A new Supreme Court decision could bolster the ongoing probe into claims Donald Trump attempted to overturn the results of the 2020 election.
In a jointly penned column for Slate magazine on Tuesday, Harvard law expert Laurence Tribe, and erstwhile federal prosecutor Dennis Aftergut, shed light on a recent SCOTUS ruling that could allow the probe to employ Trump’s own tweets against him.
The pair argue that the case could hone in on Trump’s tweet to his then-vice president during the Capitol riot: “Mike Pence didn’t have the courage to… protect our Country.”
The theory behind the potential indictment is that Trump’s tweet on January 6, at 2:24 p.m., may have constituted a threat or attempt to intimidate Pence. This would have been an effort to deprive Pence and by extension the voters whose ballots his role was meant to count, of their constitutional right to have the electoral votes lawfully counted during the Joint Session of Congress.
Minutes before the joint session kicked off at 1:05 pm on January 6, Pence had informed Trump that he intended to exercise his right as VP and oversee the vote count. Trump’s tweet came 11 minutes after the Capitol breach and after White House Chief of Staff, Mark Meadows had alerted Trump to the violence.
Trump’s tweet could be interpreted as having one or more of three objectives.
First, it may have been a direct attempt to intimidate and threaten Pence into following Trump’s demands using the mob’s presence at the Capitol. Second, it could have aimed to incite the insurrectionists to threaten or intimidate Pence to abandon his duty as presiding officer and have the votes lawfully counted. Lastly, it could have sought to seek revenge on Pence for not complying if the first two attempts failed, thereby attempting to punish him for exercising his constitutional right, which would be a violation of the statute.
Counterman v Colorado
The June 27 Supreme Court ruling in Counterman v Colorado is significant to understand how this civil rights statute charge might be supported. The Court held that a mental state of recklessness for threatening violence is sufficient to prove “true threats,” which lie outside the protection of the First Amendment.
The civil rights non-profit Foundation for Individual Rights and Expression described the ruling as “largely good news for the First Amendment because it sets a higher bar for punishing speech as a ‘true threat.’ Fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday.”
Tribe and Aftergut highlight that “Recklessness” in this case, meant that the individual issuing a threat “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
They also claim that the context of Trump’s tweet was clear, with the Capitol mob already inside Congress. His words appeared to target Pence and were recklessly inflammatory. Unlike a conditional statement in another case, Trump’s tweet lacked any conditions. Testimonies from witnesses who saw the tweet in real time further indicate its impact and recklessness.
Pence’s Life ‘in Danger’ on January 6
Last year the House January 6 committee revealed a court filing from the Department of Justice that highlighted the threat to Vice President Mike Pence’s life during the Capitol attack.
The Proud Boys, an extremist group, had plans to kill Mike Pence, and some rioters chanted “Hang Mike Pence” during the attack, and the panel’s chair Bennie Thompson (D-MS) has argued that “Mike Pence’s courage put him in tremendous danger.
Multiple witnesses testified about Trump’s actions and the impact on the crowd’s anger, leading to chants for Pence’s hanging.
The committee played footage showing Trump telling his supporters that Pence could stop the election certification.
Pence refused to comply and was rushed to a secure location due to the threat posed by the mob.
Trump Outpaces Republican Rivals
Trump continues to vehemently deny any wrongdoing and recently told a Fox News Town Hall in Iowa that special counsel Smith was a “deranged prosecutor” in a post on his Truth Social platform, where he disclosed the existence of the target letter on Tuesday evening.
Still, his lead in the race for the GOP nomination continues to widen.
A recent Fox Business survey found that 46 percent of potential Iowa Republican caucus-goers expressed support for Trump. Florida Governor Ron DeSantis and South Carolina Senator Tim Scott received 16 per cent and 11 percent of supporters respectively.
Former Vice President Mike Pence is currently polling at 4 percent, entrepreneur Vivek Ramaswany is at 6 percent and former U.N. Ambassador Nikki Haley is at 5 percent.
Georgia Gilholy is a journalist based in the United Kingdom who has been published in Newsweek, The Times of Israel, and the Spectator. Gilholy writes about international politics, culture, and education.
From 19FortyFive
The Second American Civil War Has Begun
