Making History in the Wrong Way: The Second Trump Indictment is a Threat to Free Speech

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

499 thoughts on “Making History in the Wrong Way: The Second Trump Indictment is a Threat to Free Speech”


    “repeated and widely disseminated (the lies) anyway – to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and fear

  2. Anonymous
    And Trump would have won by 10 points but for covid, election fraud, press and social media censorship, ballot harvesting.

    In Jan 2020 when I posted that Claim Trump was stting on the best economy since Bill Clinton.
    The Collusion delusion had mostly been exposed as a fraud.
    Democrats had a bevy of absymal candidates – including Biden – who frankly was failing.
    Ukraine Alone should have derailed the Biden campaign – which is PRECISELY why Democrats had to impeach Trump for trying to expose the Biden family Fraud.

    As to Global Warming – I do not talk about “climate change” that is more idiocy of the left – the constant of the universe is change of COURSE claimate is changing.

    As to the causes of “Global Warming” I have made no hard and fast claims. My argument is not about whether or even why the earth is warming at the moment. It is about the malthusian nonsense that whatever the earth is doing is a disaster.
    That is totla garbage. Just as EVERY end of the world claim by left wing nuts in my lifetime.

    There are many many many many things we do not understand today.
    The questions are infinite the answers we have are few.

    I can offer 10,000 questions you can not answer or at best you can only guess.
    I am not obligated to explain life the universe and everything in order to point out that YOU and the cult of warmism is WRONG.

    I have NEVER offered any explicit explanation for any form of climate change that I have posited as the explanation for Everything. Though I have citred MANY factors that are certainly true as rebuttles to warmist nonsense.

    There is actually a simple excel spreadsheet that only uses 7 solar cycles to predict further global temps.
    Is it Truth – absolutely not. but it is more accurate in its predictions than ANY of the global climate models.

    The mathematical odds that the earth will be 0.5C warmer in 50 years than it will be 0.5C colder – are about even.
    There is far too much that we just do not know.

    But one thing we actually do know is:

    who is man that thou art mindful of him ?
    Psalms 8:4

    Look out at the universe – we are nothing.
    look at the solar system – we are nothing.

    All human energy consumption for all time is dwarfed by the energy produced by a single moderate huricane.

    And you are arrogant enough to think we are consequential ?

    Warmism is a religious cult. It presumes that man is both evil and far more powerful than they actually are.
    It is Hubris.

    I do not claim to know all the answers.

    Only that you are wrong.

    I would further note that totally blind the odds are in my favor.

    All Malthusian claims EVER have proven false.

    You point out one prediction I was wrong about – which I have explained.

    But yopu completely ignore the FACT that I have been personally right far more than any on the left – ioncluding your so clalled experts about pretty much everything.

    I was right about the collusion delusion.
    I was write about the Biden family corruption
    I was right about nearly everything regarding Covid.
    There are dozens of aspects to covid and the ONLY one I was wrong about was by expectation that natural immunity – and I do NOT mean immunity by infection. would protect abotu 2/3 of people from serious harm – except even there – I was still probably right. Vitamin D is about an order of magnitude more benefical than the vaccine.
    TRegardless, we can go through dozens of covid claims – and I was right – and the “experts” were Wrong about ALL of them.

    Nor am I claiming brilliance -= just the ability to do middle school math.

    I am constantly right about significant public issues – why ?
    Not because I am some genius – I have deliberately avoided asserting my IQ as an example – because it is not relevant.
    Everything here I have ever claimed. Everything I have ever claimed as false can be established with a minimal knowlege of history, a minimal understanding of logic, and a millde school competence in mathematics.

    determining whether there is water on a planet dozens of light years away requires very complex mathematics and real geniues, and comes with incredibly high error bars.

    Determining that computer models that are on average 2.5 std devs away from reality in their predictions are wrong – does NOT require genius.

    Determining that a mask with at best a 77% effectiveness is not going to be more than a road bump to a virus that has a transimission rate of 2.5 at the lowest is NOT higher math.

