Thursday Reads: We Desperately Need a Better Media

Good Afternoon!!

Yesterday, the two most important newspapers in the U.S. published articles in which they “both-sided” the indictment of Donald Trump in the January 6 case. Reporters Michael Schmidt and Maggie Haberman at the New York Times and Devlin Barrett and Josh Dawsey at The Washington Post published articles that–at least in their headlines and the early paragraphs characterized Jack Smith’s case against Trump as a First Amendment case even though Smith explained very clearly in his statement announcing the indictments that it is a conspiracy case–based on lies that led to actions.

This is exactly what Republicans want Americans to believe–that Trump is being prosecuted for lying about the results of the 2020 election or even for his belief that the election was stolen from him. I’m not even going to quote from the two articles, but here are the links if you want to read them.

The New York Times: Trump Election Charges Set Up Clash of Lies Versus Free Speech.

The Washington Post: Heart of the Trump Jan. 6 indictment: What’s in Trump’s head.

David Kurtz spells this out clearly at Talking Points Memo: No, The Jan. 6 Indictment Of Trump Is Not A First Amendment Case.

As soon as I saw the headline, I knew this NYT story was going to be bad: “Trump Election Charges Set Up Clash of Lies Versus Free Speech.” No. No, it does not.

Both-sides coverage in politics is toxic; in legal coverage it’s so bad it becomes almost funny. But of course in typical legal matters we rarely get both-sides coverage. Instead, it skews heavily in favor of the narrative of law enforcement and prosecutors. But when a politician (let alone Trump) is the defendant, suddenly there’s a detached remove from the underlying facts. Conspiracy to overthrow the government or just political puffery in the spirit of stump speaking? Who can say, really? We’ll leave to you, dear reader, to decide.

Take the core graph of the story:

The indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.

Trust me, folks. This is not going to be a showdown over the limits of the First Amendment. How do I know? Well, one way is by reading the bottom half of the same NYT story, where legal experts shred the Trump defenses.

Kurtz recommends reading this thread on Twitter, which I read yesterday.

There’s a bit more on Twitter.

Kurtz notes (at TPM) that the Wall Street Journal did the same thing:

Another example of covering a criminal prosecution like it’s politics, courtesy of the WSJ: “Trump Is Being Prosecuted, but Justice Department Is on Trial, Too”

Oh boy, this sentence: “On the issue of whether it can persuade the public of the righteousness of its prosecution, the Justice Department has taken on a huge and politically polarizing target in an atmosphere already ripe with mistrust over its motivations.”

Not literally untrue. But notice the way this turns it all into a messaging contest, like a political campaign

This is from Lisa Needham at Aaron Rupar’s Public Notice: Trump’s J6-related indictment isn’t about his words. It’s about his deeds.

Special Counsel Jack Smith’s indictment distills the whole of the January 6 investigation into 45 pages. The story it tells is already familiar. There is the sheer number of lies told by Trump and his allies, such as that over 10,000 dead people voted in Georgia, that there was a suspicious late-night “vote dump” in Michigan, and that Pennsylvania issued 1.8 million absentee ballots but processed 2.5 million.

Smith makes clear that the issue here isn’t Trump’s lies as such, particularly right after the election. In fact, the indictment states that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” Nor is the issue the dozens of unsuccessful court cases Trump brought. Instead, the issue is that Trump worked with his co-conspirators to disenfranchise voters by interfering with the collection, counting, and certifying of votes.

Put another way, Trump isn’t being indicted for what he said. He’s being indicted for what he did.

The indictment tells the story of the fake elector scheme, where swing states, at the behest of Trump and his conspirators, put forth GOP electors in states won by Biden. It also details the pressure put on Mike Pence to throw out the election while Trump whipped his supporters into a frenzyuntil they attacked the Capitol.

The indictment reveals that even after the January 6 rioters were finally cleared from the Capitol, Trump and his co-conspirators were pounding the phones and sending emails late into the evening trying to reach elected officials who would agree to block certification. Around 7 pm on the 6th, one of Trump’s co-conspirators called five US senators and a House rep, all within 20 minutes, and left a voicemail for one senator asking them to “try to just slow it down” and saying that “the only strategy we can follow is to object to numerous states.”

