for The New York Times The Biden administration has told the American Bar Association that it will not restore the group’s quasi-official gatekeeper role in vetting potential judges before the president decides whether to nominate them, according to the legal group’s president, Patricia Lee Refo. This decision is a first for a Democratic president, but it echoes that of the last two Republican administrations. The bar association’s prenomination role had dated to the Eisenhower administration, serving as an outside check on the process of selecting judges who have tenure for life. “Every White House sets its own rules for judicial nominations,” Ms. Refo said in an interview. “Other White Houses have found it useful to get our confidential evaluation in private. This White House has made a different decision. But the evaluation work that we do will go forward without change.” The bar association and the Obama administration had recurring tensions over the fact that most of the “not qualified” ratings the bar group’s peer-review system produced were for women or people of color. Against that backdrop, liberal groups greeted the decision as a signal that the White House under President Biden was determined to diversify the federal bench. In a phone call last Friday, White House officials raised concerns that the subjective criteria by which the group gathered impressions from peers of lawyers under consideration might be vulnerable to unintentional negative assumptions and racial or gender stereotyping, according to people briefed on the call. Not waiting for the bar association to vet potential nominees — a process that takes about a month, according to people familiar with it — is also likely to help speed Mr. Biden’s efforts to push nominations into the confirmation pipeline more quickly than President Barack Obama did. President Donald J. Trump set a record-breaking pace in appointing judges, largely white and male. The decision by the White House — earlier reported by The Washington Post — was a blow to the prestige of the A.B.A., which describes itself as the largest voluntary association of lawyers in the world. Commenting on nominees only after their names have been put forward reduces the group’s power to block potential judges it deems unqualified. Still, the bar group, which has expressed eagerness to work with the Biden administration on various issues related to the judicial system, is not publicly objecting to the shift. transcript ‘I’ve Been Freed,’ Greene Says of Removal From Committees Representative Marjorie Taylor Greene, Republican of Georgia, said she was “freed” after the House voted to end her committee assignments over her promotions of violence and misinformation on social media. When the Democrats and 11 of my Republican colleagues decided to strip me of my committee assignments, education and labor and the budget committee, you know what they did? They actually stripped my district of their voice. They stripped my voters of having representation to work for them. I had the greatest opportunity yesterday, and I’m so grateful for it. I got to say what I had done wrong. And do you know how freeing that is? I’m not kidding. I seriously feel blessed by God because I got to do it on a world stage. I got to say, I said things wrong. I believe things that were wrong. Going forward, I’ve been freed. I do. I feel freed because you know what’s happening on these committees? You see, we have basically a tyrannically controlled government right now, the Democrats. So if I was on a committee, I’d be wasting my time because my conservative values wouldn’t be heard and neither would my districts. Right now, my Republican colleagues are being told that their white skin makes them inherently racist or that their service in our nation’s military to our country, defending our freedoms, makes them bad and a domestic terrorist. How are we at this place? Video player loading Representative Marjorie Taylor Greene, Republican of Georgia, said she was “freed” after the House voted to end her committee assignments over her promotions of violence and misinformation on social media.Anna Moneymaker for The New York Times Representative Marjorie Taylor Greene, Republican of Georgia, lashed out at Democrats on Friday in her first comments after the House voted to strip her of her committee assignments — defiantly making a case to help lead the clamorous Trump wing of the Republican Party. “I woke up early this morning literally laughing thinking about what a bunch of morons the Democrats (+11) are for giving some one like me free time,” she wrote on her personal Twitter account. “In this Democrat tyrannical government, Conservative Republicans have no say on committees anyway,” she said, adding, “Oh this is going to be fun!” Ms. Greene is responding to her public reprimand in much the same way that former President Donald J. Trump, a role model and ally, reacted to his — by hurling insults. Unlike Mr. Trump, she pulled back the curtain to reveal her political approach, admitting that Democrats were helping to amplify her importance on social and mass media. Ms. Greene, 46, cast the saga as a battle for free speech in a news conference on Capitol Hill, lamenting that Republicans “are being told that their white skin makes them inherently racist,” in her first extensive remarks since she was stripped of her committees a day before. She began with a free-ranging speech in which she chastised the media for their coverage of her, declaring that the Republican Party belongs to Donald J. Trump and “doesn’t belong to anybody else.” She complained that her loss of committee posts “stripped my voters of having representation to work for them,” adding that as a successful business owner, she would have been a valuable voice on the Budget Committee. A moment later, however, she claimed the decision had “freed” her from “wasting my time” with the minute details of legislating. On Thursday, Democrats warned that the unwillingness of House Republicans to punish one of their own represented a danger to their party and to the country at large. “When acquiescence to the suggestion of violence of any kind is allowed to go unchecked, it is a cancer that can metastasize on the body politic of our nation,” said Steny H. Hoyer, the majority leader of the House, in a speech on the House floor, as Ms. Greene sat nearby. Ms. Greene’s determination to remain in the spotlight obliterated even the slim hopes of House Republican leaders that Ms. Greene, empowered by her devotion to Mr. Trump, would quiet down in the name of party unity after her rebuke. On Thursday, 11 Republicans joined all the chamber’s Democrats in removing her committee assignments. Kevin McCarthy, the House minority leader, had refused to discipline her after stripping Representative Steve King of Iowa of his assignments two years earlier. The episode laid bare deep divisions among Republicans about how to move forward as a party. In the days leading up to the vote on Ms. Greene, Senator Mitch McConnell of Kentucky, the most powerful Republican in Washington, had denounced her statements, which he called “loony lies,” saying such conspiracy theories were a “cancer” on the party. Several other top Republican senators had joined him in denouncing Ms. Greene and saying she could not become the face of the party. Hours before her Friday tweet, Ms. Greene — who has allied herself with the QAnon conspiracy movement, promoted anti-Jewish tropes and suggested using violence against political opponents — sought to downplay her previous statements and cast herself as an earnest newcomer trying to represent her constituents. In emotional remarks on the House floor, Ms. Greene expressed regret for her previous comments and disavowed many of her most outlandish and repugnant pronouncements. She said she believed that the Sept. 11, 2001, attacks “absolutely happened” and that school shootings were “absolutely real” after previously suggesting that aspects of both were staged. Asked by a CNN reporter on Friday if she would apologize for some of her most offensive comments made before she was elected to Congress, Ms. Greene initially stood firm and demanded that the reporter offer an apology for the network’s coverage of the Trump-Russia investigation. Asked again — by a different reporter — Ms. Greene offered her first unequivocal apology to date. “Of course I’m sorry for saying all those things that are wrong and offensive,” Ms. Greene replied. “And I sincerely mean that, and I’m happy to say that. I think it’s good to say when we’ve done something wrong.” — Catie Edmondson and Glenn Thrush transcript Kamala Harris Breaks Senate Tie On Friday, Vice President Kamala Harris returned to the Senate, and cast a tiebreaking vote to pass a Covid relief budget measure. “Ms. Gillibrand, Mr. Graham, Mr. Grassley, Mr. Hagerty, Ms. Hassan and Mr. Hawley, and Mr. Heinrich, Mr. Hickenlooper, Ms. Hirono. Mr. Hoeven, Ms. Hyde-Smith. Mr. Inhofe. Mr. Johnson.” “On this vote, the yeas are 50, the nays are 50. The Senate being equally divided, the vice president votes in the affirmative, and the concurrent resolution as amended is adopted.” Video player loading On Friday, Vice President Kamala Harris returned to the Senate, and cast a tiebreaking vote to pass a Covid relief budget measure.Anna Moneymaker for The New York Times It was, somehow, a setting simultaneously dramatic and anticlimactic for Vice President Kamala Harris’s first tiebreaking vote in the Senate: just before dawn in a sparsely filled chamber, at the end of a 15-hour session in which senators voted on dozens of amendments to one of the largest stimulus packages in American history. Minus, perhaps, the 15-hour session, it was a scene sure to be repeated many times. The stimulus may be one of their main priorities, but it is also just the first of many policies the Biden administration hopes to pass through a Senate evenly split between parties that disagree on almost everything, even when the American people don’t. In the hours before her vote was needed, Ms. Harris met with several senators — including Raphael Warnock, Democrat of Georgia, and Roy Blunt, Republican of Missouri — and participated in the ceremonial swearing-in of Senator Alex Padilla, who replaced her last month as the junior senator from California. She returned to her Senate office around 3:30 a.m., according to a White House aide. With C-SPAN in the background, she passed the time by writing notes to Senators Dianne Feinstein of California and Patty Murray of Washington, congratulating them on their 9,000th votes, and to Ann Berry, who was named this week as the first Black secretary of the Senate. Ms. Harris arrived on the Senate floor shortly after 5 a.m. in anticipation of the session’s final vote — on a budget blueprint that would allow Democrats to pass a $1.9 trillion stimulus package with no Republican support — and took her seat at the head of the chamber. “Good morning,” Senator Jon Ossoff, Democrat of Georgia, tweeted at 5:13 a.m. “We are still voting in the Senate. And @KamalaHarris has just arrived in the chamber