    Determining that Putin is NOT going to favor the candidate whose EVERY policy is bad for Russian does not require brilliance.

    I was right that the massive covid spending by Trump and then Biden would cause inflation.
    And that it would damage the economy.

    Everything I have been right about and everything you and the left have been wrong about is pretty basic. And does not require an IQ in the top tiny fraction of 1%., In many instances those with IQs below average can manage it – why can’t you ?

    If the standard for credibility is wh has been right more often and who has been wrong more o\ften – and that actually is the standard for credibility


    And you lose to people FAR LESS intelligent than I am.

  3. “John B. Say, the reason why replying to those anonymous posters is because they are being actively censored. You’ve noticed none violate the civility rule and Darren doesn’t address the “problem” directly. He needs to either admit they are being deleted for a reason or admit two posters are banned. The deletions are disruptive and demolish legitimate debates. Completely contrary to Turley’s claims of being a free speech absolutist.”

    Again a ludicrously stupid argument.
    You are successfully posting. No one is stopping you.
    The problem here is that my ability to reply to your garbage is being hindered.
    You are not being censored – I am – albeit mildly.

    Not permitting a reply to your post does not censor you – it censors ME.

    Are you completely clueless ?

    As to should you be censored ?
    Turley can have whatever rules he wants for his blog.
    If he wishes to have a rule that bars ad hominem – I doubt you would be able to poost at all.
    But still you are able to post – so clearly Turley is not restricting ad hominem.

    I do not know what rules Turley is ACTUALLY using – but based on the offensive comments he allows – anything that is actually being censored must be really bad.

    Left wing nuts on this blog have been able to freely post defamatory, remarks.
    Turley tolerates not only defamation of other postgers – but defamation of him.

    I would have sero problems with a rule that barred attacking Turley’s person on Turley’s blog.
    But there is no such rule.

    If you have been censored in the past – I suggest that you go back and look at the posts that got you in trouble and REALLY look.

    You left wing nuts are horrible people. You are racist, intolerant, arrogant, offensive derogatory. and immoral.
    As has been self evident from our exchange – you have no idea how to make an argument without ad hominem.

    And you are so poorly educated and raised that you do not even understand that is poor conduct.

    There is ample reason to censor you.

    I personally would not – and as best as I can tell outside of actually illegal content – such as copyright violations no one has been censored here mearly for being a left wing nut intolerant defamatory racist,

    And I would heavily encourgage Truley and Darren to be very careful about “civility” rules.

    The best punishment for immoral, intolerant ignorant racist left wing nuts is for their posts to be FEATURED publicly.

    You should feel lucky that your posts are anonymous – 10 years from now you may find them an embarrasment – if you have the slightest decency at all.

    Though you are not even honest with yourself. So I would not be surprised if 10 years from now you were claiming to be “John B Say”

  4. Anonymous
    none are so blind as those who refuse to see.

    There are over 60 court cases regarding the 2020 election – not a swingle one of which was decided based on EVIDENCE.

    Any case that did not go to a hearing with witnesses, and cross examination and discovery was not decided based on evidence.

    Our Law and judicial procedures require that evidence is presented in a trial, by witnesses, and subject to cross examination.

    Many cases never get to trial. They are dismessed byt eh courts for LEGAL reasons, or procedural reasons.
    The courts CAN NOT dismiss any case for reasons based on EVIDENCE prior to the completion of a Trial.

    There were no trials regarding election claims. There is not a single 2020 election fraud claim that has been adjudicated based on the EVIDENCE.

    Saying otherwise is either deliberately lying – which lots of democrats have done, or it is ignorance of the law.

    I do not expect the most recent Smith indictment to last through an appeal to the Supreme court.
    I fully expect the sock pupet judge that is the entire reason for bringing the case to issue an unconstitutional gag order and to prevent Trump from arguing that the election was stolen. Though if she does that she will be obliterated on appeal.

    Smith is trying to argue that Trump KNEW the 2020 election was not stolen. That argument REQUIRES that Trump be allowed to attempt to prove in court that it was. The government can not bar that evidence – because this is THEIR case. The judge can not dismiss the case on legal grounds – without ending the prosecution of Trump.

