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Outrage on Outrage – Gagging Trump

Posted on Tuesday, September 19, 2023
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by AMAC, Robert B. Charles
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donald trump waving from plane

Did none of these prosecutors go to law school? Did Jack Smith, the federal prosecutor chasing Trump, not learn from his 9-0 Supreme Court censure in McDonnell v. US (2016)? Now, he seeks a “gag” order against Trump, Biden’s top political opponent, silencing him. Does that sound fair?

Where does one begin? Perhaps with granite caselaw, precedents from our past – and the First Amendment, crafted at the Republic’s birth to protect you, me, and – yes – Mr. Trump.

The First Amendment – let us be blunt – creates an overwhelming presumption in favor of free and unrestricted speech. That is why countless cases declare government restrictions on speech, or “prior restraint” – unconstitutional.

“Prior restraint” – the blocking of criticism before heard – for a political purpose, like nobbling an opponent – would be far, far worse, obviously unconstitutional.

Famously, early last century – mid-WWI – speech critical of government was restricted, when fear ran high about adversaries in our midst, sedition, and belligerent antiwar views.

In Schenk v. US (1919), the High Court shaped a “clear and present danger” test, suggesting speech could be restricted if specific acts of violence were pushed. The test did not survive.

Even before that, a brilliant jurist named Learned Hand – what a great legal name, eh? – ruled in Masses Publishing v. Patten (1917), that “if one stops short of urging” the law be violently violated, “one should not be held to have attempted to cause its violation.” 

He was ahead of the curve. In 1969, the High Court returned to defending free speech, overruling the WWI-era restrictions in Brandenburg v. Ohio.  Even a liberal, activist Court could not stomach government restrictions on speech, except under the most extreme circumstances.

In that case, a liberal bench was asked to decide if a KKK rally could be gagged – using a state law against advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” or for assembling for “criminal syndicalism,” that is, revolutionary strikes or uprisings.

Did such rough speech warrant “prior restraint,” trumping First Amendment rights? Obviously, those speakers were not running for president, which would be even worse, but free speech won.

The entire Court ruled against prior restraint – and in favor of the KKK’s right to organize, speak, profoundly offend, inflame, and distress, because that is a First Amendment right.

The Court set forth a two-pronged test, saying speech can only be blocked if the specific speech is “directed at inciting or producing imminent lawless action,” and is likely to “produce” it.

Speech cannot be forbidden, preempted, blocked, restrained, fenced, or restricted if the government presumes things for politics, ignores whether a criminal act is being advocated, ignores imminence, intent, and whether the speech would actually incite criminality.

Now, add federal laws against interfering with elections, such as 18 USC 595, and state laws forbidding election interference, such as Georgia’s Criminal Code 21-2-567, which bars actions by “any person who … acts in any … manner to intimidate any other person, to … refrain from voting at any primary or election, or to vote or refrain from voting for or against any particular candidate … or refrain from placing his or her name upon a register of electors.”

We should all be scratching our heads. Why? Because the prosecutor has now ignored all this history, and unapologetically sought “prior restraint” – a “gag order” –against the leading Republican presidential candidate. Is this America?

On what basis, after indicting an opponent on charges that eviscerate traditional understandings of First and Fourth Amendment rights, criminalizing political speech and protection in our homes, and plainly interfering with the ongoing presidential election, can they now gag him?

Biden’s team now seeks an order blocking Trump’s speech, barring objections to these flawed indictments, saying he might “undermine confidence in the criminal justice system,” “prejudice the jury pool,” or offer “disparaging and inflammatory attacks” about the process.

Have you ever heard of such a thing?  First, call those who voted for your political opponent “enemies of the people” in a national address flanked by US Marines.

Then indict him in three jurisdictions, in what seems transparently political, constitutionally questionable, overtly offensive cases, asking briefings matches the primary schedule.

Finally, try to “gag” him, fearing he may “undermine confidence” in his opponent’s strategy or say things “disparaging and inflammatory” about it.  

Mr. Smith, hang it up. Mr. Garland call off the dogs. Mr. Biden, wake up, read your caselaw. This turn is plainly intended to impair a fair election. It amounts to pure abuse, is unprecedented, outrage on outrage, and frankly is un-American. When will this misuse of legal process stop?

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.

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PaulE
PaulE
9 months ago

RBC,

Certainly, you must have noticed the incredible number of similarities in how the authoritarian regimes of both Lula in Brazil and Erdogan in Turkey and how they both recently used the power of the weaponized justice system in their respective countries to prosecute their political opponents. This is EXACTLY how the Biden regime and the Democrat Party in general are using the exact same tactics against Trump. All authoritarian regimes essentially operate the same way in terms of methods and actions. The only difference is the names of the players involved at the end of the day.

There is no lack of understanding of the United States Constitution on the parts of the various Democrat players targeting Trump in a unified manner. Democrat politicians have on numerous occasions over the decades have expressed their disdain for the Constitution, as they view it as too limiting as to what the government is allowed to do to the American public without some form of expressed consent. Democrats, as a party, are simply choosing to ignore both the Constitution and legal precedents in order to target their greatest political opponent with ridiculous charges to try and ensure political control over the Executive Branch and much of both the Judicial and Legislative branches of the federal government. Classic despotic rule that you will find in any number of socialist or outright Marxist countries around the world.

Your last paragraph amounts to a plea for respect to both the Constitution and the rule of law. That might work if you were dealing with people with “clean hands” as a lawyer might say. Unfortunately, none of the players you mentioned are interested in either at this point. This is about retaining and expanding political power through use of lawfare and intimidation tactics until the entire country is ruled, not governed, by one authoritarian regime at all levels of government.