Even as the joint session of Congress finally met at 11:35 pm on the 6th to certify the election, one of Trump’s co-conspirators emailed Mike Pence’s counsel, urging Pence to violate the law and adjourn for 10 days to “allow the legislatures to finish their investigations as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”

Read the rest at the link.

Marcy Wheeler has been ranting about this for a couple of days. Today, she wrote: The Elements of Offense in the January 6 Indictment. 

In the last day, Maggie and Mike and Devlin and Dawsey came out with twin pieces that purport to assess the legal strength of the indictmentagainst Trump, but instead simply say, “well, Trump believes his bullshit and so do we and so the charged conduct may be First Amendment protected.”

Neither of these articles even mention that 18 USC 371, conspiracy to defraud the US, is about lying to the US, even though one of the lawyers cited by WaPo attempted to explain that to them.

Here’s why all those claims that Trump knew he was lying are in the indictment: because his false claims were the means Trump used to carry out the conspiracy to defraud.

The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:

This indictment will be measured not by what Maggie and Mike and Devlin and Dawsey claim about legal statutes they haven’t bothered to explain.

It will be measured by whether the government presents evidence to prove the elements of offense for each charge beyond a reasonable doubt.

Read the details on the Emptywheel blog.

This afternoon, at 4:00, Trump will be arraigned for the third time. Kyle Cheney at Politico: Donald Trump returns to Washington. Just not the way he’d planned.

Two and a half years after a mob attacked the Capitol in his name, Donald Trump is making the trip down Pennsylvania Avenue he promised he’d make — but never did — on Jan. 6, 2021.

But this time, it’s to be arraigned in federal court.

Trump’s expected arrival on Thursday afternoon in Washington — to face charges that he sought to derail the transfer of power to Joe Biden — will bring him to the federal courthouse that sits just across the street from the Capitol his supporters defaced on Jan. 6. He’s expected to plead “not guilty” to four criminal charges leveled by special counsel Jack Smith.

Smith has accused Trump of orchestrating a breathtakingly broad campaign to unravel American democracy and cling to power despite decisively losing the 2020 election. In service of that goal, Smith says, Trump deputized six co-conspirators — including attorneys Rudy Giuliani, John Eastman, Sidney Powell and Kenneth Chesebro — to carry out a campaign of disinformation, cloaked in legal action, to convince state legislatures, Congress and then-Vice President Mike Pence to block Biden’s election.

Smith alleges that Trump used his unique platform as president to stoke false claims about election fraud and rile up supporters, harnessing their energy to pressure Republican elected officials to attempt to undo Biden’s victories in a handful of states. When that failed, Trump helped assemble slates of false presidential electors who would be used to stoke a conflict in the certification of Biden’s victory. Then, Trump and Eastman leaned on Pence — who would soon preside over Congress’ counting of electoral votes — to assert unprecedented authority to reject Biden’s electors or postpone the count altogether. The failure of that effort culminated in a burst of rage, with thousands of Trump’s faithful storming past police barricades and into the Capitol, while Trump — according to Smith — exploited the violence to continue salvaging his schemes.

As his supporters rioted, Trump wanted to join them, according to evidence amassed by the Jan. 6 select committee. Several witnesses described a heated altercation with Secret Service agents after they refused to take him to the Capitol because of security concerns. Instead, the Secret Service insisted he return to the White House, where he watched the attack unfold on television….

His arraignment on Thursday is scheduled for 4 p.m. Trump, represented by attorneys Todd Blanche and John Lauro, is expected to face Magistrate Judge Moxila Upadhyaya, who received the initial indictment from prosecutors on Tuesday. It will be Trump’s third arraignment on criminal charges since April but his first in Washington, D.C. There’s little of substance likely to occur beyond Trump’s initial plea in the case, but officials at the federal courthouse and the Capitol are bracing for crowds and potential security threats.