    While I fully expect that she will try. She will ultimately fail. Smith can not argue that Trump knew the election was not stolen without opening the door to Trump bringing evidence that it was. That alone could take MONTHS to present.

    There are only three possibilities in this case open to the government.
    Gag Trump and conduct a star chamber trial that will get quickly overturned on appeal – if it even gets to trial.
    Allow Trump to present months of evidence regarding election fraud in 2020 – including subpeoning all kinds of people.
    Or drop the case.
    Trump’s lawyers have already announced their intention to use the case as an oportunity to present the evidence of Election Fraud. I do not hink this judge will allow that. And that alone – along with dozens of other reasons – including failure to state a crime will get this dismissed.

  5. “however scotus has narrowed that definition quite a bit.”
    FALSE. Scotus narrowed nothing. Bribery remains illegal.
    Explicitly Taking $10M for excercising the power of public office to the benefit of another is completely illegal. It does not come close to running afoul of SCOTUS.

    What SCOTUS actually did was to thwart the overly broad interpretation of the law.
    Congress could make what SCOTUS struck down crimes and SCOTUS would uphold that.
    What SCOTUS stopped is prosecutors trying to prosecute as bribery things that are not bribery.

    “Ted Cruz successfully made certain types of bribery legal.”
    Ted Cruz is a single senator, he is one vote in 100. He does not have the power to make anything legal.

    “They categorized it as protected free speech activity.”
    Again you are incredibly confused about the law.

    The issue in McDonald was NOT speech. It was quite simply that the conduct being prosecuted was NOT bribery – it did not fit the law as written. Congress – can correct that by writing law that makes that specific conduct a crime.

    There are many free speech cases – none have anything to do with bribery.

    Political speech has ALWAYS been the most protected form of speech in this country.
    That has been true for the entirety of our existance. The instances in which SCOTUS has briefly allowed laws that infringed on political speech have been rare and shortlived.

    My GUESS is that you are criticizing Citizens United. But as is typical – you have neither the grasp of the facts or the law to even make an argument that is understandable.

    Instaed we get “GARBAGE” like – “Ted Cruz did something I do not like”.

    Citizens United was a trivial case – only left wing nuts though it would go any other way. It is consistent with 250 years of prior precident. You can not regulate speech by regulating the necessities for speech.
    \You can not regulate political speech by saying – only after midnight.,
    Or only in the basement.
    Or you can speak all you want – but not on TV or the radio – because government can deny you the political contributions necescary to pay for the adds.

    There is almost nothing about a political campaign that is not ultimately about free speech.

  6. anonymous – the rare arguments you make are garbage because thye are self contradictory, double standards and drowning in hypocracy.

    Your claims are predictable – If Jack Smith indicted Trump for stepping on the cracks on the sidewalk – you would be arguing for the death penalty. If Joe Biden mudered someone on national television – you would be arguing it was not a crime.

    You do not know the facts – and you do not care.
    You just make up what suits you.

    You do not know the law – and you do not care – you just make up what suits you.

    That is GARBAGE.

    And even you KNOW IT – because you mostly stick to ad hominem – because your grasp of facts and law is so incredibly weak.


    “You’ve been presented with plenty of specifics before. You dismiss them as “garbage” and “nonsense” and return to your debunked claims over and over.”


    The vast majority of your posts are nothing more than ad hominem. They contain no facts of any kind at all.
    On rare occasions you make very shallow efforts to make piss poor arguments.
    Routinely you are not only complete wrong about extremely well known facts – such as that the DHS/DOJ/FBI have all been CAUGHT and even ADMITTED to poltiical censorship in an election.

    Your lack of knowledge is YOUR problem not mine. Regardless, your failure to know facts – does not make them go away.

    Beyond that your “facts” and “arguments” when you actually make them are heavy on spin and light on facts and universally light on specifics.

    As an example – you have claimed that lying is a crime.
    That is false – only an idiot would say such a thing.

