Some Initial Thoughts on the Trump Indictment

Analyzing the First Amendment Defenses of Donald Trump Under Count 3

As most are aware, Donald Trump was indicted this week for the third time, this time for his role in the January 6th, 2021 attack on the Capitol.¹

Many defenders of Donald Trump have raised alarm and criticized his most recent Indictment over criminalizing what is arguably Trump’s protected speech under the First Amendment. They have also suggested that the Indictment is criminalizing Trump’s constitutional right to pursue a legal challenge to the election results.

For non-lawyers, the best way to explain this argument is that even if everything in the Indictment is true and all the elements of the crime are proven, the First Amendment would prohibit convicting Trump. It’s akin to a conviction for burning the American flag where someone has burned the American flag and a law prohibits burning it. Under the First Amendment, that law is unconstitutional and the conviction must be vacated.²

It’s important to address this issue because free speech rights are very important and arguments alleging their restriction should be evaluated carefully, not just dismissed because we really dislike the speaker.³ And it is true that Donald Trump does not have lesser free speech rights under the First Amendment simply because he was President of the United States.⁴

I have never taken the attitude of “If Trump does it, it must be illegal!” And I have always tried my best to evaluate claims of his alleged criminality from as evenhanded a position as I can possibly take, notwithstanding my personal partisan affiliation as a Democrat and my utter contempt for him.

So, while it would be easy to dismiss the First Amendment concerns raised in his defense, as many in the media have rushed to do, it’s important to take these concerns seriously and evaluate them.⁵

Having done so, however, Count 3 of this Indictment does not appear to impinge upon Donald Trump’s protected free speech rights under the First Amendment.⁶

One of Trump’s former lawyers, Ty Cobb, who believes the Indictment is fully constitutional, likened Trump’s actions at his infamous speech on January 6, 2021 to Tony Soprano telling a mob associate to go whack someone. It is true that the First Amendment does not protect Tony Soprano from murder charges in that instance.⁷

But in terms of political speech, the analysis is different.

Let’s take an imagined example with different politicians, politicians who those of us on the left really like. Let’s imagine that Congresswoman Maxine Waters (D-CA) and Senator Elizabeth Warren (D-MA) lead a rally against recent United States Supreme Court rulings on abortion and affirmative action.

At the rally filled with angry protestors, Senator Warren declares “We need to fight this outrageous injustice! Brett Kavanaugh likes beer, huh? I’ll show him what I can do with a beer!” Senator Warren then downs an entire can of Coors and crushes it with her hand. “Listen,” she tells the cheering crowd, casually tossing away the crushed can, “I had it tough growing up on the ragged edge of the middle class. Hell, I joined a gang when I was only 11. I once broke a man’s arm just to see what it looked like. And with Brett the Rapist, I might just do it again!”⁸

Congresswoman Waters then declares “And not only that, we all have to do our part for justice! If you see one of these Justices out on the street or at a gas station or in a restaurant or shopping, let me tell you what you should do. You don’t just ignore them. You need to go up to them, get in their face, be loud, and you make a scene! Because we need to raise hell against what’s going on!”

Has a crime been committed by either of them?

Perhaps in the United Kingdom,⁹ but not here in the United States.¹⁰

Now, let’s further imagine that Congresswoman Waters then declares, “So I’m going to tell you what we’re going to do! We are going to go march on over to Clarence Thomas’s house and we are going to raise hell! Because Uncle Clarence is not listening to us. And we need to show him we mean business! We are going to march over to his house and we will demand our fair and equitable treatment!”

Senator Warren approvingly responds with “Let’s do this!”

The crowd proceeds to disperse in order to head over to United States Supreme Court Justice Clarence Thomas’s house for a protest. Congresswoman Waters (in her all-electric Mercedes two-door convertible) and Senator Warren (in her Subaru with her Golden Retriever Bailey riding shotgun) both start driving in the direction of Justice Thomas’s House.

Has a crime been committed by either of them?

Again, no.¹¹

But they’re not the first from their rally to arrive at Justice Thomas’s house.

Instead, Congresswoman Alexandria Ocasio-Cortez (D-New York), who was present at the rally, arrives first. She’s not just upset over the Supreme Court decisions; she’s also upset that she didn’t get a speaking spot at the rally. And she feels a deep desire to prove that she is a true leader among today’s elected officials.

