Below is my column in USA Today on the second indictment of former President Donald Trump. While many are celebrating the charges, the implications for free speech are chilling. While Smith did not charge incitement or insurrection (or seditious conspiracy), commentators (and Smith) portrayed the case as holding Trump accountable for the actual riot in the Capitol. Notably, the same pundits and politicians previously insisted that the rejected crimes were obvious and well-established. Indeed, Trump was impeached on incitement charges. They are now shrugging off the conspicuous omission of those charges while attacking those of us with free speech concerns as apologists.
Here is the column:
Special counsel Jack Smith made history on Tuesday.
It wasn’t just the federal indictment of a former president. Smith already did that in June with the indictment of Donald Trump on charges that he mishandled classified documents.
No, Smith and his team have made history in the worst way by attempting to fully criminalize disinformation by seeking the incarceration of a politician on false claims made during and after an election.
The hatred for Trump is so all-encompassing that legal experts on the political left have ignored the chilling implications of this indictment. This complaint is based largely on statements that are protected under the First Amendment. It would eviscerate free speech and could allow the government to arrest those who are accused of spreading disinformation in elections.
In the 2012 United States v. Alvarez decision, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who lied about military decorations.
The court warned such criminalization “would give 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.”
That precedent did not deter Smith. This indictment is reminiscent of the case against former Virginia Gov. Bob McDonnell. His conviction on 11 corruption-related counts was unanimously overturned by the Supreme Court in 2016, with Chief Justice John Roberts writing that federal prosecutors relied on a “boundless” definition of actions that could trigger criminal charges against political leaders.
Smith is now showing the same abandon in pursuing Trump, including detailing his speech on Jan. 6, 2021, before the riot while omitting the line where Trump told his supporters to go to the U.S. Capitol to “peacefully” protest the certification.
While the indictment acknowledges that candidates are allowed to make false statements, Smith proceeded to charge Trump for making “knowingly false statements.”
On the election claims, Smith declares that Trump “knew that they were false” because he was “notified repeatedly that his claims were untrue.”
The problem is that Trump had lawyers and others telling him that the claims were true. Smith is indicting Trump for believing his lawyers over his other advisers.
I criticized Trump’s Jan. 6 speech while he was still giving it and wrote that his theory on the election and the certification challenge was unfounded. However, that does not make it a crime.
If you take a red pen to protected free speech in this indictment, it would be reduced to a virtual haiku. Moreover, if you concede that Trump may have believed that the election was stolen, the complaint collapses.
Smith also noted that Trump made false claims against the accuracy of voting machines in challenging the outcome of the election. In 2021, Democratic lawyers alleged that thousands of votes may have been switched or changed by voting machines in New York elections. Was that also a crime of disinformation?
Smith indicted Trump because the now former president “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” The special counsel also says Trump “repeated and widely disseminated (the lies) anyway – 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.”
Let’s acknowledge that Trump was wrong. The election wasn’t stolen. He lost, and Joe Biden won.
But how do you prove legally that Trump truly didn’t believe his false claims? And even if you can prove that Trump lied, how do you legally distinguish his falsehoods from the lies other political leaders have told over the years? When, in politics, does making a false statement cross the line into criminal behavior? Those are questions Smith and his team must answer in court, and ones that Trump’s defense team is likely to raise.
Polls previously showed that roughly half of the public viewed earlier charges against Trump as politically motivated. That is why many of us hoped that any indictment would be based on unquestioned legal authority and unassailable evidence.
Smith offered neither. This indictment will deepen the view of many in the public that the Justice Department is thoroughly compromised in pursuing political prosecutions.
These concerns were magnified Tuesday by Smith, who announced the charges with comments that made him sound more like a pundit than a prosecutor. The special counsel gave an impassioned account of the Capitol riot that made it sound like Trump was charged with incitement. He wasn’t. Nor was he charged with seditious conspiracy, despite his second impeachment on those charges.
Notably, many of the legal experts praising the indictment previously insisted that there was a clear case for incitement against Trump. Indeed, Democratic members made the claim the center of the second impeachment, despite some of us writing that there was no actionable claim.
Even Smith wouldn’t touch the incitement or sedition claims that were endlessly pushed by legal experts and Democratic members.
