Trump Prepares For Exile-- But Is He Headed For Elba Or St. Helena?

A despised and weakened Trump-- with the lowest approval rating for any president since there were approval ratings-- and a pariah in NYC and in DC-- is slinking off to the "Southern White House," hopeful that Florida will never extradite him to New York. He leaves DC, wrote Phil Rucker, Josh Dawsey and Ashley Parker "politically wounded, silenced on social media and essentially unwelcome in his lifelong hometown of New York. By migrating instead to Palm Beach, Florida, Trump plans to inhabit an alternate reality of adoration and affirmation. The defeated president will take up residence at his gilded Mar-a-Lago Club, where dues-paying members applaud him whenever he eats meals or mingles on the deck. He is sure to take in the same celebratory fervor whenever he plays golf at one of the two Trump-branded courses nearby. In Florida-- one of only two top battleground states Trump won last November-- Trump will be living in a veritable MAGA oasis, to use the acronym for his 'Make American Great Again' campaign slogan. South Florida has fast become a hub of right-wing power brokers and media characters, and some of Trump’s adult children are making plans to move to the area." There's even talk of Ivanka running against Rubio next year.

There's talk of a presidential library or museum there are "even as Trump broods privately over his second impeachment last week and the election he continues to falsely insist he won, his aides are at work to establish a Trump fiefdom in the Sunshine State aimed at maintaining his influence over Republican politics... and about the birth of a family [political] dynasty."

Also writing for the Washington Post today, Rosalind Helderman, Spencer Hsu and Rachel Weiner dealt with how apprehended rioters and insurrectionists are blaming Trump for their predicaments. Some say they were basically little more than just patriotic tourists doing what their president instructed them to do: "We were invited here! We were invited by the president of the United States!"

Helderman, Hsu and Weiner reported that "The accounts of people who said they were inspired by the president to take part in the melee inside the Capitol vividly show the impact of Trump’s months-long attack on the integrity of the 2020 election and his exhortations to supporters to 'fight' the results. Some have said they felt called to Washington by Trump and his false message that the election had been stolen, as well as by his efforts to pressure Congress and Vice President Pence to overturn the result. But others drew an even more direct link-- telling the FBI or news organizations that they headed to the Capitol on what they believed were direct orders from the president issued at a rally that day."

Is it a defense for the criminal insurrectionists? Maybe they should give all the accused IQ tests. Anyone who scores under 70-- likely more than half in this sample-- could get off lightly by pleading debilitating idiocy. And is it a legal liability for the biggest criminal insurrectionist of all?

While legal experts are split on whether Trump could face criminal liability for his role in the events of Jan. 6, testimony from rioters who felt directed to take part in illegal acts by his speech could inform a decision by prosecutors about whether to attempt to build a case. Short of that, the testimony from rioters is likely to be cited in Trump’s upcoming impeachment trial in the Senate and could become evidence should people injured in the Capitol attack seek to file lawsuits against Trump.

Disturbing details of what happened inside the building have already emerged in court documents-- including one witness who told the FBI that the rioters intended to kill any member of Congress they encountered. Officials have said they are still investigating whether the siege was planned and whether those involved intended to take hostages or otherwise harm elected leaders.

Some accused of taking part in the mayhem may be invoking the president as a way to duck blame for their own actions. Already, several rioters charged with crimes have said they hope Trump will pardon them before he leaves office since they believed they were following his instructions.

Jenna Ryan, a real estate agent from Dallas who has been charged with illegally entering the building, appeared on local television Friday to beg Trump for clemency.

“I thought I was following my president,” she said. “I thought I was following what we were called to do. . . He asked us to fly there. He asked us to be there. So I was doing what he asked us to do.”

...On multiple occasions, he urged his supporters to come to Washington and to apply public pressure on Congress to change the election results.

“Big protest in D.C. on January 6th. Be there, will be wild!” he tweeted on Dec. 19.

“The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!” he wrote on New Year’s Day.

On the morning of Jan. 6, as Congress prepared to convene in the Capitol, Trump’s son Donald Trump Jr. delivered a fiery speech to the thousands of Trump supporters assembled on the Ellipse. Trump’s personal attorney, Rudolph W. Giuliani, called for “trial by combat.”