    You are CONSTANTLY claiming that something is a crime based on incredibly broad restatements of the law or often more correctly based on incredibly broad restatements of what you THINK the law is.
    You do not ever think – if the law is as I claim it is – could it even possibly work ?
    Could you actually have a government that could function if that was the law ?
    Or conversly if govenrment has that much power – could everything ELSE actually function.

  8. Anonymous
    “John B. Say spends multiple posts asserting his alternative reality, so much BS. WOW.”

    If that were true – you would actually be able to demonstrate it.
    You would not need to fixate on ad hominem.

  9. “Did VP Biden have the power to deny Ukraine $1B in US aide ? Yes”
    No he didn’t. He didn’t have the power to deny Ukraine $1B on his own. It wasn’t just Biden being involved, congress, the EU were also involved.”
    The involvement of other people does not change the fact that he had the power to do what he threatened at the time he threatened it. Congress had delegatged the power to the executive, and Obama had delegated it to Biden.
    The EU BTW was NOT involved in the $1B of aide. European countries have their own political processes.

    “Trump tried to illegally withhold military aid until Zelensky provided dirt on Biden.”

    You are honestly a big enough idiot to try to compare these two ?

    False. The transscript is available. There was no threat. Trump made no threat. Zelensky perceived no threat,
    Myriads of people testified, there was never a threat. Nor was there a quid pro quo.

    That said Trump WAS legitimately allowed to MAKE SUCH A THREAT – just as Biden was allowed to threaten Ukrainian aide to get Shokin fired. Presidents make threats all the time. It is part of the job. Further most foreign aide – as well as other funds allocated by congress, has provisions that permit the president to withhold those funds.

    Had Trump actually threatened UKraine there would have been TWO important questions:
    Was Trump’s Threat a legitimate excercise of Government power or was it for personal benefit ?
    Was there a legitimate basis for the request ?

    Whether you like it or not – there was excellent reason to investigate the Biden’s dealings in Ukraine in 2105.
    And in 2019 DOJ quietly and unknown to Trump opened that investigation.
    Trump was asking for something that DOJ had already started – because there was far more than enough evidence for an investigation. And today we have 1000 times more still.
    You idiots impeached Trump for seeking a legitimate investigation of an obviously corrupt politician.

    With respect to Biden and Ukraine – we are so far past the nutjob left wing claims that Shokin was Corrupt – that left wing conspiracy theory is DEAD. Burisma was paying $10M to get Shokin off their back.
    If Shokin was corrupt – they could have just given the 10M to Shokin.
    Instead the PAID the Biden’s – that is a personal benefit.
    Finally VP Biden KNEW that Shokin was not corrupt – how ? Because Biden was getting paid to Fire him.
    Burisma was not paying the Biden’s $10m to get rid of an honest prosecutor.

    “That was not the intent of congress. Trump went beyond the intent of congress when he tried to extort Zelensky for information regarding Hunter Biden. That’s why he got impeached the first time.”

    Both wrong on the law and wrong on the facts.
    Biden actually extorted Ukraine.
    Trump could have LEGITIMATELY extorted Ukraine.
    Even Biden could have legitimately extorted Ukraine if TWO things were true – Shokin actually was corrupt AND Biden was not getting paid by Burisma to get him fired.

    The executive branch of the US governmetn extorts foreign countries ALL THE TIME.

    As to the “intent of congress” –
    You do not know what that was AND it is not relevant.

    Both Biden and Trump were bound by the ACTUAL LAW – not guesses as to what some congressmen intended.

    VP Biden is actually allowed to extort foregin countries to fire corrupt prosecutors, and President Trump is empowered to extort foreign countries to investigate the actions of US corrupt politicians in those countries.
    Congress does not have the power to prevent that, it falls under both the national security and foreign relations powers of the president.

    This issue is not CAN THEY DO IT.

    There is little if any US law regarding foreign relations that is constitutional.
    Nor is that accidental.

