Even if you don’t happen to be a lawyer, law professor or legal scholar, it isn’t hard to see a big problem with many of the published decisions made by judges who are hearing defense arguments and motions made by President Trump, in the continued “lawfare” cases being used by the DNC (not the United States) to persecute him financially, and block him politically.
There are a number of these judicial positions that are out in the press.
I’d like to focus on just one: the most recent case in Georgia involving free speech.
I’m not going to write up a “case review” that is readily available from several professional critics involving substantive and procedural law. What I want to point out here, rather, is that the government’s case, and the judge’s opinion stemming from it, rest on systematic logical fallacy.
The prosecutor’s entire argument, parroted by the judge, consists of mere assertion, without any evidence standards, because the government can’t prove the charges — they can only keep repeating their claims over and over. That is why they are obsessed with President Trump’s “intent,” and his “state of mind.” The prosecution’s entire case must rest on a fallacy of assertion.
What is a fallacy of assertion? In the spirit of Supreme Court Justice Antonin Scalia, who often stated that a dictionary was among his best judicial tools, here are a few definitions:
1. Ipse dixit (bare assertion fallacy) – “a claim that is presented as true without support, as self-evidently true, or as dogmatically true. This fallacy relies on the implied expertise of the speaker or on an unstated truism.”
2. Proof by assertion, “sometimes informally referred to as proof by repeated assertion, is an informal fallacy in which a proposition is repeatedly restated regardless of contradiction and refutation. The proposition can sometimes be repeated until any challenges or opposition cease, letting the proponent assert it as fact, and solely due to a lack of challengers (argumentum ad nauseam). In other cases, its repetition may be cited as evidence of its truth, in a variant of the appeal to authority or appeal to belief fallacies.”
3. Appeal to Ignorance. “This fallacy occurs when you argue that your conclusion must be true, because there is no evidence against it. This fallacy wrongly shifts the burden of proof away from the one making the claim.”
These are some of the most obvious logical errors that the government feels perfectly at ease with — and apparently so do the majority of the judges. But aren’t we always told that lawyers and judges use something called “legal reasoning?”
What is legal reasoning? Some judges prove they either cannot reason consistently within a finite set of legal rules, or that they will suspend logic as a form of rhetorical (self) deception.
As an example, consider the Georgia judge who just ruled on President Trump’s motion to dismiss that is centered on free speech law, and rights. It is a fascinating example of logical error. The judge stated that “The Defendants’ expressions and speech are alleged to have been made in furtherance of criminal activity and constitute false statements knowingly and willfully made in matters within a government agency’s jurisdiction which threaten to deceive and harm the government.”
This is a troubling use of judicial opinion that merely reinforces the prosecution’s case by repeating it, when it serves no purpose in judging the presence of free speech rights. Such rights are not quashed by allegations. One might mistake the judge for the prosecution’s advocate. The judge does admit that the DNC’s case is alleged, but he makes a fast syntactical switch from describing behavior as alleged, to judging that same alleged behavior as ipso facto criminal (“and constitute false statements knowingly”).
But it gets worse, as the judge slowly but thoroughly engages in what psychologist Stanley Milgram called the “Cyrano” effect, where an individual repeats the words from another person, without realizing what they are doing; some call it speech shadowing. A Cyranoid is someone who exhibits “identity incongruity,” because their words are coming from someone else.
Concerning the actual free speech doctrine that remains at issue in this case, it is fair to note that pre-trial motions to dismiss are difficult, largely due to judiciary plaintiff bias, and the motion was denied without prejudice, meaning it can be raised again. But the judges words are worth thinking about: “Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity.” This obviously invokes Holme’s “clear and present danger” test, if you buy that argument (I don’t), but what the judge mischaracterizes is “public concern” which was in reality, public duty and public right, which Trump was charged as their president to represent. The judge then uses circular reasoning to link concern with crime (which is based on a “report” from Nancy Pelosi).
Clearly in the Trump legal cases, most judges otherwise seem to have been given instructions, and may not recognize, or cannot admit, that they have abandoned judicial neutrality and reason. They still believe that they are actually judges in a court, because they cannot separate form from content, ritual from reality, or power from privilege.
As Canadian lawyer and Queens University law professor Bruce Parody said recently, “Now we have courts that openly advocate political views.” Indeed, the views are out in the open, but the influence and corruption are not. The worst part is that such judges don’t realize how far they have fallen from the law itself, and from their higher duty to uphold and promote public confidence in it.
Matthew G. Andersson is the author of the upcoming book Legally Blind. A corporation founder and former CEO, he has been featured in the Wall Street Journal, the Financial Times, the New York Times, the Washington Post, Time Magazine, the National Academy of Sciences, and the 2001 Pulitzer Prize report by the Chicago Tribune. He received the Silver Anvil Award from the Public Relations Society of America and has testified before the U.S. Senate. He attended the University of Chicago and the University of Texas at Austin, where he studied with White House national security adviser W.W. Rostow at the LBJ School of Public Affairs.
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