In and About the City: Schoolhouse Rock, 2023 Reboot

If you watched Saturday morning television in the United States between 1973 and 1984, you probably remember the educational film shorts that aired between the cartoons, known as "Schoolhouse Rock." Those animated segments featuring cheeky commentary set to catchy music, focused on specific themes in the areas of mathematics, science, social studies and grammar. I was a little old for them but one segment that immediately comes to mind was called Conjunction Junction which you can watch here. Another was about how laws are made in Congress called I'm Just a Bill.

It's probably safe to say an entire generation of Americans remember the concepts they learned on Schoolhouse Rock better than the ones they learned at school.

Today, while we're falling behind the rest of the world when it comes to our knowledge of math, science and language skills, Americans are getting a full-blown education in social studies, at least in terms of American law and government, thanks the hottest show around, featuring the escapades of one former president and his multiple run-ins with the law.

Of course, like Saturday morning cartoons, the wall-to-wall media coverage of the travails of the exPOTUS is not to everyone's taste. To others such as myself, it's like a train wreck we can't turn our eyes from.

Lucky for us because it provides a valuable lesson reminding us of many things we forgot from school about the Constitution, American politics and jurisprudence.

A lot of Americans myself included, may only have spotty knowledge about our Constitution, but we sure think we know a lot about its First Amendment, especially the part guaranteeing our freedom of speech.

We all understand, or so I hope, that freedom of speech/expression is one of the linchpins of any democracy.

But we're learning, thanks in part to this version of Schoolhouse Rock, that like all freedoms, freedom of speech does not come without responsibilities. One cannot express a controversial opinion for example and expect it to be immune from consequences such as harsh judgement, public humiliation or even (in some cases) the loss of a job, just to name a few.

Nor is it absolute. The First Amendment itself does not enumerate limits to speech. That has been the role of the Supreme Court and over two centuries of precedent.

Here are just some of the categories of speech that the Court has deemed not protected by the First Amendment. Engaging in them can land you into serious trouble with the law:

Speech that violates intellectual property rights: You can't use someone else's speech or ideas and claim them as your own.
True threats: Statements that can reasonably be construed as an intent to inflict harm on the recipient.
Fighting Words: Statements that can reasonably be construed as intending to provoke a violent response.
Child pornography: No explanation necessary.
Incitement: Speech designed to provoke the commission of a crime.
Defamation and Libel: False statements designed to injure a person's reputation.

As you might imagine, there is a great deal of latitude here, making the judgement of whether speech rightly falls under any of these categories challenging, and quite difficult to prove in a court of law. That's why lawyers get paid the big bucks.

Years ago, working in a photography department in an art museum, our chief curator was sought out by lawyers representing a couple who was under suspicion of producing child pornography. They had taken nude photographs of their young children and were turned in to the DCFS by the lab that processed their film. The curator was asked if the photos had any "artistic merit" or if he thought they were exploitive and pornographic. He referenced works in our collection of a similar nature by established artists such as Sally Mann, but in the end, took the route of Supreme Court Justice Potter Stewart who had this to say about pornography: "I know it when I see it." Then as Justice Stewart did when writing for the majority in a 1964 obscenity case, our curator added (in not so many words): "and this ain't it."

Unfortunately, many of the limits to free speech can best be judged by the standard, "I know it when I see it", meaning there are few objective criteria to determine if certain forms of expression fall into the realm of non-protected speech.

Not surprising then, there is a rigorous burden of proof required to convict someone of crossing the line into unprotected speech meaning that courts when in doubt, generally err on the side of the literal interpretation of the First Amendment.

Take the most conspicuous example of all the actions that got the exPOTUS into hot water with the latest federal indictment which happened before our very eyes, the attack on our Capitol Building on January 6, 2021. That morning from the Ellipse, just south of the White House, the soon-to-be ex-president gave a speech instructing his supporters numbering in the thousands, to march up Pennsylvania Avenue to the Capitol to protest the certification of the new president, scheduled for later that afternoon.

In the speech he said this:

All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. And stolen by the fake news media. That's what they've done and what they're doing. We will never give up, we will never concede. It doesn't happen. You don't concede when there's theft involved.

One of the pieces of evidence of a "stolen election" he cited is that in the presidential election held in 2016, he received 66 million votes while in 2020 he received 75 million, more votes than any candidate for president had ever received before.

Unfortunately for him, his opponent in 2020 received 80+ million votes in the general election, and where it really counted, his opponent won the Electoral College by the same amount of votes the out-going president won against Hillary Clinton in 2016. If you remember, the exPOTUS declared that victory "a landslide", even though he lost the popular vote by three million votes.

But the exPOTUS begged to differ, He added:

And by the way, does anybody believe that Joe had 80 million votes? Does anybody believe that? He had 80 million computer votes. It's a disgrace... Take third-world countries. Their elections are more honest than what we've been going through in this country. It's a disgrace. It's a disgrace...