    The relations between countries in the world is an actual example of functional anarcho-capitalism.
    There is no actually biding law. There is no international police force. What international law exists – is not LAw enforceable by the force of a government. it is mutual agreements that nations chose to follow and that can only be enforced by War.

    Nations and their presidents are free to extort each other. To use FORCE – and they MUST be free to do so, specifically because there is no actual world govenrment.

    What US politicians can not do is TAKE BRIBES.

    Biden did. Trump sought to have that investigated – and idiots that democrats are – they impeached him for that.

    And you are actually stupid enough to argue that is justified.

    Your argument has developed to democrats can do whatever they want and republicans are criminals if they follow the law.

    1. I for one would like to see one shred of documentary evidence that Biden was given the authority to leverage $1B. The VP does NOT have the authority do that unilaterally.

      1. Had Biden sought to make good on the threat – he would have, and Obama would have allowed it.
        And there would maybe have been minor outcries in congress, but mostly it would have been nothing.

  10. Of course lying is legal. What kind of idiot are you ?

    Is Hillary Clinton in prison ? Is Adam Schiff ? is Joe Biden ? Is Eric Swallwell ?
    These and dozens of other democrats have been constantly caught in lies.
    Nor are lies by politicians limited to democrats.

    You have lied CONSTANTLY in your posts here – I do not see Jack Smith on your doorstep.

    There are a few very specific conditions in which lying is a crime. Lying under oath is a crime.
    Though the standard of proof is incredibly high and the law requires the opportunity to correct any misrepresentation before a crime can be charged.

    There are a few more cicrumstnaces in which lying is a CIVIL violation of the law. Such as defamation.

    Everything that you think is wrong is not illegal. Everything that you think is a crime is not.

    Finally there is probably NEVER a circumstance in which political speech is EVER criminal – whether truthful or not.

    And all of this of course ignores the more serious problem that Trump DID NOT LIE.

  11. AnonymouS
    “What a giant load of BS. Everyone saw what happened. Trump’s supporters definitely stormed the Capitol. They were screaming it as they were smashing windows and barricades to get in.”
    What everyone saw was a heavily edited very breif cherry picked subset of what occured.

    The “star chamber” Version. There are 41,000 hours of video. 99.99% of which has no violence at all.
    Further missing from the video “everyone” saw is the parts where the capitol police engaged in -0 and often instigated the violence.

    NEarly all the violence you rant about occured in the West Tunnel Entrance. That was a VERY TINY portion of the event.

    BTW people scream at every protest – is that your new standard ?

    Almost no one smashed windows, alsmost no one smashed baricades.
    In many instances the baricades were removed by the CP themselves.
    There is thousands of hours of video of people PEACEFULLY marching through the capital.

    Even Chansley – who was featured prominently in YOUR media circus – turns out – he did not “break in”
    He walked through an open door infront of numerous CP officers, he was even given a tour by them.

    All in all the J6 even was LESS vilent that any 2020 night in Portland.
    Than the Kavanaugh Protests,
    Than the George Floyd protests, than events in Times Square in NY yesterday.

    This should not be surprising – the vast majority of participants were current or retired police or military.

    I have no problem with prosecuting those that violated ACTUAL LAW – laws that are constitutional.

    But the J6 protestors had the ABSOLUTE constitutional right to assemble, protest, petition government and speak politically.
    And they had the right to do so AT THE US CAPITOL.

  12. “He was being forced to do what he had no power to do.”
    Forced ? How so ? Did Trump have a gun ?

    Words have meanings.

    Further Pence absolutely had the power to do what Trump asked – and had he done so no one could have stopped him.
    And this is a stupid argument. The VP can not make whoever he wants president. But he can literally stand before congress and bold faced lie to them. Just as myriads of other politicians do on a daily basis.
    As the presiding official over the election certification – have can conduct the process however he pleases. What he can not do is control the way that each congressman votes.

    “What Trump wanted him to do is unconstitutional.”
    How so ? It is what Hillary attempted in 2017. She tried to get electors to change their votes – and several did.
    She tried to get democrats to object to the certification – and several did. In fact democrats have objected to the certification of the election EVERY time a republican has been elected president in my lifetime.

