Legal Site: We Changed Our Minds, “Indict Trump”

From the legal analysis site LawFare:

Until Tuesday, we had publicly stated that the Department of Justice had insufficient evidence to indict former President Trump for his conduct on Jan. 6. Our conclusion, which we each came to independently, was largely grounded in First Amendment concerns about criminalizing purely political speech. But Tuesday’s explosive testimony from Cassidy Hutchinson, a former aide to Trump’s chief of staff, Mark Meadows, changed our minds.

In other words, Trump’s order to “take the fucking mags away,” whether or not the Secret Service obeyed it, was not constitutionally protected political speech but, rather, an overt act, sandwiched between sentences reflecting awareness and intent, that would have made the threat of lawflessness far more “imminent” (in the language of Brandenburg). Trump’s actions transformed his words “Fight like hell” from a political metaphor to a consciously literal and imminent danger.

Read the full article. There’s a lot more to their argument, much of which is necessarily in complex legal terms.

.@jedshug and I explain why Cassidy Hutchinson’s Tuesday testimony changed our minds on indicting Donald Trump. For @lawfareblog https://t.co/seSNMaI3g6 pic.twitter.com/ynJBQ269hZ

— Alan Rozenshtein (@ARozenshtein) July 1, 2022

“Merrick Garland has no good options, only bad ones. But the bad options are not all equally bad… letting Trump off the hook poses a greater threat to American democracy than does prosecuting him.” https://t.co/tF4CdZzCWO

— Sean Casten (@SeanCasten) July 1, 2022