We will not let them silence your voices. We're not going to let it happen, I'm not going to let it happen.

He then went on to thank Rudy Giuliani and John Eastman, otherwise known as co-Conspirator One and co-Conspirator Two in his second federal indictment, for their stalwart efforts attempting to keep his presidency alive past its expiration date. It was Eastman who came up with the idea that Vice President Pence could reject the tally of electoral votes up on Capitol Hill that day (he really couldn't) and send the results back to the states where they would hopefully return a more favorable result for the president. He went on:

And he (Eastman) looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so.

Because if Mike Pence does the right thing, we win the election.... He has the absolute right to do it. We're supposed to protect our country, support our country, support our Constitution, and protect our constitution...

And Mike Pence is going to have to come through for us, and if he doesn't, that will be a, a sad day for our country because you're sworn to uphold our Constitution.

After rambling on for about an hour about how unfair losing the election was, he closed by saying this:

And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.

As we all know, Mike Pence didn't do "the right thing" by the exPOTUS that day, and the mob at the Capitol quickly got wind of it. Soon, shouts of "hang Mike Pence" were heard by throngs of Trump supporters, some of whom had the foresight to bring makeshift gallows, should the need for one arise. The mob would eventually breach security and break into and attack the most potent symbol of our democracy. To make matters worse, the soon-to-be ex-president did nothing to stop the attack. Instead, he threw gasoline on the fire by tweeting the following, AFTER he learned that the mob was calling for Mike Pence's head:

Mike Pence didn't have the courage to do what should have been done.

Fortunately, the Vice President, the Speaker of the House, and the members of Congress who were in the crosshairs of the mob, all escaped the ordeal unharmed, largely thanks to the quick thinking and heroism of the Capitol Police.

Unfortunately, five lives were lost that day including members of the Capitol Police. About 150 officers including metropolitan police and those from other agencies were injured. At least four officers took their lives in the months following the attack.

Whether you call it an insurrection, an act of domestic terrorism, a riot, or merely a spirited protest that got out of hand, it's impossible to make the case that serious crimes were not committed that day by supporters of the president. And one would have to be delusional not to place at least some of the responsibility for the violence and loss of life on the words and actions of one Donald J. Trump on January 6, 2021, and the weeks leading up to it.

So, it would seem reasonable by the definition of the term mentioned above, that the exPOTUS should be charged with incitement, as without his election lies, his calls to interfere with the process of confirming his successor, and especially his very public pressure on and ultimate denouncement of the Vice President, none of this would have happened. That fact was confirmed by many of the rioters who were convicted of and are now doing time for their crimes that day, who insisted they were there to do the ex-president's bidding.

And if you believe as I do that the attack on the Capitol was indeed an insurrection (defined as violence against lawful civil authority with the intent to cause its overthrow) AND believe that Trump incited it, then he could be charged with an even more serious crime, sedition, which is defined as "the crime of creating a revolt, disturbance, or violence against lawful civil authority with the intent to cause its overthrow."

In other words, inciting an insurrection.

To my eyes, I know an insurrection when I see one, and that's exactly what this was.

And I know incitement when I see it and sure enough, this has all the hallmarks of it.

The problem is, you may not see it that way. You might reasonably point out that in his speech, the president did not tell the crowd to break into the Capitol. You might also reasonably point out that at one point in his speech he told his supporters to demonstrate peacefully, or that he was not present at the Capitol at the time of the attack, (even though it appears that he intended to be). More importantly, any one of the twelve jurors picked to decide his fate may legitimately see it that way too, which would result in a hung jury if they cannot be persuaded otherwise by the other 11jurors.

In the weeks since Special Prosecutor Jack Smith released his latest indictment, the exPOTUS and his supporters have gone all out to use the First Amendment as their primary defense, saying he is being accused of very serious crimes when all he was doing was exercising his freedom of speech.

Do they have a point?

No they don't, because the exPOTUS is not being charged either with sedition or inciting the attack on the Capitol.

Federal prosecutors don't enjoy having a high conviction rate because they choose to prosecute cases that stand a good chance of losing.

Even though he could have charged the exPOTUS with incitement of the mob that attacked the Capitol, Jack Smith, one of the best in the business, steps ahead of the ex-president and his defenders, took a pass on that one.

Instead, in the introduction to his indictment, Smith points out that the president like every American is guaranteed by the First Amendment, freedom of speech, including speaking in public about the election, and even to make false claims about it. The document goes on to point out the numerous recourses available to candidates to contest a disputed election including recounts, audits and legal challenges, all of which the exPOTUS took full advantage of. Once all legal means proved unsuccessful, the indictment alleges the exPOTUS and his co-conspirators, attempted other measures to challenge the election, outside of the law.

In the 45-page August 1st indictment which you can find here, the ex-president was charged with four counts of conspiracy to overturn the legitimate results of an American election, and the obstruction official government proceedings, all in violation of statutes listed in the main criminal code of the federal government of United States, Title 18.

