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Why Trump Finds No Refuge In The First Amendment

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When the mob of Donald Trump fanatics invaded the U.S. Capitol on January 6, one of them carved a vivid message into a door: "Murder the media." So, it is only fitting that the former president's lawyers are defending him in his Senate impeachment trial by claiming the protection of ... the First Amendment. You know, the one that protects the media.

That provision bars the government from "abridging the freedom of speech, or of the press." The framers placed a high value on ensuring that newspapers and pamphleteers could operate without getting permission from the government or anyone else.

But MAGA nation is openly hostile to any journalists who don't champion its cause. At the Capitol, participants harassed, threatened and assaulted reporters. One group of people screamed, "CNN sucks!" as they smashed an Associated Press crew's cameras and other equipment.

The acting U.S. attorney for the District of Columbia, Michael Sherwin, urged anyone with information about these episodes to report it. "We are resolutely committed to upholding the freedoms guaranteed by the First Amendment, including speech, peaceful assembly and press, and we will investigate, prosecute and hold accountable anyone who attempts to obstruct or curtail these freedoms through violence or intimidation," he said.

Violence against journalists is the predictable result of Trump's venomous attacks against anyone daring to broadcast or publish any information casting him in a bad light. He has frequently labeled the press "the enemy of the people."

He persisted in his incendiary rhetoric, even after it proved literally incendiary: In 2018, a Trump-worshipping nut case mailed pipe bombs to CNN's New York office and several prominent Democrats. The bomb maker got a 20-year sentence.

Trump and his cult take the view that the First Amendment should protect their right to say and tweet anything they want — but not the right of news organizations to dispense information refuting their claims.

He even thinks social media firms, notably Twitter and Facebook, should be required to spread his fabrications — more evidence that he has no clue about the First Amendment. It was meant as a check on government, not on private companies, which are free to take a pass on dishonest propaganda.

Trump has long dreamed of using the legal system to bankrupt news organizations. "I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money," he vowed. So, what's stopping him? Oh, right — the First Amendment. The Supreme Court has ruled that it sets a high bar for defamation suits by public figures.

Commentators can't be held liable even for erroneous accusations unless they deliberately lied or showed a "reckless disregard" for the truth. Accurate claims — what Trump has the most reason to fear — are fully protected. If a news organization had indeed published articles about him that were purposely false, it would be at high risk of ruinous judgments. Trump has filed or threatened to file a host of libel suits — but has never won one.

As it happens, you don't necessarily need to change the libel laws to punish vicious smears. The election technology company Smartmatic has filed a $2.7 billion lawsuit against Fox News, three of its anchors, and Trump lawyers Rudy Giuliani and Sidney Powell for an alleged "conspiracy to defame and disparage Smartmatic." The Trumpist network Newsmax reacted to the threat with an on-air admission that various claims about Smartmatic and Dominion Voting Systems were false.

Trump's Senate lawyers advanced the novel argument that his statements inflaming those attending the January 6 rally near the White House are protected by the First Amendment. It is one of the constitutional provisions, they say, that "specifically and intentionally protect unpopular speech from government retaliation." But the Supreme Court has long held that the government may punish speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." A group of 144 legal scholars and lawyers, some of them conservatives, said the argument was "legally frivolous."

Trump and his followers have a tortured relationship with the Constitution. They want it to shield them when they lie and punish critics when they tell the truth. So far, they have been unable to twist the First Amendment to serve their nefarious purposes. That failure is the ultimate vindication of its value.

Steve Chapman blogs at http://www.chicagotribune.com/news/opinion/chapman. Follow him on Twitter @SteveChapman13 or at https://www.facebook.com/stevechapman13. To find out more about Steve Chapman and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

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Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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