Trump's Troubles

On August 1, Special Counsel Jack Smith announced a new indictment against former President Donald Trump, saying the Jan. 6, 2021, attack on the Capitol was "fueled by lies… lies by the defendant targeted at obstructing a bedrock function of the U.S. government: the nation's process of collecting, counting and certifying the results of the presidential election...The attack on our nation's Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy."

Notably, Smith did not charge incitement or conspiracy to incitement. Given that President Trump had urged his followers to march and protest “peacefully,” and given his call for national guard troops to protect both the capitol and the protestors, it would be hard, if not impossible to prove criminal intent. Thus, Smith instead charged Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. In essence, the indictment alleges Trump disseminated false allegations of widespread fraud in the 2020 election "to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election," ultimately culminating in the January 6 attack.

There are some big problems with this indictment. The first argument against the criminal charges is what I would call the “what’s good for the goose is good for the gander” defense. In other words, Democrats have done the same thing as Trump; after all, Democrats have falsely challenged the Presidential certification of Republican Presidents in 2001, 2005 and 2017. Hilary Clinton falsely claimed that the 2016 election was stolen from her, and that Trump was an illegitimate President; and yes, riots did immediately follow her statements in Democrat run cities and even outside the White House. Should Hilary be responsible for the action of others in those riots? In addition, Democratic lies certainly continued after Trump’s inauguration – Trump colluded with the Russians and was a “Putin stooge,” etc. In addition, House Speaker Nancy Pelosi continued to falsely claim that Trump was an “illegitimate President” for the entire four years of his Presidency. Her “knowingly false” claims certainly helped “create an intense national atmosphere of mistrust and anger and eroded public faith in the administration of the election.” Why weren’t Clinton and Pelosi prosecuted?

The second and bigger problem is that false statements are protected under the First Amendment. In 2012 the Supreme Court decided in the United States v. Alvarez decision that it is unconstitutional to criminalize lies. I note there was a bipartisan type of consensus in what was a 6 to 3 decision. Justice Kennedy wrote for the majority and was joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justices Stephen Breyer and Elena Kagan agreed with the majority, but on entirely different grounds. In fact, this Trump indictment actually recognizes that decision and states that politicians are protected in making false statements in elections, but it then proceeds to charge Trump anyway for claiming that the 2020 election was stolen. Trump’s attorneys, therefore, have a very strong argument that even if Trump was/is lying, he has a constitutionally protected right to lie. By the way, that argument goes for Joe Biden too. He has repeatedly lied that he never spoke to his son about his business. Joe’s lies have certainly helped “create an intense national atmosphere of mistrust, anger and eroded public faith in the administration of justice.

Then there is the age-old question Pilate raised with Jesus: “What is truth?” When is a lie really a lie? I think it should be obvious that if Trump actually did and still continues to believe that he did not lose the election, it follows that he is not lying, and the indictment should fall apart. To get around this, Prosecutor Smith is alleging that Trump did not actually believe he won. Really? The former President has been very consistent in publicly claiming he was the actual winner, so how can Smith prove what was and is in the mind of Donald Trump? He’s not a mind-reader, so really can’t know; therefore, he is using the theory that Trump knew he lost, because so many experts and some advisers told him that he that he was wrong about the election and wrong about the law. Smith simply declares that Trump “knew that they were false” because Trump was “notified repeatedly that his claims were untrue.” What it boils down to is that the four criminal counts are based on the fact that Trump would not agree with the views of most experts and continued to challenge the election.

Quite apart from the fact that the experts are often wrong (see our January 28 article entitled Why Experts Are Almost Always Wrong), this is a very dangerous and slippery slope. Are we now in the position that the majority can decide when a politician is lying and charge him/her criminally for that lie? We wholeheartedly agree with law professor Jonathan Turley: “This case, which criminally targets the sitting president’s leading opponent, is much more dangerous because it sets up the federal government as the arbiter of truth…This indictment essentially charges Trump with not accepting the “truth.” There is no limiting principle to this indictment. The government would choose between which politicians are lying and which are lying without cause.”

In another one of his articles, Professor Turley goes on to cite the Supreme Court’s admonition (in the Alvarez case) against criminalizing false or misleading speech. The Court warned against giving “the government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought and discourse are to remain a foundation of our freedom.

We could not agree more. In our recent article Rejoice and Be Glad, we criticized the Biden Administration for what a federal judge decried to be “the most massive attack against free speech in United States history.” This indictment is more of the same. If we are not protective of our Constitutional freedoms, they will surely disappear. This indictment should be thrown out by the courts.