Genevieve Lakier (Chicago), Rick Hasen (UCLA), and I on "The Trump Prosecutions, the First Amendment, and Election Interference"

It was such a pleasure to be on this panel (part of the Safeguarding Democracy Project's webinar series) on Tuesday here at UCLA. Genevieve is always excellent, and Rick—one of the top election law scholars in the country—did a great job moderating. Hope some of you folks will enjoy watching this as much as I enjoyed participating.

Comments

[Vryedni]

I’d have thought it should be “Genevieve Lakier (Chicago), Rick Hasen (UCLA), and me on “The Trump Prosecutions, the First Amendment, and Election Interference”.” Anyway, that's how it sounds to my ear. I’m sure you’re right, so I’m surprised.

[Eugene Volokh]

Different people have different views on this; I viewed the heading as the equivalent of the sentence "Genevieve Lakier (Chicago), Rick Hasen (UCLA), and I [were speaking] on 'The Trump Prosecutions, the First Amendment, and Election Interference.'" And that calls, to me, for the nominative case, just as one would say "I was speaking" rather than "me was speaking."

But indeed many people tend to use "me" at the end of such lists rather than "I," even in the nominative. And of course the verb was elided in the headline, so people might read it differently, for instance, as "[Watch] Genevieve Lakier (Chicago), Rick Hasen (UCLA), and I on 'The Trump Prosecutions, the First Amendment, and Election Interference,'" which would indeed be odd, since there the first-person pronoun would be in the accusative case (so it should be "Watch ... me").

[Roger S]

The prosecutors, press, and DC jury pool are 95% Trump haters. Even tenured law professors are afraid to speak up in favor of Trump, as they might get canceled. Now a judge says that Trump must not criticize the substance of the testimony against him, or it will damage government efforts to get a fair trial. This is crazy. Trump is not going to get a fair trial, and he has every right to complain publicly about it.

[Stephen Lathrop]

Does everyone get free rein to threaten participants in the judicial process, or is it just Trump?

[Krayt]

Is the judicial process used to attack a political opponent before an election, or just Trump?

[David Nieporent]

I did not realize that Jack Smith was running for president.

[VinniUSMC]

We know SL, you hate free speech and want to go back to "the good old days" when you controlled the speech that was "worth" publishing.

[Roger S]

Trump is not just ordered not to threaten. He cannot criticize the substance of testimony. Even if he appears in a presidential debate with Pence, and Pence says that he did the right thing on Jan. 6, 2021, Trump is forbidden to disagree.

[Caphon]

I will watch and I’m sure be the smarter for it, but so far it has seemed entirely like a set of political show trials running in parallel. These orders that come out of them (gag orders, attempts to shut down businesses) have so far only reinforced that impression.

[Caphon]

Yep, Genevieve is awesome. Could have listened for another hour of you two.

Mm.. at times I think the academic interest in the outcome of this is simply viewed as sport - which I fully understand and indulge in as well. However, given the timing, I remain unconvinced that there’s any purpose to these trials other than tying up Trump’s attention and resources in the run up to the election. And a gag order like this, “nuanced” as it is, seems like a perilous line to walk with substantial risk of further entanglement and offense. A trap for the defendant. Lawfare, plain and simple. Through that lens, the bigger and more interesting question to me is how any non-billionaire would possibly stand up to this while running for office. If this is the new playbook, we’ve seen the last of any non-establishment candidates that can gain traction with the public. I doubt there would be any reflection on the wisdom of the tactics if Trump is found not guilty, while him being found guilty and somehow barred from office over it would cement the approach as a resounding success, to our collective detriment as a nation, I believe.

[Stephen Lathrop]

Caphon, I am less supportive of Trump than you are. My concern is that his candidacy gets him any traction at all, let alone a stay out of jail free card. Trump should get due process, measured against the standard of what you or I could expect.