In his address to the crowd, Trump did not overtly call for them to try to enter the building or commit violence. But he emphasized the need for strength and repeatedly called for the crowd to fight on his behalf.

“Our country has had enough,” he said. “We will not take it anymore, and that’s what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal.”

He falsely claimed that “all Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people.” And he said that if Pence allowed the vote to move forward, Biden would become president.

“We’re just not going to let that happen,” he said.

As the crowd periodically chanted, “Fight for Trump,” he continued, “So we are going to walk down Pennsylvania Avenue-- I love Pennsylvania Avenue-- and we are going to the Capitol.”

Trump, in fact, returned to the White House. But thousands of his supporters turned and began marching toward the Capitol, where lawmakers were just starting to meet in joint session.

...Across the Capitol complex, thousands of people wearing Trump gear, carrying banners bearing his name and wearing hats with his slogan, “Make America Great Again,” clashed with police, broke windows and rampaged through congressional offices. Some in the crowd chanted, “Hang Mike Pence.”

Would anyone be entertaining this spurious defense if they actually had hung Pence and killed his wife and daughter? Trump made me do it? I'm guessing they would be negotiating to avoid death sentences and begging for life in prison. Helderman, Hsu and Weiner wrote that in court filings charging Nicholas Ochs, the founder of the Hawaii chapter of the Proud Boys, with unlawful entry into a restricted building, an FBI agent wrote that the group "has been vocal in calling for action over the false claims that President Trump lost the election due to widespread voter fraud. Some members have advocated for violent action to achieve these end." Another Proud Boy extremist's court documents claim because Trump told them to "Stand back and stand by!" they should be exonerated.

While the president’s claims have been cited various times in court documents, legal experts said prosecutors may be wary of attempting to charge Trump with criminal incitement. Such a crime can be difficult to prove because it requires showing that speech that would normally be protected under the Constitution has crossed a line into criminal activity.

...In a landmark 1969 case, the Supreme Court held that speech could only be criminal if it could be proved to be “directed to inciting or producing imminent lawless action.” In that case, the court overturned the conviction of a Ku Klux Klan member who delivered a racist and anti-Semitic speech to Klan members gathered in a field in Ohio, finding that the speech’s vague call for “revengeance” and an announcement of a future march on Washington were not calls for immediate criminal behavior.

Eugene Volokh, a constitutional law professor at UCLA School of Law, said the precedent has generally protected rousing or fiery political speech that does not specifically call for violence-- even if some people who hear it might be inspired to break the law.

In the case of Trump’s speech, Volokh said he did not believe it would be possible to prove beyond a reasonable doubt that Trump intended to direct the crowd to commit illegal acts.

He noted that Trump did not ask people to break into the Capitol or to assault police officers but instead called for them to “march” to the Capitol-- an act of protest protected in the Constitution. At one point, Trump specifically said the people should march “peacefully.”

“One reason why we have a high bar for incitement is because it applies to everyone. It doesn’t just apply to the president. It applies to organizers, labor activists, private citizens. It’s important to keep that bar high,” he said.

But Leonard M. Niehoff, a First Amendment expert at the University of Michigan Law School, said the courts have held that potentially inciting speech must be examined in context.

In this case, Trump called for his supporters not just to march to the Capitol but to “stop the steal,” to act with strength and to “fight like hell.” He said the only way protesters would have been able to stop the electoral college process was through violence.

“The clear instruction was you are going to the Capitol to stop the steal. You are going there to show strength. You are going there to take the country back and not to let this happen,” Niehoff said. “Is it conceivable that you would listen to that speech and say to yourself, ‘All the president wants us to do is go to the Capitol and then go home?’ I just don’t think so.”

The two scholars agreed, however, the public should examine whether the president’s words and actions were immoral, not just whether they broke the law.

Volokh said Trump’s actions may amount more to a “dereliction of duty” than a crime-- a failure to protect the public that might be better addressed through the impeachment process underway in Congress.

Niehoff added, “Whether he behaved properly, as an ethical matter, that’s not something the law will answer.”

The court of public opinion has though. Most people blame him for the violence at the Capitol and his approval is in the toilet. A majority of those polled say Congress should disqualify him from ever holding public office again. No one is polling whether he should be executed or imprisoned.