Donna
Donna
9 months ago

Thank you Mr. Charles for laying the facts out so concisely. All these obviously wrong minded actions by the left are to be expected. We are in a spiritual warfare with the dark side, led by satan himself. Your last sentence “when will this misuse of the legal process stop?” The answer is, it won’t, until the return of our Savior and Lord Jesus Christ. Until then we fight the good fight and wait for His return.

Robert Zuccaro
Robert Zuccaro
9 months ago

Biden has one thing right: I am his enemy. Every time I buy groceries or gas, I’m reminded how much I hate Joe Biden and the minions who put him there and continue to defend him. He’s a pompous uber white rich elitist country club backslapping racist who was a fool even before dementia set in.

Rik
Rik
9 months ago

The Progressively Communist wannabe Democrats have tried to ignore the Constitution for years! FREE SPEECH is for them and them only! They act like Dictators always do, shut down your opponents right to Free Speech! Not yet anyway, but they never stop trying.

Elaine
Elaine
9 months ago

“POGO” was right! How many traitors to our Constitution are coming out of their “mole holes”. They are not afraid to expose their hatred for the Constitution and for our nation. If they hate our country so much why don’t they just pack up and move to any Communist country in the world, there are plenty of them….wait they may not want them to enter their domain.
Why are these people so afraid of freedom of speech for Trump? Will their lies and corruption will be exposed?

Melinda
Melinda
9 months ago

All these legal maneuvers by the prosecution may not be intended to do anything but cost the defense time and money to reply, whether or not the judge rules in their favor. It all prolongs the cases and obfuscates the whole process. They want to tangle Trump in legalities.

A Voter
A Voter
9 months ago

When will this misuse of legal process stop?

It will stop when the Republicans we elect find a spine and hold those guilty of this accountable.
Which is a long winded way of saying never.

jocko
jocko
9 months ago

ALL LIBS = CANCER AND ARE THE ENEMY OF OUR NATION

Gabe Hanzeli kent wa
Gabe Hanzeli kent wa
9 months ago

the leftists are terrified of trump.
Every single one of them completely ignored the massive crimes of Biden but love making up schiff about trump. I hope trump wins just because the left hates him. I hope the house and senate goes to the republicans and there is a massive number of democrats that go to prison. with each one that goes to prison trump can do a speech saying it is a great day for american that we have imprisoned another leftist democrat domestic terrorist.

Will O the Wisp
Will O the Wisp
9 months ago

Cowards, if you cannot stand toe to toe, in truth and fact, drop over the edge and shut the hell up. Weasels!

True Texan
True Texan
9 months ago

RR – It sounds like you need to remove yourself from this website and seek one that fits you best for your brainwashed political views.

Michael Lewis
Michael Lewis
9 months ago

The Federal press exemption exists only for those media businesses approved by the state! HUMAN BEINGS are not eligible for a state or federal press exemption, including journalists! Media businesses, social media and the FBI have conspired to silence “We the People” and they have used millions of our taxes to fund their goals!
Call the Federal Election Commission and ask them if an individual citizen can enjoy the press exemption? The answer is no. Does that not act as prior restraint? Are “exempt” media corporations required to report regularly to the FEC the source and cost of their political expenditures? Are media corporations restricted who can fund them and who they can coordinate with? Was the 1st Amendment written to protect the freedom of expression of media corporations or flesh and blood citizens? Where does the 1st Amendment distinguish between corporate and individual expression? Where does the 1st Amendment set limits on expenditures or reporting requirements? Where does the 1st Amendment create or authorize the existence of the FEC?
The World Economic Forum is not required to register with or report its political activities to the Federal Election Commission although many of its goals are clearly at odds with our United States Constitution. A large portion of the media in the United States are owned by billionaires and huge investment firms also have considerable influence over the mainstream media in the United States and around the world. Americans who want to defend their constitution do not enjoy the free press rights that media businesses have attained by promoting campaign finance laws that deny free press rights to people! The price of exercising Free Press in the United States is buying or starting an exempted media business!

Rabi
Rabi
9 months ago

This is insane this is not America, this is a disgrace! When will this be stopped. I heard Congress can defund the DOJ and stop this nonsense! Pray!

Robert Zuccaro
Robert Zuccaro
9 months ago

Wow, you really got him with that one. Brilliant!

Dan W.
Dan W.
9 months ago

Speaking of going to law school, even the most inexperienced defense attorney would tell their client to keep their trap shut before the trial.

President Trump may choose not to testify during the trial so he should not help the prosecution now by making statements that could be used against him during the trial.

jocko
jocko
9 months ago

THERE IS ONLY ONE SURE AND PERMANENT WAY TO STOP THE CANCEROUS, ANTI-AMERICAN, CHEATING, LYING, libs AND IT’S NOT THRU ELECTIONS………

Stephen Russell
Stephen Russell
9 months ago

Goes Both ways Smith

Secret Service agents rush Donald Trump off the stage.(AP: Evan Vucci)
President Joe Biden greets President of the People’s Republic of China Xi Jinping, Wednesday, November 15, 2023, at the Filoli Estate in Woodside, California.(Official White House Photo by Carlos Fyfe)
President Joe Biden speaks on the phone with Texas Lt. Gov. Dan Patrick to discuss his approval of a FEMA disaster declaration in response to the impacts of Hurricane Beryl, Tuesday, July 9, 2024, in the Oval Office of the White House. (Official White House Photo by Adam Schultz)

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