On that basis, with regard to the documents case, Trump would be in jail now, awaiting trial. Even leaving that case aside, I doubt an ordinary criminal defendant who threatened witnesses the way Trump has done—and who had powers comparable to Trump's to make good on his threats—would be walking around free and making more threats. It seems an obvious attempt to bait judges into giving him fodder for a Supreme Court appeal.

I think Trump's treatment has been an outrage, but an outrage for its leniency, not for its severity. I ascribe that to likely well-founded concern on the part of judges in the cases that to treat Trump like any other defendant would be seized upon by the right wing of the Supreme Court as an excuse to corrupt justice on Trump's behalf. I think that is what Trump's supporters want and expect. It seems to be what you want and expect. Your comment tosses a brick on the scales of justice on behalf of political outcomes, with no evident regard for justice itself.

[Brett Bellmore]

There are multiple layers of double standards at work here.

On the one hand, it's genuinely true that for at least some of the stuff Trump is accused of, an ordinary joe would be in jail. You or I would certainly have gone to prison for the way he's handled classified documents.

For other things he's accused of, no prosecution would normally have even been considered. 'Fraudulently' over-valuing collateral for a loan long since paid off. That sort of prosecution is essentially unheard of, without any identifiable damages and a complaint.

So, there exists to some extent a double standard of Trump getting better treatment than the average guy. But also much worse treatment in some instances.

BUT.

There's also a long standing double standard of 'important' people getting better treatment than the ordinary guy. You could put half of Congress in jail for insider trading, for instance. The way most of the charges against Hunter were made to disappear. Biden and, yeah, Pence's handling of classified documents.

Trump was, maybe not unreasonably at first, (But unreasonably after a while!) expecting to benefit from THIS double standard, just like the other 'important' people in DC. He didn't benefit much from it.

What we've got here is, paradoxically, a double standard in the way the pre-existing double standard is being upheld.

[David Nieporent]

For other things he’s accused of, no prosecution would normally have even been considered. ‘Fraudulently’ over-valuing collateral for a loan long since paid off. That sort of prosecution is essentially unheard of, without any identifiable damages and a complaint.

1) You don't have the foggiest idea whether this is true. You are simply pulling this claim out of your ass.
2) "That sort of prosecution" isn't in fact a prosecution at all. It's a civil suit, not a criminal prosecution.

[Life of Brian]

You don’t have the foggiest idea whether this is true.

If untrue, it should be easy enough to ascertain. I'll even double it down to make it easier for you: show us one instance where a suit applied this law to "‘fraudulently’ over-valuing collateral for a loan long since paid off." Just one.

[Brett Bellmore]

1) I'm asserting this based on statements by actual law professors I've seen, saying this sort of prosecution in the absence of a identifiable damages or complaints is unprecedented.

2) It's effectively criminal, given the scale of the proposed penalties. Which the judge tried to start imposing BEFORE the trial!

[Sarcastr0]

I’m asserting this based on statements by actual law professors I’ve seen
What law professors. I thought you hated anonymous sources.

It’s effectively criminal, given the scale of the proposed penalties
Well, this is a vibe. Reminds me of the major questions doctrine!

[Noscitur a sociis]

2) It’s effectively criminal, given the scale of the proposed penalties. Which the judge tried to start imposing BEFORE the trial!

This fucking guy...

[Commenter_XY]

David...Can you cite NYC cases with a similar circumstance that was prosecuted = overly ambitious valuation of properties used as collateral for loans that were paid off, with interest, in full.

If this is the new standard, misvaluation of property may be prosecuted as fraud, there are a lot of companies and business interests that are potentially liable. Also, I have never heard of a large business interest like POTUS Trump's whose business certificates were summarily pulled and a forced liquidation ordered in the space of days.

Maybe you know of cases where that has happened. David, it all sounds pretty unusual to me.

[Sarcastr0]

You have flipped the burden. Those asserting that Trump is being unfairly persecuted have the burden.

I do know appraisal fraud is a legit thing - my Mom is a landlord and has mentioned it.