The four counts and the statutes they violate are as follows:

Conspiracy to Defraud the United States (18 U.S.Code §371)
Conspiracy to Obstruct an Official Proceeding. (18 U.S.Code §1512(k))
Obstruction of and Attempt to Obstruct an Official Proceeding. (18 U.S.Code §§1512(c)(2),2)
Conspiracy Against Rights (18 U.S.Code §241)

In the legal sense, conspiracy is defined as two or more people planning a crime, then taking steps to implement that plan. The crime itself does not have to be committed.

Count one is referring to the electoral process as established by the Constitution. The defendant and his co-conspirators are accused of conspiring to overturn that function through "dishonesty, fraud and deceit" by falsely insisting the election was "stolen".

Remember, merely talking about committing a crime does not make a conspiracy.

The means by which they carried out their fraudulent enterprise to subvert the electoral process include:

Pressuring government officials in states where the defendant lost by a relatively small amount, to replace the electors who would cast their votes for the legitimate winner of that state, Joe Biden, to electors who would cast their votes for the defendant.
Pressuring state government officials through the supposed authority of the Justice Department (who was not in on the plan), to conduct sham investigations into their elections.
Attempting to enlist the aid of the Vice President to "fraudulently alter the election results."

Counts Two and Three refer to the obstruction of the January 6, 2021 joint session of Congress to confirm the election of the next president, both the conspiracy and the actual act.

The indictment concludes with Count Four. Here are the allegations in their entirety:

From on or about November 14, 2020 through on or about January 7, 2021, in the District of Columbia and elsewhere the Defendant,
DONALD J. TRUMP
did knowingly combine, conspire, confederate, and agree with co-conspirators known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States -that is, the right to vote, and to have one's vote counted.
(In violation of Title 18, United States Code, Section 241).

Despite being a well put-together indictment, it is still far from an iron-clad, slam-dunk case against the exPOTUS.

As we've all read and heard ad nauseam over the last few months, the exPOTUS is the only president ever to have been indicted. Clearly, we are in uncharted waters here. Add to that the former president is currently a candidate for president who if nominated by his party, will be running against the current president whose Justice Department will be prosecuting him.

I pointed out in this post why I believe the accusations of the current president "weaponizing" his Justice Department against a political opponent are meritless. But the prosecution will have to convince that to all twelve jurors at the trial.

Fraud may be a difficult issue to prove. If deep-down in the recesses of his mind the defendant truly believed that the outcome of the election was "rigged" against him, could he really have been committing fraud which is defined as "wrongful or criminal deception intended to result in financial or personal gain"?

In other words, if he truly believed the election was stolen from him, he wasn't practicing criminal deception, as state of mind is a key factor in determining guilt or innocence.

Nevertheless, rigged or not, he still participated in illegal means to overturn an election, that much is certain. In the indictment there is a plethora of evidence to support the idea that the exPOTUS knew he lost the election fair and square, but on this too the prosecution will have to convince all twelve jurors.

Then there is the idea of "Conspiracy Against Rights."

Here is the opening of Section 241 of title 18 of the United States Code which according to the prosecution, justifies the charge of Conspiracy Against Rights:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same... they shall be fined under this title or imprisoned not more than ten years, or both.

This statute was written after the Civil War and its chief purpose was to prevent the intimidation of black people attempting to vote. It was used extensively during the modern Civil Rights movement of the twentieth century for the same purpose.

Once again it will be up to the prosecution to prove to all twelve members of the jury, that the statute applies to this particular case.

Regardless of one's feelings about the exPOTUS, our system of justice demands that he is innocent until proven guilty in a court of law. Like everyone, he is entitled to his day in court and to a competent defense.

Also like everyone, if found guilty, he should be held accountable for his actions, regardless of his past job and his aspirations for future employment.

In this particular case, there is very little in doubt about his actions and those of his co-conspirators. What is in doubt and what the outcome of a potential trial will determine, is the legality of those actions.

I'm obviously not a lawyer so my opinions on legal matters are of little worth. But as the facts of this case are not much in question, I can say with a great deal of certainly that those actions, illegal or not, were wrong. Very wrong. They run counter to the very idea and spirit of a Democratic-Republic, the system of government we have kept alive in this nation for nearly a quarter of a millennium, the system of government every president is responsible for upholding.

I used to think the term "existential threat to democracy" when applied to this exPOTUS was hyperbolic, but I no longer do.

It's interesting to hear people who clearly support his bid for another term as president tear apart the indictment, which I suspect many of them have not read, saying that what the exPOTUS did may have been wrong, but the prosecution cannot prove that the actions were illegal.

That perplexes me because if they admit what he did was wrong, why would they still support him?

For instance:

OK it was wrong for him to watch on TV as his supporters broke into the Capitol, cheering them on as they used flag poles as weapons against the Capitol Police and others, causing grievous injury to many, threatening the lives of his Vice President and other elected officials, and doing absolutely NOTHING to stop it.