Instead, Smith will seek to criminalize false political claims. To bag Trump, he will have to bulldoze through the First Amendment and a line of Supreme Court cases. That’s why this latest indictment of Trump isn’t just wrong. It is reckless.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley
“Smith and his team have made history in the worst way by attempting to fully criminalize disinformation by seeking the incarceration for a politician on false claims made during and after an election.”
This is total BS. Smith is NOT “attempting to fully criminalize disinformation.” Everyone should read the indictment for themselves to understand the actual charges: https://www.courtlistener.com/docket/67656604/1/united-states-v-trump/
The crimes charges are DEEDS, not speech. Trump can lie to the public as much as he wants when it comes to legality. What he cannot do — but did do — is enter into conspiracies with other to carry out crimes.
For better discussions:
terikanefield.com/trump-january-6-indictment-over-the-cliff-notes/
https://www.emptywheel.net/2023/08/03/the-elements-of-offense-in-the-trump-january-6-indictment/
Darren, thank you for deactivating one of my links, to make it possible for the comment to post. I hadn’t attended to the fact that I’d included 3 links instead of only 2.
anytime
I realize that the defense is going to argue against bringing this case to trial within the speedy-trial time limitation. That’s evident from this passage in a NY Post article:
“Prosecutor Thomas Windom challenged Lauro’s request, telling Upadhyaya that ‘this case – just like any other case – will benefit from normal order, including a speedy trial.’
But Lauro said it would be ‘somewhat absurd’ to schedule the unprecedented proceedings to take place within the standard 70-day timeline typically allotted under the speedy trial right enunciated by the Sixth Amendment.”
https://nypost.com/2023/08/03/in-court-with-trump-lawyers-launch-bid-to-hold-up-jan-6-case/
It’s amusing that the prosecutor is pretending that the speedy-trial right is there for the benefit of the prosecution. That made me laugh outloud, and I wouldn’t be surprised if there wasn’t some snickering in the courtroom, since one would have to be legally illiterate to not know that the purpose of the speedy-trial right is to benefit the defendant, if the defendant so chooses. It’s NOT there for the convenience or tactical advantage of the prosecutor.
But that said, I’d be tempted to shoot for the speedy-trial date, IF there were some guarantee that an appeal of a wrongful verdict would be just as speedy. I might even be tempted to waive trial by jury, since in my own court experiences that makes any possible appeal that much easier. In any event, getting this BOGUS case out of the way quickly and starting off with a victory for the defense would probably be the best possible way to begin the series of legal actions coming, including one or more prosecutions yet to be formally launched.
On the flipside, I suppose Trump’s lawyers can do a BIG bunch of discovery in preparation for this case that could also be valuable for some or all of the other cases against Trump. So I suppose it would be prudent to use this case to get as much discovery as possible, especially discovery that could be relevant to the other cases, as concerns irregular conduct by Joetard’s prosecutors.
And meanwhile, in the background, there will be evidence accumulating against Joetard for engaging in some of the same conduct for which one or more of the other cases accuse Trump of conduct that Joetard also engaged in as VP and private citizen with less right to do so than a president or former president, and other impeachable conduct related to financial crimes or irregularities.
“repeated and widely disseminated (the lies) anyway – 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.” – This perfectly describes the Russia collusion hoax, actually.
Yes, but they must project their larger, immense crimes, onto the innocent Trump.
They are mental, one giant blob of mentally ill power crazed out of control whack jobs.
the Bidens are a symptom not the problem….a DC funded by enemies of the USA and corrupt Federal Government are the PROBLEM
Simply, nothing undermines public faith in elections more than a corrupt Department of Justice selectively prosecuting cases like these. Jack Smith should immediately indict himself.
Selectively? Was there another attempted coup that somehow the entire world missed? And just to prebut you, correctly saying Russia interfered in the 2016 election and wanting an investigation is not an attempted coup.
LOL – they all knew it was a lie concocted by the clinton losers campaign.
as usual the demoncrats are 1000 percent guilty and are projecting their crimes onto Trump.
It’s amazing how it is every time, every single time.
The demoncrats party acts likely a mentally ill girlfriend, you catch her in the act and she immediately says you did it.
The Democrats are fighting a CIVIL WAR…there second. The GOP isn’t!
The USA is at the point Germany was in the 1930’s….BLM riots, Jan 6th, Antifa, a totally corrupt DOJ, Judiciary, FBI, etc….a totally absent GOP leadership, a corrupt wall street/DC. The USA may not survive the next 5 years!
