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Huh?

This is John Batchett, a conversation with my colleague Richard Epstein of the Hoover Institution teaches law at NYU in the University of Chicago.

About four suggested defenses for the allegations made by the Department of Justice Special Counsel against former President Trump.

In discussing the first possible defense, freedom of speech, the first amendment, Richard has very careful analysis of what Mr. Trump said

to the people who then proceeded to the Capitol in a riotous fashion, entering the Capitol, called rioters by Mr. Smith's Special Counsel allegations.

Is Richard on what Mr. Trump said and what kind of trouble it may cause?

That's the January 6th though.

What he did said is let's go out there and show them, but what he also said is we wanted to make a peaceful demonstration outside the Capitol building in order to influence people inside.

So he did not say storm the gates break into the building or anything of that sort, and so that is probably going to be regarded as a protected speech.

But what happens is that's the weakest of accounts if you'll note that what Smith did is he called them rioters.

He did not call them insurrectionists.

And those are words which are fake with meaning because if it's an insurrection, it could implicate the various provisions of the equal protection clause in the bill of rights.

I mean, you don't want to get not the bill by some reconstruction amendments.

You don't want to get them.

This is not the January 6th hearing where you start talking about everybody.

It is probably not criminal to sit in front of a television and refuse to say anything to call the mobsters off or the gangsters off or the rioters off or whatever you wish to call them.

So I think on that he hasn't, but this case is not going to turn on the default cases.

It's not going to fall turn on January 6th.

It's going to turn on the pressure on the one hand on these various people and the fake slate of electors on the other.

And I think on those two areas Trump is in deep trouble.

We turn to the second.

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