Free Speech Or Insurrection? The Legal Case Against Trump Holding Office Again

>> Tom Church: This is The Libertarian podcast from the Hoover Institution. I am your host, Tom Church. And that libertarian is Professor Richard Epstein. Here at Hoover, we know Richard as the Peter and Kirsten Bedford Senior Fellow. He's also the Laurence A Tisch Professor of Law at NYU and Senior Lecturer at the University of Chicago.

Richard, we have a lot to discuss following last night's GOP debate, which did not include former President Trump. Now, President Trump is currently, as we're recording this, being booked at Fulton County Jail. But he still leads the polls for the GOP nomination. However, there has been some talk in the legal community that I need to get your learned wisdom on, and that is surrounding this question of whether former President Trump is even eligible to hold federal office anymore.

I think you know what I'm talking about.

>> Richard Epstein: I do know what you're talking about. I think the world has gone very strange ways. What you're doing is you're talking about a position which has been taken by many people, Laurence Tribe and Mike Luttig, one a very prominent constitutional law professor, the other a very distinguished former judge.

And then my colleague in Chicago, Will Baude, and I think he wrote this article. Who did he write it with? Michael Paulsen, right? So those are four names. What I'm going to do is to start reading the applicable cause. It said that president, or hold any office under the United States or in any state so long if he has engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.

And the question is, did Donald Trump do all of these things, or did he do any of those things? Now, I think what you have to do, simply, is to start going down the four indictments and to see which of them, if any of them, can support that.

And, well, when we start coming to what Mr. Bragg does in New York, Trump may have given aid and comfort to lots of people, but in a very different sense. That indictment is, I think, irrelevant to the situation that's taking place here. So we could scratch that one off.

Keeping papers at Mar-a-Lago and flowing them around is not an act of rebellion. So I think that one goes down. So that leaves you down with two. There's the Raffensperger tirade and rant, however you wish to call it, in Georgia, protesting the outcome of the election. And then I think by far the most serious of the charges about his behavior has to do with the events that surround January 6.

On the first of these things, I think it's extremely important that you actually read what is said by Trump. It's a slightly hysterical speech. That's no news for him. But what he's protesting under these circumstances is what he regards as deep irregularities in the way in which the Georgia system has counted votes.

And when he says, I want you to find me 11,000 and change votes, enough to change the outcome of the election, I think it's a mistake to read that sentence out of context as saying he wants you to fabricate a balance at this point to undermine democracy. I think what he's saying is when you go back and examine what has happened in various places, including Fulton County, you will discover that they're massive irregularities.

You don't have to find each and every one of them. You just have to find enough so as to change the outcome of the election. And so there's no question that he's trying to change the outcome of the election. The question is whether or not that statement turns out to be unlawful.

And at this particular point, there are then two questions that constantly circulate about it. The first of these questions is whether or not this man is in good faith or bad faith. Does he absolutely believe this, or does he think that something else is the case? I think it's almost overwhelmingly likely to be the case that Trump believed every word that he said with respect to this.

And more importantly, there are a lot of other people who looked at this thing who also tend to think that he was right with respect to that. And the question then is, if you believe something and other people who on your side believe something, can you do it?

I've seen recent studies which have shown the following kinds of things. I don't vouch for their truth. I mean, this is all a question of evidence. Some people say that they show identical ballots being counted in two or three different locations, and that there are several thousand of these.

That's not saying it's a maximum number. It's saying it's just an upper bound. There could be still more. And then there are pictures of what happened in Fulton. When they shut down the room, everybody left but a few Democratic operatives. And there are pictures showing people feeding the same ballot over and over again into the counting machine.

If these things are true, then I think it's extremely difficult to say that what Trump is doing is asking for something illegal. And even if they're false, what is so striking about this? As best I can tell, everybody who is talking about the Georgia indictment in favorable terms is saying Ms. Fani Willis has managed to weave a web of deceit which captures everybody in it by going after all these people in all those particular places.