If, by November 2024, Biden and Family along with the rest of the unscrupulous, wretched and morally depraved lot he calls an administration haven’t been relegated to history’s dung heap, WE the jury will have to decide what kind of a country this is to be.
Some, including Bill Barr, have said that this is not a free speech issue because Trump took action based on his knowingly false views. All conspiracy cases impinge on free speech, they say. I am not persuaded by this.
1. The first amendment also protects the right to petition for redress of grievances, and a lot of what Trump did falls into that category.
2. I don’t see how Trump’s actions were criminal. He sought to persuade those with the power to do something about the election results to do it. They were not persuaded. Even if he lied about some things in seeking to persuade them, where is the crime? It is very common for those who lose elections to seek a better result after the fact through one stratagem or another. So long as these stratagems involve efforts to persuade, in a court or through communications to officials and legislators, how are they criminal?
“He sought to persuade those with the power to do something about the election results to do it.”
He sought to persuade them to do things that are illegal. That’s what makes it a conspiracy. Conspiracies involve plans to commit crimes.
“where is the crime?”
Read the indictment, it spells them out: https://www.courtlistener.com/docket/67656604/1/united-states-v-trump/
“So long as these stratagems involve efforts to persuade, in a court or through communications to officials and legislators, how are they criminal?”
But it’s not legal for lawyers to seek to persuade the court by lying to it. That’s why Giuliani’s law license was suspended and Sidney Powell was sanctioned (and I expect both to be charged eventually as well). Similarly, it’s not legal to try to “persuade” fake electors to declare themselves as legal electors when they didn’t meet the legal requirements to be legal electors. Some have already been charged. It actually matters what Trump and his co-conspirators were doing with their communications: attempting to commit crimes.
Of course the indictment cites criminal statutes. That does not make the conduct criminal. Here Trump was asking courts and public officials to do things they had the lawful power to do. He made arguments as to why they should exercise that power. In making those arguments he is alleged to have said things he knew to be false. They were not persuaded.
Lawyers may not lie to a court. Perjury is a specific crime. Fraud to steal money is a specific crime. Making knowing falsehoods in an effort to persuade an official to exercise a power he has violates no criminal statute. It’s up to the official to consider the argument and make his decision. And if all the allegations in the indictment are true, that’s what happened here. That’s it.
“Lawyers may not lie to a court.”
Yet some of Trump’s lawyers lied to multiple courts at Trump’s request.
“Making knowing falsehoods in an effort to persuade an official to exercise a power he has violates no criminal statute.”
Depends on the power they’re attempting to exercise. In this case, the fake electors were attempting to violate 18 USC 371 and 18 USC 241.
Trump also attempted to pressure Pence into acting unconstitutionally.
It’s strange that you say these acts “violate[] no criminal statute” when the criminal statutes are listed in the indictment. You need to make an actual argument for why the acts don’t violate the listed statutes.
“You need to make an actual argument for why the acts don’t violate the listed statutes.”
BACKWARDS, as usual.
You haven’t made a valid argument for how it does.
See how easy that is?
Daniel: “Making knowing falsehoods in an effort to persuade an official to exercise a power he has violates no criminal statute.”
What power does the official have?
Also, you keep using the term “persuade.” That is not not accurate. The use of threats makes it COERCE. If all Trump did was to file non-frivolous lawsuits, write op-eds in the Journal, and make speeches, then there would be no indictment. Words matter.
In another comment, I recommended a couple of other discussions of the indictment: https://jonathanturley.org/2023/08/04/making-history-in-the-wrong-way-the-second-trump-indictment-is-a-threat-to-free-speech/comment-page-1/#comment-2309177
And here’s a third that I recommend:
https://plus.thebulwark.com/p/trump-usual-defenses-wont-work-new-indictment
Or, OR, you could Read Turely, Dershowitz, and Ex Federal Prosecutor Andy McCarthy.
All men held in high regard in the legal, constitutional fields.
Believe are not,
The LARGER POINT. There ARE legal minds on both sides of this debate. All three were welcomed in leftists circles, before Trump entered the DC Arena and leftists LOST their minds. They then started to hack away at the Constitution in the blind fear, to rid themselves of this intruder.