    That is perfectly legal. Perfectly constitutional.
    And what Trump sought to accomplish has happened before. in the 1876 hayes/Tilden election – Tilden the democrate appeared to have defeated Hayes the republican. But there were competing claims of election fraud and multiple slates of electors,
    and congress postponed the certification fo the election appointed a commission to look into the election,
    a backroom deal was struck, the commission recomended that Hayes be certified as the winner and in return Hayes ordered federal troops out of the south.

    While it was highly unlikely that Trump could pull off something similar, Attempting to do so is OBVIOUSLY bother legal and constitutional.


    I would further note that in November ofg 2020 Van Jones noted this as a possibility, pointing out that it was possible, legal and constitutional.

    Van Jones is not some right wing nut. He is pretty far to the left.

    Trumkp was not going to succeed. And PEnce is incorrect in his claim that he was asked to do something unconstitutional – and he knows it. He was however asked to do something that was not going to succeed and that would likely end his political career.
    Trump could and has survived this. Pence would not have. I think Pence was wise not to do as Trump asked. But he is lying when he claims he was asked to do something unconstitutional, and Pence likely knows enough about the constitution to know that.

    Further Pence OBVIOUSLY was not “forced” – he PLAINLY chose not to do as Trump asked.

    One of the differences between asking and forcing – including asking by rant, or impolitely, and force is that people do what they are FORCED to do, or that FORCE is used against them. Did Trump break Pences leggs ? Did he shoot him ?

    “He had no power to decertify state electoral counts.”
    Correct, only the state legislature and congress can certify election counts”

    But the VP is a member of congress, and the VP is the presiding officer in the congressional certification – that means he gets to direct the process. He can present the states in whatever order he chooses, he can present the slates appointed by state legislatures. But congress has the final vote.

    “Which is what Trump and his enablers wanted.”
    No, actually read Eastman’s “plan” which was derived from Tribes, which was based on the 1876 election.

    You seem to think that the certification of the election is cerimonial.
    It is not. What if Joe Biden and Kamala Harris were both killed in a plane crash after the election – is Congress required to certify ?

    What if on J5 news broke that proved beyond any doubt at all that Joe Biden had engaged in Massive election fraud.
    Would Congress be obligated to certify the election anyway ? Of course not.
    The constitution does not dictate that congress must certify the popular or electoral vote in an election – and on rare occasions it has not. The expectation is that it will. The expectation is that only extra-ordinary circumstances should cause congress to do something besides certtify the vote of the electoral college. But nothing in the constitution is ceremonial.
    Congress was given the final word on presidential elections with very little in the way of constitutional constraints.

    While contests in congress are rare in the past 100 years – they were commonplace when the nation was young.
    It took 76 ballots in CONGRESS before Thomas Jefferson was made president by vote of CONGRESS.

    Whether you like it or not, the final word on who is president belongs to congress. If you do not like that – change the constitution.

    Nothing Trump sought to do was unconstitutional.

    “They were pressuring him to violate the law.” That is not even possible.
    As I said before – congress can not make a law or regulation regarding how it conducts itself that it can not choose to violate.
    That is not an opinion it is an established constitutional fact.
    Pelosi made a big deal over passing a new election control act that supposedly closed the loophole that allowed for the possibility of what Trump sought. That was a meaningless gesture. The only means that one congress has of exercising control over the way another congress exercises its constitutional powers is by amending the constitution.

    The supreme court has routinely found unconstitutional laws that congress passed that attempted to control the way future congresses conducted their business.

    Graham Rudman – was found unconstitutional. The Sequestration act was found unconstitutional.

    Both were good ideas.

    Something is not constitutioonal – becuase you like it, or unconstitutional because you do not.
    Nor is something constitutional because it is a good idea – even one liked by nearly everyone.
    Nor is something unconstitutional because many or all do not like it.

    Trump and eastman were throwing a hail mary. It was not going to succeed. But there was no constitutional or legal problem with what they were attempting, only a political one.

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