She may have the web, but she doesn't have the often. That is, if it turns out that the Raffensperger's debate is not something which was calling for illegality, but was calling for an honest recount of the election which he thought was denied, that can't be a form of unconstitutional behavior.

It's sort of like petitioning government for the redress of grievance, which is something protected under the First Amendment and under every other body of state law. So this thing all hangs by a thread, as far as I'm concerned. Because when I look at the various accounts, I don't see anybody but anybody who comes up and says exhibit A is something like this.

I'd also like to stress that this is extremely different from what happened in the situation on January 6th with Mike Pence. Because in this particular case, we don't have anything that remotely looks like the 12th Amendment with this particular command on how it is that ballots are to be opened and counted in the presidential election.

So it's a much more freeform kind of a situation without any specific offense. So I think that there's going to be, at least at the outset, a very strong effort to derail this thing on the grounds that it's all protected First Amendment speech. As I am currently advised, always subject to revision, I would grant that motion and make that case disappear on what I know.

You can't do that with respect to what happened on January 6. So the question is, does this amount to an insurrection? And here it seems to me you have to talk about two parts of the situation. The first one is you have to talk about the tumult, the breaking in, and everything else that goes on around.

These things are surely criminal offenses, criminal trespasses of some sort. The question is, who managed to induce them? And here again, it turns out that the evidence is always much more complicated than one's allowed. The situation with respect to the so called insurrection of January 6 is very complicated.

We do understand what Trump said, urging people to go over to the Capitol building. And he said, you have to fight to protect your rights. And he made it appear as though you're supposed to speak in protest. The difficulty you always have in these particular cases, there are so many people milling around about the situation that there's a problem of what we call novus actus intervening, a new and intervening cause.

Can Trump defend himself by finding those individuals whom he thinks may have had a role in spurring people to go across? They don't have to be associated with any particular party. All they have to do is to be independent of him for something to say, there may have been an insurrection, but it can't be taken back to Mr Trump.

That's an issue which is likely to come forward as this case is going to be litigated. It would be a mistake to ignore it now. And the difficulty that you have is that the standard accounts here assume that the descriptions that have been given by the J6 committee and other people are 100% accurate.

This will be contested if there's ever going to be a trial. Now, the second thing, of course, is what's the definition of an insurrection or rebellion or aid in comfort. The words aid in comfort are meant to be essentially a reference to the kinds of behavior that is treasonous, aid in comfort to the enemy, and so forth.

I don't think there's anything treasonous that's done by Trump. And when you start talking about an insurrection or rebellion, you have to ask yourself whether a two day occupation of the capital by a bunch of people who don't know better is the same thing as withdrawing from the United States and provoking a civil war.

And it turns out, if you go back to the dictionary and try to figure out what the words insurrection mean, they start talking about open revolt, which means that you're talking about armed bands of people who intend to overthrow the particular government. Which is not the same thing as armed growth, people going into the building and starting to take selfies.

And so I regard the insurrection label as an exaggeration. And I think that people have to be extremely care when they take their own particular preferences embedded in a particular term, which they claim is a description, and then claim extraordinary circumstances. Now, the actions that is most troublesome, as I said, from the beginning to the end, has always been the situation that has taken place when Trump and his various minions have insisted that our good friend Pence can basically examine the ballots and toss them out.

That's not what the 12th amendment says, this is an amendment about chain of custody. Everybody, particularly at a time when the electoral college was a deliberative body, opening the ballots and counting them was a really important thing. Because by the wrong person and counted in the wrong way, you didn't know what the outcome was in advance, as you do today, and so there could be a real theft.

But it turns out that the vice president only has the power to open a ballot, he doesn't even know what it says when he opens it, but it says, they shall then be counted. And this is another example, what I call the constitutional passive. There's a task to be done, but it's never said who's supposed to do it.

The one person who's probably not supposed to do it is the vice president, because what they're trying to do is to, again, have a diffusion of authority. One guy opens it, and then some other nameless functionaries, probably more than one, are supposed to do the count when they're open.

