Tag Archives: January 6

New Article on Democracy and Political Assembly

academic freedom, First Amendment theory, , , , , ,

At this time, when so many democratic norms and institutions of government and civil society are being challenged, I hope readers of this blog will be interested in my new article, A Right of Peaceable Assembly, forthcoming in the Columbia Law Review.

The development of an independent Assembly Clause doctrine is essential. It may once have been possible to dismiss the consequences of ignoring the textual right of assembly. This is no longer true. Our neglect of the right has significant contemporary consequences for political protests, as the campus protests since October 7, 2023, have demonstrated.

The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not just be consistent with the text and original understanding of the Founders but also allow for a jurisprudence capable of distinguishing between protected and unprotected assemblies in relation to assembly’s distinct contribution to self-governance. The Piece recognizes that legal recognition of assembly as a textual right troubles the speech-conduct distinction that lies at the heart of contemporary First Amendment jurisprudence and upends existing determinations about the proper scope of constitutional protection for those who gather in public for political ends. The fact, however, is that the First Amendment explicitly protects a certain form of conduct (peaceable assembly), and it does so for good reasons (assemblies further liberal democracy in both instrumental and non-instrumental ways). This Piece, therefore, lays out a roadmap for an independent Assembly Clause doctrine capable of providing more appropriate constitutional protection, accounting for both assembly’s value and its social costs.

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“Democrats say they’ll avoid election challenges on Jan. 6”

election subversion risk

From the piece in The Hill:

Democrats have protested election results in every cycle when a Republican won the White House for at least two decades, so the lack of protests will be a real change.

These past objections have always been symbolic, designed to highlight restrictive election laws or alleged violations of the Electoral College process in specific states.

They have come after the Democratic presidential candidate had already conceded defeat, with no chance — and no intent — of overturning the election results.

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Trump and Cheseboro filings in the Georgia conspiracy case

chicanery, election law and constitutional law, Supreme Court,

As expected, President-elect Donald Trump has filed a motion in the Georgia Court of Appeals to dismiss the conspiracy prosecution against him in Georgia on the basis that “a sitting president is completely immune from indictment or any criminal process, state or federal.”  (The argument behind that claim isn’t only from the Trump v. United States SCOTUS case this past summer: the claim is well beyond what the Supreme Court decided.)

At least as interesting to me, in many ways, is the filing of Kenneth Cheseboro, in the Fulton County trial court, on the same day.  Cheseboro pled guilty in October 2023 to one conspiracy count of filing a false document, based on the filing of a fraudulent certificate of electoral votes with a Georgia federal court.  In September 2024, the Fulton County court declared that count unconstitutional with respect to John Eastman and Shawn Still as applied to these facts: the judge said that the state law couldn’t be used to prosecute false filings in a federal court.  That decision is now, I believe, up on appeal.  But in the meantime, Cheseboro has argued that a guilty plea to a charge that has been invalidated must itself be invalidated.

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Special Prosecutor Jack Smith seeks delay to assess implications of SCOTUS ruling on Trump Jan. 6 case

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Axios‘ article offers a summary of the implications of Special Counsel Jack Smith’s request for a two-week continuance to further analyze the Supreme Court’s immunity cases. Meanwhile, Politico provides a helpful analysis of the nuances of the Supreme Court’s immunity ruling and the difficulty of applying them.

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“Trump pledged to pardon Jan. 6 rioters. He faces pressure to name names.”

election subversion risk,

An excerpt from the WaPo piece about the law-and-order candidate:

Trump has steadily escalated his glorification of Jan. 6 defendants, often known in the MAGA movement as “J6ers,” describing them as hostages and patriots who have been mistreated. After his conviction in New York on 34 counts of falsifying business records, Trump proudly adopted the term “political prisoner” for himself.

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“2020’s ‘fake elector’ schemes will be harder to try in 2024 – but not impossible”

chicanery,

Derek Muller, for The Conversation, recounts some of the ways that both the law and enforcement have changed in the last four years.

Speaking of which, Wisconsin Public Radio reports that an attorney charged last week in the Wisconsin false-elector scheme has been temporarily suspended from a panel advising state judges on ethics.

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“Prosecutors Ask Appeals Court to Reject Trump’s Immunity Claims in Election Case”

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NYT:

Federal prosecutors asked [the U.S. Court of Appeals for the District of Columbia Circuit] on Saturday to reject former President Donald J. Trump’s claims that he is immune from criminal charges of plotting to overturn the 2020 election and said the indictment should remain in place even though it arose from actions he took while in the White House. . . . 

. . . In their 82-page filing to the appeals court, prosecutors focused on legal arguments and said that nothing in the Constitution or the country’s other founding documents supported the idea that a former president should not be subject to federal criminal law.

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“Exclusive: Recordings, emails show how Trump team flew fake elector ballots to DC in final push to overturn 2020 election”

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CNN:

Two days before the January 6 insurrection, the Trump campaign’s plan to use fake electors to block President-elect Joe Biden from taking office faced a potentially crippling hiccup: The fake elector certificates from two critical battleground states were stuck in the mail.

So, Trump campaign operatives scrambled to fly copies of the phony certificates from Michigan and Wisconsin to the nation’s capital, relying on a haphazard chain of couriers, as well as help from two Republicans in Congress, to try to get the documents to then-Vice President Mike Pence while he presided over the Electoral College certification.

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“Don’t blame democracy’s woes on the GOP or ‘tyranny of the minority’”

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Jennifer Rubin in the WaPo: 

Two of the year’s best books on politics present contrasting diagnoses for what ails American democracy.

Liz Cheney’s “Oath and Honor: A Memoir and a Warning” lowers the boom on the mendacious and cowardly Republicans and the now four-times-indicted former president Donald Trump, whom they enabled in nearly destroying our democratic system. “Tyranny of the Minority: Why American Democracy Reached the Breaking Point,” by Steven Levitsky and Daniel Ziblatt, cites structural protections for the minority that have been exploited to the point that self-government is threatened. Both books have a point, but neither puts the blame squarely where it should be. . . . 

Plainly, we need both structural change and public virtue to repair our democracy. But there is another element the analyses do not fully acknowledge: voters. We get the government we want and deserve.

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