Jack Smith's Assault On The Constitution Continues.
Special prosecutor's "gag order" request is not just an attack on Trump, it is an attack on all of our rights.
Jack Smith’s assault on the Constitution, disguised as a “prosecution,” continues unabated. On Friday, as part of his continued effort to destroy the document’s protections of all of us, Smith filed a motion seeking a “narrowly tailored” gag order of President Trump. You can read the motion itself here.
To the uninformed, this sounded like a normal request in a Federal criminal case and the Institutional Media did its best to portray it as such. To those that understand the law and constitution, however, it was an obvious attempt at unilaterally suspending Trump’s Free Speech rights, with an eye towards doing likewise to other Americans in the future.
Just as with Smith’s other legal products, this one is filled with obvious lies. For example, he claims it is “narrowly tailored,” but, in fact, it is so broad that it would permit everyone but Trump from speaking about the case. One need only scan the motion to see that the statements of which the special prosecutors complains are nothing more than ordinary, run of the mill speech, and political speech at that. For example, Smith complains about Trump’s Truth Social post:
@realDonaldTrump
So now that I have full Subpoena Power because of the Freedom of Speech Sham Indictment by Crooked Joe Biden, Deranged Jack Smith, and the DOJ, it has just been reported that the Unselect January 6th Committee of Political Hacks and Thugs has illegally destroyed their Records and Documents. This is unthinkable, and the Fake Political Indictment against me must be immediately withdrawn. The system is Rigged & Corrupt, very much like the Presidential Election of 2020. We are a Nation in Decline!
Smith also complains about this post:
@realDonaldTrump
So now that I have full Subpoena Power because of the Freedom of Speech Sham Indictment by Crooked Joe Biden, Deranged Jack Smith, and the DOJ, it has just been reported that the Unselect January 6th Committee of Political Hacks and Thugs has illegally destroyed their Records and Documents. This is unthinkable, and the Fake Political Indictment against me must be immediately withdrawn. The system is Rigged & Corrupt, very much like the Presidential Election of 2020. We are a Nation in Decline!
This is plainly political speech and political speech is the most protected speech for obvious reasons. Indeed, the special prosecutor proves why such speech must enjoy such protection with his own motion. Smith’s attempts to cast Trump’s commentary and criticisms as “dangerous” and “threatening” falls flat to any reasonable interpretation. They are only “dangerous” or “threatening” because the special prosecutor does not like them. On their own, they are harmless criticisms of the system of which Jack Smith is a part. One would be hard pressed to think of anything more American than criticizing your government.
The best Smith can come up with that might approach an objective, genuine threat is this now (in)famous Truth from Trump:
@realDonaldTrump
IF YOU GO AFTER ME, I’M COMING AFTER YOU!
However, the Supreme Court test for when speech forfeits its protection because of an imminent danger requires two (2) prongs be met. In Brandenburg v. Ohio, the Supreme Court held that to limit speech, it must be inflammatory speech intending to advocate illegal action. In Brandenburg, a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that “it's possible that there might have to be some vengeance [sic] taken.” The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
The speech is “directed to inciting or producing imminent lawless action,” AND
The speech is “likely to incite or produce such action.”
Brandenburg’s speech did not rise to that level. Similarly, Smith knows that Trump’s claim that “if you come after me, I’m coming after you” fails to meet either of the Brandenburg prongs as well. Put plainly, American law does not permit the government to criminalize vague statements simply because someone subjectively interprets them to be threatening. It is too bad this principle no longer applies in “journalism.” That art was ruined in part when writers switched from an objective standard to interpreting speech to a subjective one. In any event, one need not ponder for long why the special prosecutor is bringing the motion given he understands Trump’s speech is both legal and protected—he either does not care or wants to erode the First Amendment (or both).
Sadly, most (if not all) on the Left both encouraged Smith and applauded his clearly unconstitutional conduct. Examples from Twitter abound and this one from paid Democrat influencer Harry Sisson is as good as any:
YES!!! Jack Smith has filed a “narrowly tailored” gag order against Donald Trump due to his inflammatory and disparaging comments. FINALLY!!! This should’ve been done a long time ago. Trump continues to damage potential jurors, witnesses, prosecutors and more.
We could also spend some time with the “prior restraint” aspects of Smith’s gag order request and gag order requests generally. In fact, the Supreme Court has uniformly rejected the notion that the the government can prohibit speech before it is uttered (i.e., prior restraint). In America, you are free to speak at your own peril. Anyone that has seen The Big Lebowski knows this. Unfortunately, there is no need to explore this problem with Smith’s motion because, as discussed above, his request is so plainly unconstitutional long before we reach this issue, which would then make his motion improper even if it were constitutionally valid at the outset (which it is not). And so the erosion of the culture and Country continues.
Sisson’s Tweet also points out another of the idiotic narratives Jack Smith uses to attempt to justify his unconstitutional request—tampering with juries. Ironically, the youngest among us cheer the erosion of their freedoms and ability to prosper in the future at shockingly high levels. Setting aside the fact that potential jurors can be asked during voir dire whether they had seen any of Trump’s Truths, there is no Free Speech exception for jury pools, witnesses, or prosecutors, at least not before Trump. Thus, the unconstitutionality of the request should be obvious to the average American even if the practical solution of voir dire were not available. If the constitution is followed, Trump may only be restricted from making threats to jurors, witnesses, or prosecutors (or judges) that satisfy the two (2) part Brandenburg test.
Which brings us to the point of the obvious—the constitution is not being followed with respect to these Trump indictments. If it were, the motion would not have been brought, but, if so, it would have been uniformly condemned by the public and the press. Judge Chutkan could and would sanction the special prosecutor for advancing a frivolous motion. None of this has happened or will happen. Because it will not, the right to Free Speech will be further restricted for all Americans.
While the reason is multifaceted, plainly is it because the Left that now controls the Democrat Party despises the constitution because it so severely restricts what government can do. That being understood, you would think even Democrats would have some concern about freedoms in the constitution that protect their individual rights. For whatever reason, they do not.
We used to understand that if we permitted the rights of others to be forfeited, our own would soon follow. Not sure why this obvious principle no longer acts as a check on government encroachment, but in the Trump era it does not. For now, let us hope we have a sufficient beachhead for the erosion to need to take place for quite a while longer. If this type of conduct by the government continues, it truly is only a matter of time. Until then, all we can do is to see the behavior for what it is.