+100
BTW, Teri Kanefield, who wrote the first of the two commentaries I recommended in my 7:59 AM comment, is a lawyer and she reads and answers questions posted to her blog. So you might want to post your question to her and see what she says in response.
I read Teri Kanefields’s cut an paste concerning the indictment. She offers zero opinion and only repeats the DoJ mantra. Not a single thing there that wasn’t laid out by midnight of the day the indictment landed.
The co-conspirators organized fraudulent slates of electors in 7 states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin) by mimicking the legitimate procedures followed by the real electors.
So she calls the electors ‘fraudulant electors’ but notes they were gathered using the existing rules to gather electors. If needed the State Legislature could consider them.
No laws broken there. Just following the established procedures.
I wonder if any of these folks involved in this persecution understand that IF any of those running on the GOP side will have them indicted for this conduct?? The list of knowingly false claims about Trump alone (some resulting in an impeachment trial that was knowingly false) is huge! From Biden to Clinton, to Comey and Brennan, to Schiff and Schumer all will be rounded up and indicted for this behavior. Or and I mean OR do they know the 2024 fix is in????????
12 minutes of Democrats lying about stolen elections, rigged voting machines, and attempting to overturn elections by objecting to seating of electors.
The fix is definitely in, they are working furiously day and night on all fronts and backs in cahoots with anyone they can grab or corner besides their enthusiastic regular criminal demoncrats. Affirmative action voting, reparations, and stopping orange Hitler – the most and ultimate import of their lives, ever.
To imagine they won’t cheat and lie 100% of the time is to be a fool.
..now having accepted your argument, Sir, re: the Attack on Free Speech, we should add that WE will never know for sure that ‘Trump was wrong..’ ..in light of all the reported anomalies, including re: the programming via the computers that were always online (programming which could have been executed remotely or deleted itself after execution) which made changes in the middle of the night… e.g., the two ex-Navy cryptologists’ presentation of their forensics/ data analysis: showed totals were subtracted from DT in one county in western PA and then the same totals added to JB later in another county near Philadelphia, while keeping the grand totals the same…ergo, we can only ‘assume’ and not really ‘acknowledge’ . ..as.. where there is smoke there is fire..’.
Not just reckless, but stupid and improvident. The Left keeps setting precedents that they will someday rue. And soon.
What everyone ignores is that Democrats cannot afford to permit history to record the 2020 as “stolen.” Yet as we all know, federal and state governments were weaponized, and fraud did occur, on historically unprecedented levels. The Covid narrative is the very same, if not itself part and parcel… this was a manufactured “pandemic” to the benefit of both politicians and pharmaceuticals, which seemingly continues to cost American lives through both illness and the cure. Political corruption is so prevalent, so pervasive, if not for “free speech” one wonders what, if anything, would differentiate us from the Chinese?
I’m hoping the defense uses this trial to present all illegal, fraudulent and unconstitutional actions in the 2020 election. This is an opportunity to present the receipts. The mainstream media and the courts have never allowed this. They claim Trump and many others are knowingly lying, well let’s show them the evidence. No way Biden got 81 million legal certified ballots. Biden won a record low number of counties but recorded a record number of votes! The voter turnout in 2020 was the largest increase from the previous election ever recorded. With millions of mail in ballots what could possibly go wrong
Democrats of today have zero power over historians in the future. History is written at least 50 years after the events in order for politics of the time to have no influence.
The party that once stood for the working class is really no longer needed the working class is no more. The Democratic party has essentially through hubris dismantled what their purpose was once. Agree the constitution and prior cases are ignored because again even the supreme court is viewed wrong as the last interpreter etc…I am reminded and wish someone would speak like Justice Scalia now at this juncture about the role of the Supreme Court.
@Apetri
I personally believe the democratic party only ever favored any of the things they did which might be viewed as positive because it was politically convenient in what was then the modern world. JFK was an anomaly, and they killed him for his troubles. I once had a friend who was part of the Johnson lineage, and I’m here to tell you they were elitist and insufferable to the core, and it was generational, not due to exceptional acuity or ability. Trust funds out the wazoo. I am not at all surprised by the Bidens’ privileged boo sheet, in different times they’d likely have been dukes and duchesses with all of the privileges that used to imply. It’s the insanity of their corruption not even registering with the sheep who endorse them that is shocking to me. Wake up, already.