And given that thedbear authority, it doesn't matter whether you think that the decisions they made in the various states were right or wrong. The only thing that has to be done here is to say all of those decisions have to be adjudicated and litigated somewhere else by the time you get here, it's just a ministerial function.

So I think Trump is completely wrong about all this, and I think it's his most serious, serious offense that's charged. But I don't think that that particular kind of offense counts as an armed insurrection or an open revolt, it's not an effort to defy the process, it's an effect to take it over.

I want to stress that I think it's an extremely serious charge, I think that the defenses of this, based upon the First Amendment, are gonna have a lot of explaining to do. But the issue we're not asking now is whether or not he's committed some kind of an offense against the laws of the United States, for which obstruction of justice would be the most obvious.

But I think that the correct point to say is, if this is a case of obstruction of justice, that's a far cry from talking about insurrection in the context of the post civil War period. So I regard these particular charges as stunningly weak, in fact, as overall. And if they were made by people who defended Trump and they said, my God, we have to do this, I might think otherwise.

But this is not like Richard Nixon, where by the time you got to the end of the day, on the question of whether there was a cover up and so forth. There was nobody standing, alive or dead, Democrat or Republican, who was prepared to give Richard Nixon the benefit of the doubt on that issue.

But in this case, I think it may well be a criminal offense, but the thing you always have to remember about criminal offenses, a lot of the difficulty in criminal law is not determining who is or is not a criminal. It's figuring out what the right chargeable offense is, and those are obstruction of justice cases, they're not insurrection cases, in my view.

>> Tom Church: So we've talked about the Georgia case and the January 6 case. We've talked about all these cases, and it seems that they split between some false statement areas where free speech and first member protections are gonna be argued. And then there is the. Well, the conspiracy charges, I suppose.

So I wanna put this to you, Richard, because this legal argument being pitched by not just people on the left, but some serious people on the right, is that the 14th amendment, the section three clause, would be self-executing. And it gets messy, right? Because that could mean who would actually step in and do this, and some suggestion is election officials at state or local areas, and that would be terribly messy.

But my question for you is what happens if we go through the Georgia case or the January 6 case and the conspiracy to commit election fraud charges are granted, he's made guilty on that. Can you imagine, I mean, what does the world look like, does the Supreme Court step in?

Can you imagine state or local election officials saying, okay, he's disqualified, aid or comfort to enemies of the constitution? He has been charged, been called guilty on.

>> Richard Epstein: Yeah, well, I mean, the first thing to understand, I think it's a wild over exaggeration to say that these things are self-executed.

They would be self-executing in the sense of everybody agreed that this was, in fact, an insurrection. But if there's a dispute over the fundamental fact and its proper definition, who is the one who's supposed to decide that? Is it supposed to be a bunch of law professors, can somebody go to a court, if so, which court do they go to, and how do they adjudicate this?

And my view, in the end, it turns out that, like everything else in American constitutional politics, you're not gonna let this thing be resolved by the Supreme Court of any one of 50 different states. And it's gonna go into the federal system, and it's gonna find itself in the lap of the United States Supreme Court, which is going to have to declare, was this an insurrection?

And so forth. Now, it also turns out, by the way, there are mechanisms whereby Congress, what, two thirds of both house or whatever it says, can actually override that determination so as to let somebody back in. So it may be, quote unquote, self-executing as stage one, but there's another clause there.

I think it's fair to say that if one found that this was an election by an official body, the ability to get large numbers of people, including any Democrats, to do it, very unlikely. Now, you also said that these are Republicans, there are two kinds of Republicans, by the way.

There are those Republicans who hate Donald Trump, never Trumpers, and they're those Republicans who like Donald Trump. So as to say, in effect, that you have people here who are Republicans who essentially are talking about Trump, they're not turning against their beliefs. What they're doing is intensifying the beliefs that they already held independently of this, in which everything he's done has been something which they regard as Persona non grata, not excusable.