to help us advance COVID relief.” At that very moment, Ms. Harris was casting what was technically her first tiebreaking vote in favor of an amendment proposed by Senator Chuck Schumer of New York, the majority leader. But it was at 5:34 a.m., 95 minutes before the sun rose in Washington, that she broke the tie that mattered. “On this vote, the yeas are 50, the nays are 50,” she said. “The Senate being equally divided, the vice president votes in the affirmative and the concurrent resolution as amended is adopted.” There was no mistaking the weight of those words. They advanced a hugely impactful piece of legislation, of course. But they also signaled that for two years to come, the single most influential voice in the United States may be that of Ms. Harris declaring, in the stiltedly third-person language of Senate procedure, which way the vice president votes. As she pronounced the resolution adopted and slid her chair back from the desk, her eyes crinkled in what, behind two masks, was clearly a smile. Former Vice President Mike Pence and his wife, Karen, at President Biden’s inauguration last month. Former Vice President Mike Pence and his wife, Karen, at President Biden’s inauguration last month.Ruth Fremson/The New York Times Former Vice President Mike Pence, who blended an easy-listening voice and hard-right politics as a talk radio personality in the 1990s, is hosting a new podcast sponsored by the conservative Young America’s Foundation, the group announced Friday. The podcast, which will be streamed on video, is part of Mr. Pence’s appointment as a Ronald Reagan Presidential Scholar, which also entails delivering lectures to students around the country participating in the foundation’s programs, Scott Walker, the foundation’s president, announced on Friday. “Vice President Pence’s energy and enthusiasm for Ronald Reagan’s values has and will continue to inspire a new generation of young people,” wrote Mr. Walker, a former Republican governor of Wisconsin, on the group’s website. It is not clear how often the podcast will air, who Mr. Pence will invite as a guest, or whether he plans to address his turbulent four years as President Donald J. Trump’s faithful number two. The foundation, started in 1969, purchased the Reagan ranch, “Rancho del Cielo,” in California two decades ago, using a $10 million endowment from Richard and Helen DeVos, the Amway billionaires. One notable alumnus of the foundation’s youth programs: Stephen Miller, Mr. Trump’s hard-line immigration adviser. On Thursday, the Heritage Foundation — which played a critical, under-the-radar role in shaping the Trump administration’s conservative domestic agenda — announced that Mr. Pence would be serving as a “distinguished visiting fellow.” Neither organization provided information about Mr. Pence’s compensation or benefits. In recent years, Heritage has paid lesser-known fellows more than $300,000 a year, according to federal tax filings. The Young America’s Foundation’s annual tax filings contain no details on the compensation of fellows, but its senior staff has been generously compensated, with some executives earning more than $600,000 per year. Former President Donald J. Trump’s impeachment trial opens on Tuesday. Former President Donald J. Trump’s impeachment trial opens on Tuesday.Oliver Contreras for The New York Times Claims by former President Donald J. Trump’s lawyers that his conduct around the Jan. 6 Capitol riot is shielded by the First Amendment are “legally frivolous” and should do nothing to stop the Senate from convicting him, 144 leading First Amendment lawyers and constitutional scholars from across the political spectrum wrote in a new letter circulated on Friday. Taking aim at one of the key planks of Mr. Trump’s impeachment defense, the lawyers argued that the constitutional protections do not apply to an impeachment proceeding, were never meant to protect conduct like Mr. Trump’s anyway and would likely fail to shield him even in a criminal court. “Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution’s text, history, and context, we all agree that any First Amendment defense raised by President Trump’s attorneys would be legally frivolous,” the group wrote. “In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office.” Lawyers Call Trump’s Defense ‘Legally Frivolous’ Taking aim at a key plank of the former president’s impeachment defense, the lawyers argued that the constitutional protections do not apply to an impeachment proceeding. Among the 144 lawyers, scholars and litigants who signed the letter, a copy of which was shared with The New York Times, were Floyd Abrams, who has fought marquee First Amendment cases in court; Steven G. Calabresi, a founder of the conservative Federalist Society; Charles Fried, a solicitor general under Ronald Reagan; and pre-eminent constitutional law scholars like Laurence Tribe, Richard Primus and Martha L. Minow. The public retort came after Mr. Trump’s lawyers, Bruce L. Castor Jr. and David Schoen, indicated this week that they planned to use the First Amendment as part of their defense when the trial opens on Tuesday. They argued in a written filing on Tuesday that the House’s “incitement of insurrection” charge “violates the 45th president’s right to free speech and thought” and that the First Amendment specifically protects Mr. Trump from being punished for his baseless claims about widespread election fraud. The House impeachment managers have argued that Mr. Trump’s false statements claiming to have been the true winner of the election, and