Thus, in her righteous quest for (1) social justice, (2) equity, (3) the ability to speak her personal truth, (4) ending the continued perpetuation of systemic oppression by the straight white male patriarchy, and (5) stopping microaggressions, AOC sets Justice Thomas’s house on fire.¹²

Are Congresswoman Waters and Senator Warren legally responsible for AOC’s crime of arson?

Again, no.¹³

This might seem controversial. Didn’t both Congresswoman Waters and Senator Warren inspire AOC’s act of lawlessness and felony destruction by their emotionally charged, “hateful”, and “violent” rhetoric? Didn’t they ensure that AOC would commit her crime?

Perhaps philosophically. But legally, that cannot be used to prosecute someone for a crime.

The First Amendment protects what Congresswoman Waters and Senator Warren said, even if their speech encouraged violence and criminality.¹⁴ Similarly, the First Amendment protects their speech even though many might consider it offensive.¹⁵ The criminal actions of other random people in response to one’s speech does not give the government a right to restrict one’s speech as a consequence.¹⁶

There is a clear difference between Charles Manson ordering his followers to murder Sharon Tate or Tony Soprano ordering an associate to carry out a mob hit and a person who you do not know and have no prior agreement with to carry out a specific crime committing a criminal action because your words somehow inspired them.¹⁷

And think about how dangerous it would be to one’s First Amendment rights if you could make a person criminally or even civilly responsible for the bad actions of a third party who one truly has no control over. One would have to worry that anything they say could become the subject of criminal prosecution or civil litigation because somewhere, some wacko could decide to commit a criminal act and it would be up to a jury to decide whether your speech influenced that action.

If Donald Trump was facing an indictment solely for the actions of the crowd on January 6th, 2021 after he encouraged them to march to the Capitol, I would have a problem with the Indictment. Because as much as I happen to detest Donald Trump, he has First Amendment rights like everyone else. And those rights cannot be superseded simply because a group of Neo Nazi morons attacked the Capitol.

Moreover, I would have a problem with the idea of convicting Trump solely because he worked up the crowd to believe that the election was stolen and spent months making false claims about the election being stolen from him. Those who attacked the Capitol on January 6th, 2021 all had agency. They all had a duty to follow the law and a responsibility to think for themselves.

However, Count 3 of the Indictment does not prosecute Trump for any of his false statements or even for the speech he gave on January 6th, 2021 just before the violence began. Instead, the Indictment alleges he obstructed an official proceeding.

Specifically, Count 3 charges him with a violation of 18 U.S.C. § 1512(c)(2). This provision provides:

“Whoever corruptly—otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

An “official proceeding” includes “a proceeding before the Congress”.¹⁸ The term “otherwise” in this statute means to obstruct, influence, or impede any official proceeding in a different manner other than destroying official records or documents.¹⁹ 18 U.S.C. § 1512(c)(1), in contrast, prohibits attempting to destroy or tamper with evidence for use in an official proceeding.²⁰

Furthermore, “the statutory words ‘obstruct or impede’ are broad. They can refer to anything that ‘block[s],’ ‘make[s] difficult,’ or ‘hinder[s].’”²¹ The term “corruptly” in criminal law means an intentional act to give a person a benefit or advantage that would not be normally permissible and conflicts with the rights of others.²² To do something corruptly requires a conscious knowledge of one’s action.²³

Those who participated in the January 6th insurrection obstructed and impeded the Congressional certification of the Electoral College votes, which was an official proceeding under 18 U.S.C. § 1512(c)(2).²⁴

As Paragraph 121 of the Indictment against Trump states, “The attack on the Capitol obstructed and delayed the certification for approximately six hours, until the Senate and House of Representatives came back into session separately 8:06 p.m. and 9:02 p.m., respectively, and came together in a Joint Session at 11:35 p.m.”

