Yielding to Temptation: Jack Smith’s Indictment Seeks to Bag Donald Trump at any Cost

Below is my column in the Daily Beast on the second federal indictment of former president Donald Trump.  I remain deeply concerned over the implications of free speech from this prosecution. Indeed, the general dismissal of these concerns by legal experts shows how our current rage politics can blind us to dangers even to our own fundamental rights.

Here is the column:

In The Picture of Dorian GrayOscar Wilde wrote “the only way to get rid of a temptation is to yield to it.” In the second federal indictment against former President Donald Trump, Special Counsel Jack Smith seems to follow that advice in bringing a prosecution that pursues the president at any cost, even the First Amendment.

While the Wilde quote is well known, few ever include the second line: “Resist it, and your soul grows sick with longing for the things it has forbidden to itself, with desire for what its monstrous laws have made monstrous and unlawful.”

Smith resolved this struggle by yielding and not worrying about the thing “forbidden to itself.” Specifically, he jettisoned First Amendment protections to try to bag the former president for alleged crimes connected to Jan. 6.

While the indictment recognizes that politicians are protected in making false statements in elections, it proceeds to charge Trump for doing precisely that in claiming that the 2020 election was stolen. Smith simply charged that Trump did not really believe it, therefore it is fraud.

The implications of the filing were captured on CNN, where host Kaitlan Collins explained that “the First Amendment does not allow the President of the United States to go and claim there was fraud when he was told there was not fraud…”

That is, of course, entirely wrong. Just because you are told something does not mean that you have to believe it, or that you cannot publicly contradict what you have been told.

However, Collins did accurately describe Smith’s theory: you are allowed to say false things unless you should have believed what the rest of us were saying.

I was one of those saying that Trump was wrong. I criticized his Jan. 6 speech in coverage while he was still giving it. I wrote that he was wrong on the law and that Vice President Mike Pence did the right thing in certifying the election. However, being wrong is not the same as being a felon.

Most of us have no visceral opposition to indicting Trump or any former president. When Smith indicted Trump over documents at Mar-a-Lago, I wrote that I thought the indictment was well-supported and a serious threat to Trump.

That is why most of us were hoping that, if Smith was going to indict Trump over Jan. 6, he would do so only with the undisputed legal precedent and unassailable evidence. He offered neither. The complaint advances a novel legal claim with surprisingly little evidence of intent other than Trump was told by advisers that the allegations of a stolen election (and legal theory on challenging certification) were wrong.

It is important to note that Smith could still offer new evidence. There are a number of unnamed “co-conspirators” and Smith may be working to flip them. They could allege that Trump told them that he lost, but Trump still maintains that he believes (as do millions of Americans) that the election was stolen. Moreover, specific allegations on the submission of false electors include allegations of knowingly false submissions to the courts or Congress. Yet, they would need to establish that Trump knew and facilitated such false filings as opposed to following the advice of legal advisers.

As it stands, this is the criminalization of disinformation. It is consistent with the Biden administration’s effort to censor and punish those who refuse to yield on subjects ranging from climate change to COVID. That is why this is a free-speech killing case. Despite Supreme Court cases affirming that lies are protected speech, it would allow the government to arrest candidates who are refusing to listen to “the truth.”

Of course, it depends on who the politicians are. Democrats previously challenged certification of prior Republican presidents under the very same law used on Jan. 6. They also refused to listen to those who said that there were no valid grounds for challenge. During the Trump inauguration in 2017, there were also riots fueled by such claims. Yet, there were no indictments nor should there have been.

The difference seems to be Trump himself. It seems that there is no cost too great in the pursuit of Trump, even the defining right to free speech. Former Obama administration acting Solicitor General Neil Katyal actually declared that the indictment “is up there with Dred Scott, it is up there with Brown v. Board of Education.” It was a curious statement since the Dred Scott decision was a disgrace that treated African Americans as property, and led later to a Civil War. Likewise, treating this indictment as the same as ending segregation across the nation shows how untethered the analysis has become in the Trump era.

While Smith and pundits raised the Jan. 6 riot in defending the indictment, Trump was notably not indicted for any conspiracy to incite or seditious conspiracy. Those were the charges that the same pundits and politicians claimed were clearly established. They were used as the basis for the second Trump impeachment. Yet, Smith clearly did not find sufficient evidence to support such charges and instead charged him with spreading falsehoods about the election.

For centuries, we have debated what it would take to get a free people to abandon core liberties or due process. For many, Trump is the irresistible temptation and the First Amendment is now that “monstrous law” that makes them “grow sick with longing for the things it has forbidden to itself.”