Now, my position is actually pretty much a lonely one, and I'm proud to be alone on this issue, which is politically, I think I've stated as early as around February 1, 2017. That I did not think as a matter of temperament that Trump was fit for public office, that even if you agreed with his policy.

There'd be somebody else who could execute them without the storm and the drain and the inexcusable boorish behavior of which he is surely credible, and I still believe that. But I don't think because you believe the guy is a bore or a buffooner, anything of the sort that you have a presumption of illegality that attacks to any one of his particular act.

And so far as I'm concerned, the fact that there are so many people who hate him beyond all repair means that you have to be extremely important. Whether you find a Republican or a Democrat, a nice person or a bad person who doesn't like Trump, who then says terrible things about his legal case and so forth.

I just don't think that the two things start to follow. And when I said I think Trump want to resign, I met it, I knew full well that he was not going to listen to me. But I wanted to put a marker out there so as to be somebody who said from the very beginning, if you look at the way this thing is going to start to evolve, it's going to be chaos, one step after another.

Because no matter what you think of his policies, his ability to engage in actions of self indulgent, destructive behavior is second to that of none. Now, his supporters, they're going to basically rally around him because they're going to see this for what it is. They like his behaviors.

I don't. But they were going to start to say, we think that this is a put up job. And when they hear people like me saying, there's some doubt about the way in which all these cases ought to go, whether it's a crime, what crime it is, and so forth, they're just gonna double down in their support upon him.

They will not abandon him for some faceless republican candidate because they think if they're trying to stick it to me, what we have to do is to stick it back to them. And there'll be enough people out there who will take much less nuanced views than I do to say, look, this is all from start to finish, a complete farce.

And if you hear that and somebody says, well, if the guy has been convicted by a set of corrupt institutions and so forth, will you still support him as president? The answer has to be, of course we're going to do it because we just told you we think everything that's going on is corrupt.

And so what happens is the legitimacy issue comes back with a real vengeance. You look at the j six committee in the House of Representatives, that wasn't a balanced committee. They had five Democrats and two Republicans going along with him. When they try to put somebody on that committee who was gonna make misery for them, Nancy Pelosi said no, and then the Republicans boycotted.

It may have been a mistake, it may have been not. But this is not the kind of neutral committee. You look at its charges and they conveniently decide to keep her out of the line of fire. That also isn't particularly good. You look at every one of these prosecutors, they're hard Democrats from start to business.

Fani Willis herself was taken off of one case because she had made political contributions to somebody who might have benefited from the particular outcome that she was supposed to want. And I mean, you've got to show me for this to be credible. Some person there who believes that Trump has done all of that stuff, who is basically temperamentally inclined to think that they agree with his policies.

The fact that you were showing me that there are Republicans who are against Trump doesn't show me anything. What you have to do is to find me Republicans who are in favor of Trump's general policies in person, who reluctantly but emphatically conclude that his behavior is illegal. And the people that you mentioned don't fall into that particular kind of category.

It's a real blurry. Just as the same way when they look at David Weiss, they say, well, you know he was appointed by Trump. Yes, he was. But he was reappointed by Biden with the explicit support of the two Democratic senators from the state of Delaware. So you can't do these kinds of things.

It's extremely difficult. Slow down and think about it. I actually think that on the grand political screen, the only charge that ought to survive is the obstruction charge with respect to Pence. Everything else, I think, should go by the boards. And if that's the situation, you can see why the Trump people say we don't want that to stop.

And then there's also another question. To what extent can a state court proceeding by Bragg or by Willis interfere with the ability of people who disagree with Trump or agree with him to elect him president of the United States in 2024?

>> Tom Church: You've been listening to the Libertarian podcast with Richard Epstein.

As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish at Defining Ideas on hoover.org. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church.

We'll talk to you next time.

>> Speaker 3: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcasts or watch our videos, please visit hoover.org.