George Rebane

With the upcoming Trump trials it’s time to take a more focused look at how his indictments for exercising ‘unconstitutional speech’ are holding up in the land of the First Amendment and free speech.  As a starting point I’ll take a leftwing reader’s comment in the most recent Sandbox.

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George

Do you have the right to free speech to spread information you know is a lie or not verifiable when it is your official duty to deal with the truth? That's what Trump is accused of. Also can you note your sources that cite that Pence has the Constitutional right to pause the election certification and if so for how long. Also does that mean that Trump would remain President until the whole matter is sorted out? Also how would the other members of the Executive branch have to deal with it, for example cabinet members and Presidential appointments. Has this ever happened before?

Links supporting your contention would be helpful.

Posted by: Paul Emery | 13 August 2023 at 06:44 PM

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First Amendment of the US Constitution – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (more here and here)

As can be seen from his subsequent Sandbox exchange with other readers, Mr Emery continues to have a problem with staying on the topic he raises in the above comment.

Do you have the right to free speech to spread information you know is a lie or not verifiable when it is your official duty to deal with the truth? That's what Trump is accused of.   The short answer is YES since the Constitution is silent on such a question.  And we must remember that politicians have the same rights to exercise free speech as those enjoyed by non-politicians, especially when both are claiming to express and communicate their beliefs.

Also can you note your sources that cite that Pence has the Constitutional right to pause the election certification and if so for how long.

This question exhibits a misunderstanding of our Constitution which is not intended to be a document of permissions granted by the state.  If the Constitution is silent on some matter or issue, then it cannot be appealed to resolve the matter by any third party inserting their gratuitous interpretation (see Pence's letter below).  In the electoral vote certification matter, the Constitution is only clear in requiring the Senate, chaired by the VP, to examine and count the submitted electoral votes, and certify them if they found to be legitimate.  It prescribes no time frame nor process that the VP must undertake to become convinced one way or another about the legitimacy of what he has at hand.  Therefore, he is free to follow his own counsel on how to proceed toward a certified electoral vote.

Also does that mean that Trump would remain President until the whole matter is sorted out?  Also how would the other members of the Executive branch have to deal with it, for example cabinet members and Presidential appointments. Has this ever happened before?

Again, since the Constitution is silent on such a contingency, one can presume the sitting government remains in place and functional until a new in legally accepted – in this case, until the presiding VP makes up his mind on how to resolve the matter.  Here we see that Pence acted totally within his several Constitutional prerogatives in accepting the electoral vote as it was presented.  VP Pence stated in a letter (here and here) that he does not have the unilateral authority to reject the electoral votes presented to him.  That is an erroneous interpretation of the First Amendment.

This situation regarding the electoral college and the transfer of power has not happened before in our Republic’s history.  Here is the complete copy of Trump’s fourth indictment issued by a Georgia grand jury.