Those who attacked the Capitol did so for the personal benefit of Donald Trump.²⁵

Had the House of Representatives been unable to certify the results of the election and thus no candidate had won a majority of the Electoral College, Congress would have to elect the President.²⁶ In cases where Congress is tasked with electing the President, the Constitution provides that the vote is not conducted by individual members of Congress, but instead each state has one equal vote.²⁷

Now, on January 6, 2021, the Democrats held the majority of the House of Representatives. However, notwithstanding being in the minority, Republicans controlled the majority of Congressional delegations in 27 states.²⁸ Democrats controlled the majority of Congressional delegations in only 20 states.²⁹ In 3 states, the Congressional delegations were evenly split.³⁰

Thus, the Republicans held a majority for purposes of the Congressional vote for President. Had there been a vote by Congress, it is likely that enormous partisan pressure would have forced the House to elect Trump, even though he had decisively lost both the Electoral College and the popular vote. As alleged by the Indictment, Trump knew this and he hoped for this outcome.

Alternatively, under a now repealed provision of the Electoral Count Act, had there been no certification of the electoral votes, state legislatures would have the authority to pick their own slate of electors.³¹ Joe Biden had won the Presidential election in Arizona, Georgia, Michigan, Minnesota, New Hampshire, Pennsylvania, Wisconsin, and in Nebraska’s 2nd Congressional district. Republicans controlled the state legislatures of these states and could have then certified a slate of Trump electors.

Thus, impeding and stopping the certification of the Electoral College on January 6th, 2021 personally benefitted Trump because it would have allowed him to remain President even though he had lost re-election. As the Indictment alleges (and as is publicly known), Trump knew of this potential chicanery and wanted to remain President even though he had lost re-election.

Let’s return to the invented scenario involving Maxine Waters, Elizabeth Warren, AOC and imagine a further fact twist.

Suppose while on the way to Justice Thomas’s house, both Congresswoman Waters and Senator Warren learn that AOC has set Justice Thomas’s house on fire. Something that is known both from witnesses present with both women at the time as well as from their own posts about the fire on social media while it was taking place. Upon hearing the news, both decide to help ensure that AOC is successful in burning down Justice Thomas’s home.

Spotting the fire trucks rushing Code Three to Justice Thomas’s house, both Congresswoman Waters and Senator Warren intentionally drive their cars in front of the firetrucks and proceed to alternate between doing donuts and driving at a pace of 5 miles an hour to slow down the responding firetrucks.

When they finally arrive at Justice Thomas’s home, both women intentionally park in front of the nearest fire hydrants to block firefighters from quickly accessing water to put out the fire. For good measure, both women attempt to physically block the firefighters attempting to respond.

Have Senator Warren and Congresswoman Waters now committed a crime? At this point, yes.³²

Why? Because they have joined the crime in progress, assisting in the act of arson, becoming fully culpable themselves.³³ The act of joining in the crime of another typically makes you a principal to a crime.³⁴ Here, actively trying to block the firefighters from putting out the fire aids and abets AOC’s act of arson.

Impassioned speech cannot be made into a crime simply because we dislike the speech or because some people, upon hearing the speech, decide to run with it, and commit criminal acts.³⁵ Even violent and threatening speech receives full First Amendment protection.³⁶ However, in most states, arson is typically a felony.³⁷

So, in this imagined scenario, everything that Senator Warren and Congresswoman Waters say and do is protected under the First Amendment, until they join in the actual act of arson of Justice Thomas’s home. While a prosecution for what they said in their speech, their drive over to Justice Thomas’s home, and the independent act of arson by AOC would not be permissible under the First Amendment, a prosecution for assisting AOC in burning down Justice Thomas’s house would.

Count 3 of the Indictment does the equivalent against Donald Trump. The Indictment details his activities to overturn the election results and discusses his speech on January 6th prior to his supporters storming of the Capitol.

But the actual crime alleged begins after he addresses the crowd.

• Paragraph 107 of the Indictment alleges “Before the Defendant had finished speaking, a crowd began to gather at the Capitol. Thereafter, a mass of people – including individuals who had traveled to Washington and to the Capitol at the Defendant’s direction—broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.”

• Paragraph 108 of the Indictment alleges “The Defendant, who had returned to the White House after concluding his remarks, watched events at the Capitol unfold on the television in the dining room next to the Oval Office.”

• Paragraph 109 of the Indictment alleges “At 2:13 p.m., after more than an hour of steady, violent advancement, the crowd at the Capitol broke into the building.”