We are simply seeing out in the open what was always true, the dems were always the party of dem control and dominance, not the party of the people. They don’t even like other people, let alone love them, enough to live side by side with them in true equality. And it is nothing new. Somewhere, King George is laughing his a** off.
“Let’s acknowledge that Trump was wrong. The election wasn’t stolen. He lost, and Joe Biden won.” No, Professor Turley, I’m not willing to acknowledge that. Should I expect the FBI to kick my door down at 5 am for saying so? I stayed up on Nov. 3 and watched as all the battleground states where Trump was poised to win magically stopped counting and didn’t resume until days and even over a week later. The whole thing stank to high heaven, there was and is abundant evidence of fraud, and your refusal to acknowledge that is based simply on the fact that your guy “won.” We are all learning together how your “moderate” Biden is a fiction based on lies and more lies. But let’s face it, we knew that already. Many Democrats said they believed Tara Reade, but they also said it didn’t matter. To them, saying “grab ’em by the —” as Trump did, was more egregious than actually doing it, as Biden did. If anyone can be said to be entirely corrupt, it is Joe Biden. For him to NOT steal an election would be out of character.
For whatever reason, Joe Biden and Donald Trump are linked in some kind of weird symbiosis. They are doppelgangers. We have seen that everything that Trump was accused of, Biden actually did. Thanks to Biden’s dirty deeds done dirt cheap, our country’s leadership is entirely compromised. What else did Biden promise the Chinese, the Ukrainians, the Russians, and whoever else? When their interests contradict American interests, what happens then? Does anybody on the left care at all about the peril our country is now in thanks to the guy you all voted for?
I feel like a kindergarten teacher trying futilely to explain to 5 year-olds that just because little Donnie is fat and orange and obnoxious doesn’t mean he’s wrong, or that it’s okay to beat him up, and just because little Joey is slick and popular amongst bullies doesn’t mean he’s right, or that he gets to do whatever he wants.
In his novel “The Once and Future King,” TH White described King Arthur as standing against the principle that Might makes Right. We are right back there now. The Biden injustice department is prosecuting Trump, not because it’s right, but because they can. Who will stop them? When Trump is sentenced to six centuries in jail and possibly death, by an Obama appointee, what happens then?
The irony is that the left seems to be gradually awakening to the evil with which they have saddled themselves, but they don’t know how to get rid of it. Again, Trump’s fate and Biden’s seem to be inextricably intertwined. Only when you can admit you have made a mistake will you get rid, not just of Biden, but of Trump. People like me who voted for Trump in 2016 with a clothespin on our noses would have soon tired of his antics had it not been for the unrelenting and entirely unjustified attacks. The left made me a diehard Trump supporter. The left has created this monster that you are now trying so desperately to kill.
There is a very simple solution. Support the impeachment inquiry, and if the evidence warrants, tell your leftist senators to vote to convict, get rid of this Biden albatross, make Kamala an offer she can’t refuse, possibly making infomercials somewhere far, far away from the American government, and get McCarthy in there as acting president. McCarthy is nobody’s dream president, but if he is acting president at this time next year, he will get the Republican nomination and probably win the general election, and Trump goes back to hitting golf balls. Making a martyr of Trump will not make him go away.
Might never has, and never will, make Right.
The left has become evil.
Arresting political opponents, shutting down free speech, spying on churches, using undercover agents and assets to provoke mob violence, enabling the trafficking of women and children, enabling the trafficking of dangerous narcotics, evangelizing the genital mutilation of minor children, requiring racial discrimination in the workplace, and imposing a higher cost of living on working-class Americans who drive motor vehicles that use gasoline and diesel.
you forget BLM, rogue DA’s, antifa, agent provocateur across FBI, DOJ, DNC, Judiciary, etc
They can give Trump the comfy chair, poke him with the soft cushions, and give him tea and crumpets all day long for a week. Then let this nonsense go the way all nonsense should.
https://youtu.be/PDBiLT3LASk
Absolutely Spot On, Sir… a masterly analysis… Trump, et al, really did nothing different than what happened in the aftermath of the 2000 election, literally, in asking for microscopic forensics……………..
When does Joe get indicted for his knowingly false statement in the debate about Hunter’s laptop, or about his knowledge of his son’s business. Sounds like he defrauded the US too.
When do the leaders of the FBI, IRS, DOJ, CIA, NSA, etc get indicted for their MANY crimes?