249 thoughts on “Yielding to Temptation: Jack Smith’s Indictment Seeks to Bag Donald Trump at any Cost”

  1. Mr. Turley, I agree with you whole-heartedly, but you have missed the central implication of your own argument against the indictment: “Despite Supreme Court cases affirming that lies are protected speech, it would allow the government to arrest candidates who are refusing to listen to “the truth.” ” The SCOTUS ruling dealt with stolen valor. The politician KNEW what he was saying was a lie and yet SCOTUS still agreed that his lie was protected speech. It does not matter of Trump believed the election was stolen or not. If speech is political then it is protected, even flat LIES. Smith’s entire case is that Trump knew it to be a lie. SCOTUS says, “So what?”

  2. This past term SCOTUS gave us Smith v United States. The remedy for wrong venue is retrial. What are the chances a Trump counsel motion to transfer venue out of D.C. is decided by SCOTUS before any trial?

  3. Professor Turley,

    Here is John Eastman admitting in an interview that his plan with Trump was to overthrow the government.

    At 23:40, he says that the Declaration of Independence states that it is our right to alter or abolish the existing government when abuses become sufficiently intolerable. And recounts this right as justification for his fake electors scheme.

    They knew this was not a legal plan; rather, it was – in their mind – a justifiable extralegal action. As you hopefully know, a lawyer cannot knowingly advise a client to commit an illegal action. Thus, Trump cannot rely on Eastman’s “legal advice” as a defense to his actions. They were both part of a criminal conspiracy, and Eastman just flat out admitted to his role in it.

    1. Lmao… that is AI generated garbage and has been debunked many times.

      See how easy that was?

      Funny that “right” enumerated in the declaration of independence was not codified in the constitution.

  4. This is blatant election interference. That’s a fact.

    With the Boden crime syndicate, the corruption is the message. They use it as an instrument of power.

        1. Do you know the difference between fact and opinion?

          Reaching a legal conclusion necessarily cannot be a “fact.” One must apply the facts of the case to reach the opinion that such facts warrant the legal conclusion.

  5. Turley says: “Smith simply charged that Trump did not really believe it, therefore it is fraud.” Turley: you KNOW that’s not true. You KNOW Trump was charged for trying to steal the election based on his lies that the election was stolen from him. In fact, he still lies about this, and even gets millions of gullibles who watch media to which you contribute to believe this lie. Trump even called you out by name as supporting his criticism of being indicted, something of which you should be, but aren’t, ashamed. He claims you are “highly respected”–uh, not so much any more, since you went on the Fox payroll. You KNOW that Jack Smith went out of his way to make clear that he was NOT charging Trump for SPEECH–but for actions, including the getting fake electors in swing states to sign false Electoral College votes claiming that Trump did win (when he didn’t), all part of the plot, beginning with getting Pence to refuse the tallying of the certified votes on the nonexistent grounds of unproven fraud, to throw the certified results back to swing states for “reconsideration”, and then pressure SOSs in swing states to award Trump their votes–all BASED on lies. The fake Electoral College votes would already be signed. Brad Raffensberger had the presence of mind to record Trump demanding that he “find” him 11,780 votes, “which is one more than we have”. If this isn’t proof that he KNEW he lost Georgia–then, what is it? All of these things are ACTIONS, not speech, something else you KNOW.

    Trump has the right to lie is massive axx off, but it didn’t begin or end with lying. It went much further, and you KNOW this. There were meetings at the Willard Hotel and pre-Jan 6 reconnaissance done by the Proud Boys, to plot the easiest way to breach the Capitol by deflecting the Capitol Police away from the most-vulnerable points of entry so the crowd could get in and disrupt the proceedings. You heard Trump attack Pence, telling the crowd that he didn’t “do the right thing”, so they hunted Pence with a gallows, intending to lynch him, along with Nancy Pelosi. You also KNOW that Eastman said the plot to get Pence to refuse to accept certified votes was NOT legal–he said it in writing. You KNOW these things. WHY, other than you must need money, would you lend your support to defend someone like Trump?

    I’d like to know why you, Turley, have nothing to say about Trump deliberately defying the Judge’s order not to attempt to intimidate witnesses. You must have seen the (non) TruthSocial post threatening anyone who “comes after” him. Trump is pushing the envelope–part of his megalomanaical mental illness–no one, not even a federal judge, tells him what to do. IMHO, he WANTS the Judge to jail him, so he can claim his “free speech” rights were violated, and so he can, again, play the “victim” and fund raise over this–and, you’ll be right there, defending this arrogant pig. You really ought to be ashamed, Turley.