his exhortations to his followers to go to the Capitol and “fight like hell” to reverse the outcome helped incite the attack. In their letter, the constitutional law scholars laid out three counterarguments to the president’s free-speech defense that the Democrats prosecuting the case are expected to embrace at trial. First, they asserted that the First Amendment, which is meant to protect citizens from the government limiting their free speech and other rights, has no real place in an impeachment trial. Senators are not determining whether Mr. Trump’s conduct was criminal, but whether it sufficiently violated his oath of office to warrant conviction and potential disqualification from holding future office. “As a result, asking whether President Trump was engaged in lawful First Amendment activity misses the point entirely,” they write. “Regardless of whether President Trump’s conduct on and around January 6 was lawful, he may be constitutionally convicted in an impeachment trial if the Senate determines that his behavior was a sufficiently egregious violation of his oath of office to constitute a ‘high crime or misdemeanor’ under the Constitution.” What is more, they argued, even if the First Amendment did apply to an impeachment trial, it would do nothing to bar conviction, which has to do with whether Mr. Trump violated his oath, not whether he should be allowed to say what he said. “No reasonable scholar or jurist could conclude that President Trump had a First Amendment right to incite a violent attack on the seat of the legislative branch, or then to sit back and watch on television as Congress was terrorized and the Capitol sacked,” they wrote. Finally, they contended that there is an “extraordinarily strong argument” that the defense would even fail in a criminal trial, because the evidence against Mr. Trump is most likely strong enough to meet the Supreme Court’s high bar for punishing someone for inciting others to engage in unlawful conduct. Many of the signatories to Friday’s letter had signed onto a previous one pushing back on another key argument in Mr. Trump’s defense: the assertion that the Senate does not have jurisdiction to try a former president because the Constitution does not explicitly grant it that power. Robert Gieswein, left, was among the first wave of violent rioters to break into the Capitol last month. Robert Gieswein, left, was among the first wave of violent rioters to break into the Capitol last month.Erin Schaff/The New York Times Federal officials piecing together the puzzling, chaotic story of the Capitol Hill riot are increasingly focusing on the Proud Boys, a far-right group that played a significant role in coordinating the attack on the heart of American democracy on Jan. 6. The efforts of the group — some of former President Donald J. Trump’s most vocal and violent supporters — are coming under increased scrutiny as prosecutors assign responsibility for the attempt, unparalleled in U.S. history, to disrupt the process of certifying a free and fair presidential election. In previous filings, the government has said that some Proud Boy members went to the Capitol with communication equipment and that leaders ordered subordinates to show up undercover, not in their typical black-and-yellow shirts. In a flurry of court papers filed in recent days — four separate cases against six individual Proud Boys — federal officials have begun detailing the actions of individual members who entered the fray with a plan. When Ethan Nordean, the “sergeant of arms” for the Seattle Proud Boys, led a mob of his fellow far-right nationalists on a winding march to the Capitol last month, an angry crowd had already gathered at the barricades, facing off against a small detachment of the Capitol Police. It was then, court papers say, that Mr. Nordean had a brief exchange with a young man in the throng wearing goggles, a battle helmet and head-to-toe military garb. Within an hour, court papers say, that man, Robert Gieswein, was among the first wave of violent rioters to break into the Capitol, breaching the building through a window shattered by a Proud Boy from New York. In a criminal complaint released on Wednesday night, for instance, prosecutors said that days before the Capitol attack, Mr. Nordean issued a call on social media asking for donations of “protective gear” and declared during his podcast, “We are in a war.” While prosecutors have not issued an overarching indictment accusing the group of a detailed conspiracy to storm the halls of Congress, they have left hints in the record that they believe a measure of planning went into disrupting the certification of the presidential vote. The Proud Boys have been a chief focus of the F.B.I.’s inquiry into the Capitol assault — not the least because they were one of the extremist groups with a large and visible presence in Washington before the riot. On Wednesday, the group came under increased pressure as the Canadian government moved to formally designate it as a terrorist organization, a step that could lead to financial seizures and allow the police to treat any crime committed by members as terrorist activity. The chairman of the Senate Intelligence Committee, Senator Mark Warner of Virginia, said this week that he hopes to examine the influence of foreign powers on antigovernment extremist groups like the ones that helped mobilize the attack on the Capitol last month.

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Saturday, January 15, 2022

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