Harvard Constitutional law professor Laurence Tribe and former federal prosecutor Dennis Aftergut came together to pen a Slate column explaining how a recent Supreme Court decision could make it a lot easier for prosecutors to use Donald Trump's tweets against him.
Among the many things Trump did ahead of Jan. 6 was send out a number of threats-by-tweet to Vice President Mike Pence as the violent mob made its way through the U.S. Capitol, they wrote in the article that was published on Tuesday.
“Mike Pence didn’t have the courage to … protect our Country," Trump said.
The legal eagles cited the recently released target letter from special counsel Jack Smith to Trump. They said possible charges could involve “conspir[ing] to injure, threaten, or intimidate a person … in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States or because of his or her having exercised such a right.”
They honed in on the words "threaten" and "intimidate," which they explained might be how that tweet is viewed.
"Under the 12th Amendment, the vice president has the right (and duty) to preside over the Joint Session of Congress to certify the vote electing the next president, and to ensure that the electoral votes are lawfully counted," the men wrote.
Pence told Trump he was voting to approve the election, despite the president's demands.
"Trump’s 2:24 pm tweet came 11 minutes after the mob breached the Capitol," the piece explained. "It also came, according to the House Jan. 6 committee, after White House Chief of Staff Mark Meadows had notified Trump of the violence. Trump plainly had in mind one or more of three aims."
The first goal was a last attempt to intimidate and threaten Pence using the mob, they suggested. Second, he sought to rile up the attackers so they would go after Pence.
"Third, to wreak revenge on Pence for not yielding should the first two aims fail," the piece said. "That would constitute an attempt to punish Pence for exercising his constitutional right — and by proxy that of American voters — another violation of the statute."
What the Supreme Court has to do with this dates back to its June 27 ruling in Counterman v. Colorado. The court decided, 7-2, that “a mental state of recklessness” for threatening violence is enough evidence to prove “true threats."
The justices explained that these words “lie outside the bounds of the First Amendment’s protection.” So, the word "recklessness" means that Trump, the one making the threats, “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
The former senior prosecutor for Robert Mueller, Andrew Weissmann, warned that the target letter indicates to him that Trump will be indicted for the election charges any day.