• Paragraph 110 of the Indictment alleges “Upon receiving news that individuals had breached the Capitol, the Defendant’s advisors told him that there was a riot there and that rioters had breached the building. When advisors urged the Defendant to issue a calming message aimed at the rioters, the Defendant refused, instead repeatedly remarking that the people at the Capitol were angry because the election had been stolen.”

• Paragraph 111 of the Indictment alleges “At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

• Paragraph 112 of the Indictment alleges “One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.”

• Paragraph 113 of the Indictment alleges “At the Capitol, throughout the afternoon, members of the crowd chanted “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!””

• Paragraph 114 of the Indictment alleges “The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors—including the White House Counsel, the Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful”

• Paragraph 115 of the Indictment alleges “At 3:00 p.m., the Defendant had a phone call with the Minority Leader of the United States House of Representatives. The Defendant told the Minority Leader that the crowd at the Capitol was more upset about the election than the Minority Leader was.”

If proven true, we have the following elements:

1. Donald Trump had full knowledge of the violence taking place at the Capitol. (He had not, for example, left for a trip to remote Greek Islands without any modern communication devices, leaving himself completely off the grid).

2. Donald Trump had full knowledge that the Capitol Police had been over-run and that members of Congress and the Vice President were being evacuated for their own safety.

3. Donald Trump had full knowledge that the violence of his supporters was obstructing the certification of the Electoral College votes.

4. Donald Trump knew that he stood to personally gain from stopping the certification of the vote through the violent activities of his supporters.

5. Donald Trump refused to take any affirmative steps to stop the obstruction of the certification of the Electoral College votes.

6. Donald Trump attempted to use the violence to force Kevin McCarthy to try and block the counting of Electoral College votes or at least further delay the proceedings.

7. Donald Trump continued to encourage the insurrectionists on social media even as he watched the violence unfold.

8. Donald Trump continued to encourage rioters at the Capitol even after there was no more lawful purpose for which one could protest and even after violence had broken out.

Now, while Trump held the same First Amendment rights while serving as President as any other American, the Constitution gives the President special powers that no other citizen possesses, giving him far greater duties and legal obligations to protect the public and the Constitution. Duties and obligations that knowingly failing to meet would constitute assisting criminal action against the United States.

When sworn into office, the President takes an oath that he will “solemnly swear (or affirm) that [he or she] will faithfully execute the Office of President of the United States, and will to the best of [his or her] Ability, preserve, protect and defend the Constitution of the United States.”³⁸ The President “shall be bound by Oath or Affirmation, to support this Constitution.”³⁹

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”⁴⁰ The President is also required to “take Care that the Laws be faithfully executed.”⁴¹

The certification of the Electoral College votes proceeds under both the United States Constitution and the Electoral Count Act, which is a federal law. Trump was legally obligated, as the President, to uphold and defend the proceeding.

He failed to do so in even the most minimally possible way.

Even though fully aware of what was taking place, he made no attempt to marshal military forces to protect the Capitol after it had been over-run, even though as commander and chief, he had an obligation to protect it. He did not inquire as to the safety of the situation with military and police chiefs.

He made no effort to protect the other elected officials, who were carrying out their constitutional duties, even once he learned that their lives were at risk. Even though he had full access to his social media accounts and knew his supporters were committing violent acts in his name, he did not even put out a statement asking for his supporters to please cease the violence.

Instead, he even tacitly encouraged the violence as the day wore on. Moreover, he even attempted to utilize the obstruction of the Electoral College certification to his advantage over Kevin McCarthy. That is the very definition of acting corruptly to obstruct an official proceeding.

It honestly stretches credulity, but I will assume for the sake of argument, that Donald Trump (1) reasonably believed that Mike Pence had the legal ability to throw out the legitimate election results and throw the election to the House of Representatives, (2) encouraged the insurrectionists to march on the Capitol for the purpose of influencing Congressional Republicans and Mike Pence to act in his favor, and (3) believed his supporters were merely going to peacefully lobby.

