The latest charges brought against former President Donald Trump by the Democrats will be parsed and dissected by lawyers and legal scholars for years to come – so let us get our
concerns in at the beginning of the debate.
We see two crucial elements of President Trump’s potential defense that aren’t getting much attention: The first is Donald Trump’s right to petition the government for the redress of grievances, i.e., the stolen 2020 election, and two, the role of Congress as the finder of fact in disputes over slates of delegates.
The Constitution’s First Amendment says:
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.
Historically, the right to petition the government for redress of grievances has been a cornerstone of First Amendment jurisprudence and advocacy – especially by those now associated with the Left, such as the American Civil Liberties Union and the First Amendment Clinic at Duke Law School.
In an Amici Curiae in support of BLM activist Deray Mckesson's Petition for Writ Of Certiorari to the United States Court of Appeals for the Fifth Circuit the Amici, including attorneys H. Jefferson Powell, Nicole J. Ligon, Ian Kalish, Walter Dellinger, and Meaghan VerGow argued that:
In recognition of its historical and social importance, this Court has consistently found the right to “petition the Government for a redress of grievances” to be central to the functioning of our democratic society.
Even when a civil demonstration falls partly outside the bounds of the First Amendment, “the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916–17 (1982).
Clearly, under the First Amendment then-President Donald Trump had an absolute right to petition Congress for the redress of his claims the 2020 presidential election was stolen. *
And as Jason Goldman wrote for the Obama White House, “while it guarantees the right to petition, the First Amendment doesn’t explain how to petition or what the government owes in response. Over the years, many people have petitioned the government by sending written letters to the White House and Congress, asking for assistance and expressing grievances on a variety of issues. For example, in 1897, Native Hawaiians who petitioned Congress were successful in temporarily blocking the annexation of the Hawaiian Islands. And in 1874, suffragette Susan B. Anthony petitioned Congress to remit a fine imposed on her after she was arrested for casting a vote in the 1872 election in Rochester, New York.
In those and any other cases the government – in this case Congress – may act to satisfy the petitions, may directly reject the petitioners’ request, or as happens in most cases, simply ignore the petition, because there’s nothing in the Constitution that requires the government to act, the First Amendment merely grants the right to petition without retribution.
And that brings us to the second crucial point – in the matter of what Electoral College votes are legitimate and should be counted, Congress is expressly charged with the responsibility of acting as the finder of fact, and there is no process for appeal of its decision.
Indeed, Congress was acting on the petition of Donald Trump and the alternate electors for redress of their grievance when Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnel decided the security situation on January 6 required Congress to suspend proceedings.
When Congress returned it acted upon the petitions of Mr. Trump and those who alleged they had been defrauded of their right to cast an Electoral College ballot by voting to reject their contest and count the ballots of their opponents.
Equally, Congress could have simply ignored the petition, should the petition have failed to garner the requisite number of Members for a challenge.
And quite clearly, the Executive Branch may not, ex post facto, encroach on the prerogatives of Congress to specify the form or subject matter of petitions presented to it by making a petition for recognition of one’s claim into a crime.
This was tried once before when World War I era anti-war petitioners requesting repeal of the espionage and sedition acts and military measures were jailed by Democrat President Woodrow Wilson.
The persecution and prosecution of former President Donald Trump is starting to look a lot like the persecution and prosecution of another iconoclastic presidential candidate – Socialist Eugene V. Debs, who was jailed for criticizing America’s entry into World War I and ran for president from prison, garnering about 1 million votes.
It got so bad under Democrat President Woodrow Wilson that twenty-seven South Dakota farmers were convicted for sending a petition to the government objecting to the draft and calling the conflict a “capitalist war.”
Justice Oliver Wendall Holmes, who wrote the opinion upholding the jailing of Debs, later regretted the precedent set, and expressed himself to be unhappy that the federal government had chosen to prosecute Debs and that he had been chosen to write the opinion.
Right now, under House Rule XII, subsection 3 the only petition which may not be received by the House is one that is in the judgement of the Speaker “obscene or insulting.” We should not return to the days when a Democrat-run Executive Branch, in the persons of the President and Attorney General, can decide what speech and petitions may be directed to Congress and retaliate by jailing those who speak in opposition to the government’s policies or legitimacy.
*The absolute right may have some limitations in the sense that slanderous or libelous statements made in a petition may be actionable by the aggrieved party. Supreme Court decisions subsequent to Debs have recognized but severely limited the government’s powers over speech even in time of war.
Special Counsel Jack Smith
Obstruction of Official Proceeding
Joe Biden administration
January 6 prisoners
Washington DC juries
District Court Judge Tanya Chutkan
Change of venue motion
Democrat election denying video
right to petition the government for the redress of grievances
Role of Congress as the finder of fact in disputes over slates of delegates