Analysis of Trump’s pretrial brief 2021-02-04

Let’s break down the arguument his lawyers make:

The President is a now a private citizen and so not subject to Congress’s jurisdiction.

  1. Suppose a policeman kills someone at a traffic stop, and he is put on administrative leave while the DA investigates the case. Suppose he then resigns from the police force. Does he get tried as a cop, or as a private citizen?

He may still receive his policeman’s pension as a state employee.

  1. What about a soldier who is tried under the Military Code — court martialed. If he leaves the military does that free him from being court martialed?

The President was exercising his freedom of speech rights from Election Day (November 4, 2020) to the Election Certification of Electoral Colletge (January 6, 2021)

Again the play here is what is a President’s responsibility. Is being President a regular job, so you can go off do just about anything you want on your own time? Or is it a 24/7 responsibility? Are you accountable for the words you utter at a campaign rally — not just as a private citizen running for office — but as the President, Commander-in-Chief, Leader of the Free World.

I argue that he must be accountable.

And even more — the words directly affected the Electoral process, so directly affected his job performance. When he spoke on Election Night, he was speaking as the President, not just a candidate running for office. And when he spoke on January Sixth, again a reasonable man would conclude that he was speaking as the the President, not just a private citizen running for office “Donald J Trump for President”.

This is not about Free Speech. It is about his job performance.

At the very least one can argue that he is incompetent. But I think a reasonable man would conclude that his performance was calculated to  incite. There’s a twist in this because Garcetti v. Ceballos, a 2006 U.S. Supreme Court decision, found that government employees have less free speech when they’re speaking in the course of their duties.

And that is why he is on trial.

My View

A guilty verdict — Barred from running again. Not to receive his pension, and the other privileges of Presidential retirement.  However, I am running for 2022 so my opinions are just that — opinions.

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