Even accepting this, Trump knew there was no more purpose to his supporters at the Capitol than for a violent purpose after Mike Pence had decided to follow the Constitution and Electoral Count Act and accept the results of the election. At that point, by his inaction, Trump aided and abetted the obstruction of the certification, making him a principal to their crime and equally guilty.⁴²

There is a precedent for prosecuting Trump for his actions in United States v. Shipp,⁴³ the only trial ever conducted by the United States Supreme Court. Shipp concerned the fall out from the lynching of a black man, Ed Johnson, in Hamilton County, Tennessee (Chattanooga), who had been convicted of rape.⁴⁴ While Johnson appealed his conviction, he was held in custody in the Hamilton County jail.⁴⁵

Worried that the Supreme Court might hear Johnson’s appeal and that the appeal might lead to a reversal of his conviction, a large group of local white men began organizing to prevent this possibility.⁴⁶ Far from clueless as to what was happening, the Sheriff and his deputies were fully apprised that a local mob was forming for the purpose of lynching Johnson.⁴⁷ In sympathy with the mob, the Sheriff and his deputies abandoned the county jail, leaving Johnson alone to be killed.⁴⁸

At the United States Supreme Court trial, it was undisputed that the Sheriff “was the duly elected, qualified and acting sheriff of Hamilton County, Tenn., and as such sheriff had and exercised full charge and control of the county jail located in Chattanooga, and was the legal custodian under the laws of Tennessee of all persons duly committed in said county under the laws of the State to confinement and imprisonment within the jail.”⁴⁹

It was also undisputed that due to prior events and newspaper editorials that the Sheriff and his deputies knew Johnson was in danger of being lynched, especially if there was a successful appeal of his conviction.⁵⁰ Johnson had already been moved to jails in other counties for his own protection.⁵¹ Furthermore, the Sheriff was personally informed that the United States Supreme Court had granted a stay of Johnson’s execution and that he had become a federal prisoner.⁵²

In response, the Sheriff abandoned the county jail, removed all but one of his deputies, moved other white male prisoners from the jail, and left the one deputy on guard with the keys to the cell so that he could give the keys to the advancing mob.⁵³ Although the sole deputy handed over the keys to the jail cell without resistance, they apparently did not work for the cell that Johnson was in and it took over an hour for the mob to break through to the cell, during which time, the Sheriff made absolutely no response.⁵⁴

Despite the fact that the Sheriff had access to weapons, extra available deputies if needed, advance warning of the mob, knowledge of the attack in present time, and promises of assistance from the Governor, the Sheriff did absolutely nothing in response.⁵⁵ As the Court concluded, “Only one conclusion can be drawn from these facts, all of which are clearly established by the evidence -- [the Sheriff] not only made the work of the mob easy, but in effect aided and abetted it.”⁵⁶

Basically, the Sheriff abandoned his duties to protect a prisoner and allowed a mob to kill an inmate because he wanted it to happen. By his knowing dereliction of duty, he was as guilty of killing Johnson as the local mob was. The Supreme Court found the Sheriff guilty and locked him up for his crimes.⁵⁷

That is what Trump did on January 6th, 2021 and what Count 3 of the Indictment charges him for. The Indictment does not charge him for his speech, it charges him for joining the actions of those corruptly impeding and obstructing an official proceeding.

Even if he was not legally responsible for starting the obstruction of the Electoral College certification, Trump clearly joined the obstruction once it began. This makes him a principal to acting to corruptly impede and obstruct an official proceeding. For that, there is no First Amendment protection.

Count 3 of the Indictment is constitutionally sound.⁵⁸

1. https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.1.0_1.pdf

2. United States v. Eichman, 496 U.S. 310, 312 (1990)(striking down a federal ban on flag burning as a violation of the First Amendment); Texas v. Johnson, 491 U.S. 397, 414 (1989)(“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”)

3. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719, 1732-1734 (2018)(Kagan, J., concurring)(explaining that the Colorado Civil Rights Commission’s failure to properly consider the First Amendment claims of the cake maker warranted reversal).

4. See Bond v. Floyd, 385 U.S. 116, 135-137 (1966) (holding that the Georgia State Legislature could not exclude the duly elected Julian Bond for his criticism of the Vietnam War and the draft because of Bond’s First Amendment protected rights).

5. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

6. I am not saying Count 1 and Count 2 are not constitutionally sound. I just have not had the time to read and review them closely to make a judgment call.