[Life of Brian]

You have flipped the burden. Those asserting that Trump is being unfairly persecuted have the burden.

The burden to prove there are no prior similarly situated cases? That’s of course impossible, and I know you know that. Which is why I’ll repeat my invitation to David above: Show one prior case with even remotely similar facts. Just one.

If this is indeed a garden-variety application of the laws at issue, finding a single case showing that should not be a heavy lift at all.

[M L]

“how any non-billionaire would possibly stand up to this while running for office. ”

Correct. They can’t. If someone is a threat to actually accomplish something for the American people, such as stopping illegal immigration, they simply won’t be allowed to. I don't think this playbook is really all that new, but there's definitely some pages added for Trump.

[Sarcastr0]

The increased reliance by a major party on ignoring the indictments and cases, and just claiming conspiracies by a shadowy pro-[issue du jure] cabal is not going to be a good time for America.

[Archibald Tuttle]

If Trump was smarter, he would show up at the debates with an adhesive tape X over his mouth, and a sign saying, "Silence ordered by Judge Chutkan" Then stand there in silence for his allotted time.

That would drive his followers into a frenzy, and Trump would go up another few points in the polls. A shift of only a few percent may decide the winner in the next election.

If he was jailed, the same effect would boost him in the polls even more. It would perhaps guarantee his election. Many voters love to thumb their noses at established authority.

[David Nieporent]

If Trump was smarter,

he wouldn't have committed all of those crimes.

[Life of Brian]

I have to say I'm immensely disillusioned. I was absolutely certain Sarc would chide you for assuming the allegations are true since that's so fresh on his mind, but here he's come and gone with nary a word. Maybe he got busy and will set you straight next cycle. Fingers crossed....

[Nige]

Is that like how Joe Biden is definitely head of a crime family despite not a single shred of actual evidence but ninety-odd indictments mean we can't possibly think Trump might be slightly shady?

[Nige]

'I've been silenced by this tape I put over my mouth myself and which I can take off whenever I want' would certainly sum it up.

[Seamus]

Remember how the Thieu government's prosecution of Truong Dinh Dzu (the runner-up to Thieu in the 1967 South Vietnamese presidential election) was clear proof of how corrupt and undemocratic the Thieu government was? Good times. Good times.

[Sarcastr0]

The argument that Trump has to be above the law or else we're a banana republic remains a sign of GOP shallowness.

[bernard11]

Madness, I would say.

[Life of Brian]

Fascinating that we're discussing the most recent incidence of the perennial selective enforcement/prosecutorial discretion as we speak.

"Above the law" is a distractive misnomer unless you truly believe the law should be enforced equally against all people in all cases. And if you do truly believe that, then you should be advocating for Trump to be treated the same way as past comparable applications of the laws at issue, which should result in most or all of this kerfuffle going away.

[Nige]

We're not talking about all cases. We're talking about one case, and all the reasons why laws supposedly do not apply to him.

[David Nieporent]

“Above the law” is a distractive misnomer unless you truly believe the law should be enforced equally against all people in all cases. And if you do truly believe that, then you should be advocating for Trump to be treated the same way as past comparable applications of the laws at issue, which should result in most or all of this kerfuffle going away.

There is no president who ever tried a coup before, so there's no "comparable applications" one way or the other. No president who stole classified documents and then refused to return them because "mine mine mine," so no "comparable applications" there either.

[Life of Brian]

There is no president who ever tried a coup before

See, it's because of stuff like this that when you started pompously lecturing about good-faith arguments the other day I sprayed coffee on my screen. Perhaps you should ask Santa for a new book of fairy tales. This comes across as though you've spilled Kool-Aid on the pages of your current one and are trying to recite from memory.

[Seamus]

That's pretty much how the prosecution of Truong was justified.

[Sarcastr0]

I can't parse this. You mean it was attacked as proof of corruption independent of the facts of the case?

Seems bad. Lets not do that.