The Trump indictment is not about speech

The First Amendment does not protect criminal conspiracies

There is a lot of bad information out there about the recent Trump indictment relating to January 6. Some of it is the product of wishful thinking while some is the purposeful work of grifters who are trying to encourage Trump’s base.

I’m not a lawyer so I’m going to defer on some of the technical legal questions. “Advisory Opinions,” the must-listen legal podcast with Sarah Isgur and David French, has two very good episodes on the laws involved. The first is an overview of the statutes while the second revisits the erroneous claim that prosecutors do not have to prove intent. I don’t subscribe to the Dispatch, but I’ve mentioned before that “Advisory Opinions” is an excellent podcast that is available without a subscription. Additionally, Ken White, the former Twitter user better known as Popehat, has a substack that skewers Andrew McCarthy’s claim in “National Review” the fraud charges against Trump are illegitimate because there was no “money or tangible property” involved.

Image by Gerd Altmann from Pixabay

Those pieces are definitely worth visiting, but I want to address a third fallacy, namely the claim that Trump is being prosecuted for his speech. None other than Justin Amash made this claim in a tweet yesterday in which he opined that the indictment “attempts to criminalize Trump’s routine misstatements of fact and law in connection with the 2020 election.”

Sorry, Justin, but a simple reading of the indictment (which is available online and I highly recommend it) explodes Amash’s claims. Indeed, the reader only has to reach the third and fourth paragraphs to find Jack Smith’s explanation of why Amash is wrong:

3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.

4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:

a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;

b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified ("the certification proceeding"), in violation of 18 U.S.C. § 1512(k);and

c. A conspiracy against the right to vote and to have one's vote counted, in violation of 18 U.S.C. § 241. Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation's process of collecting, counting, and certifying the results of the presidential election ("the federal government function").

This explanation is borne out by the charges, which are:

• Conspiracy to Defraud the United States—18 U.S.C. § 371

• Conspiracy to Obstruct an Official Proceeding—18 U.S.C. § 1512(k))

• Obstruction of, and Attempt to Obstruct, an Official Proceeding—18 U.S.C. §§

  1512(c)(2), 2)

• Conspiracy Against Rights—18 U.S.C. § 241

Note that three of the charges relate to conspiracy, while one charge is for the act of obstructing an official proceeding. The indictment specifies that this was the counting of the Electoral votes on January 6.

Even though three of the charges relate to conspiracies, there still is no First Amendment issue. In a nutshell, laws against criminal conspiracies are well established and the First Amendment does not protect speech that involves criminal activity.

I consider myself to be a staunch advocate and defender of the First Amendment, but rights are not unlimited. The classic example of a limit on the freedom of speech is that falsely yelling “fire” in a crowded theater is not protected. Lying to people in order to steal from them is also not protected. We call that “fraud.”

It stands to reason that lying to people in order to entice them to overturn an election for you should also not be protected speech. Indeed, if we constitutionally protect the act of trying to steal an election, we will be planting a bomb with a delayed fuse that will eventually destroy the Constitution.

Donald Trump absolutely had a right to make false statements about the election and claim that he won, regardless of the facts. He did not, however, have a right to use those lies to further a plot to overturn the election under false pretenses.

Along similar lines, Donald Trump is not protected because his conspiracy failed. This line of thinking calls to mind a classic “Simpsons” clip in which Sideshow Bob laments that he was “convicted of a crime I didn’t commit. Attempted murder! Honestly, what is that? Do they give a Nobel Prize for attempted chemistry?”

There is a mountain of precedent that attempting to commit a crime is still a criminal act. The fact that the crime was not successful is not relevant. In other words, incompetence in carrying out a criminal plot is not a defense.

We have a long way to go before we see Donald Trump in jail, and I’ll be the first to admit that a conviction is not a sure thing. Trial lawyers will tell you that there is always an element of doubt when a jury is involved. For example, the luck of the draw may place 12 red hats in the jury box. Even if there is a conviction, there is a chance that the Supreme Court will overturn it because the laws in question have not been used in the past in exactly the way that Jack Smith proposes to apply them. But then again, we’ve never had a president attempt to stoke an insurrection to block Congress and the Electoral College from fulfilling their duties.

Having said that, I do believe that the statutes apply and that Donald Trump clearly violated the law. The indictment repeatedly uses phrases like “fraud, dishonesty, and deceit” and “knowingly false claims” when discussing Trump’s activities.

However, the section of the indictment that is headed “The Defendant's Knowledge of the Falsity of His Election Fraud Claims” does fall short. This section lists numerous times in which Trump was told by his advisors that the claims of widespread election fraud were false. Apologists like Erick Erickson have pointed out that Trump could still believe the lie no matter how many people told him the truth. In that case, the “corrupt intent” required by the statutes could be lacking.

What I expect to see at the trial is evidence that Trump knew that he lost yet told his supporters otherwise. That evidence could come in the form of text messages, emails, recordings, or testimony from other witnesses. In fact, one such piece of evidence has already emerged.

Cassidy Hutchinson was a former White House aide and assistant to Mark Meadows who testified before the January 6 commission. As part of her testimony, Hutchinson said that “he [Trump] had said something to the effect of ‘I don’t want people to know that we lost, Mark, this is embarrassing.”

Hutchinson’s testimony speaks to Trump’s state of mind. If her version of events is accurate, Donald Trump clearly knew that he lost the election and just didn’t want to admit it. He wasn’t fighting election fraud, he was fighting the will of the voters. That establishes criminal intent.

Expect more testimony like that of Cassidy Hutchinson. Will anybody be willing to go under oath and testify that Trump absolutely believed that he was the rightful winner and never admitted behind closed doors that he knew that he lost? We’ll see.