    1. U just make sh!t up, don’t u gigi!

      Lies, half truths, and baseless allegations are the rest.

      That was easy.

    2. “You KNOW that Jack Smith went out of his way to make clear that he was NOT charging Trump for SPEECH…”

      Yea, and he knows why, too. But some people are too gullible or deranged to see it.

    3. Turley, have nothing to say about Trump deliberately defying the Judge’s order not to attempt to intimidate witnesses.

      Turley is obviously a brilliant legal mind. But he too has decided to sell his soul. Read his blog….does he ever comment on the conservative side doing something wrong? Everything is anti – left. I get it….he’s conservative but man you’d think as a law guy he’d mix in changeup every so often. The Trump intimidation is prime example.

      I wish he’s play both sides, at least some of the time or maybe just a smidge.

  6. “Nothing in the charges filed Wednesday seeks to punish the former president for speech or advocacy as such. While the indictment does recite many things Trump said and calls them false, it identifies each such statement as being part of an overall course of conduct satisfying the elements of a crime under one of four federal statutes: conspiracy to defraud the United States, 18 U.S.C. section 371; conspiracy to obstruct an official proceeding, 18 U.S.C. section 1512(k); obstruction of and attempt to obstruct an official proceeding, 18 U.S.C. section 1512(c); and conspiracy to deprive persons of protected rights, 18 U.S.C. section 241.
    “It is long established and ordinarily uncontroversial that speech can lose the protection of the First Amendment if, for example, it seeks to intimidate a public official into shirking a legal duty, or if it consists of the submission of forged documents to a government agency, or if it solicits or facilitates crime generally (this past term’s Supreme Court decision in United States v. Hansen, criticized by colleague Thomas Berry on a different issue, reiterated that last simple truism). Speech that is part of a conspiracy to accomplish those things may be unprotected as well. …”

    1. “Nothing in the charges filed Wednesday seeks to punish the former president for speech or advocacy as such.”

      However, the author shares Turley’s concern that it can easily turn into that. We won’t prosecute so-and-so, because we think they were sincerely mistaken in their statements. But you, on the other hand, get 10 years because you knew your speech was false. You can see where the prosecutorial discretion can go into overdrive.

      Ironically, it will be solid Republicans like Bill Barr (no, he’s not a RINO Trump) who will be called as witnesses that can allay those fears. Barr has stated: “At first I wasn’t sure, but I have come to believe he knew well he had lost the election.”

        1. Well what do you think the word verdict means? It’s a 12 member opinion — often based on judgements of other witnesses.

          All fraud cases require the jury to decide the defendant’s state of mind. Skepticism is in order here. It will depend on Smith’s witness list, all of whom may be high ranking Republican position holders or staffers.

          1. And because they are Republican, their testimony has more credibility or bears more white?? Interesting since that 12 person jury you mentioned is supposed to be unbiased. This is the inherent problem with political prosecutions.

            1. ” This is the inherent problem with political prosecutions.”

              Impeachment. Problem solved, you’re welcome.

              But the GOP was ball-less………….

              1. Impeachment??? Yep, that was definitely a political stunt.
                I guess the DNC was sackless when they found Clinton innocent of that which he was clearly guilty of.
                And i assume they’ll check their gonads at the chamber door if/when Biden is impeached for his crimes.

            2. “And because they are Republican, their testimony has more credibility”

              Well of course it does. These are Republicans who were working for Trump and were supporters of his. These will be people who had direct conversations with the defendant about the election. For example, the first response by Trump to Barr after Barr told him there was no widespread fraud was: “You must not like Trump.” That type of inane response suggests a willing disregard for what an Attorney General is telling him about a D.O.J. investigation.

              Other witnesses may have heard the defendant concede defeat to them, but say he wanted to keep fighting anyway. That’s a nice way of saying he wanted to change the election results even though he knew he lost.

              Like I said above, I’m not making definitive statements here. Skepticism is in order. It depends on what witnesses who had direct conversations with Trump on the matter have to say.

            1. Don’t be deft. I’m talking about conversations witnesses had with the defendant. Obviously.

              1. “I’m talking about conversations witnesses had with the defendant. Obviously”
                Really??? Because this is what you said:
                “Barr has stated: “At first I wasn’t sure, but I have come to believe he knew well he had lost the election.””

                It sounds like barr formed that opinion based on things that have transpired since or things he has heard, not contemporaneously from conversations he had with Trump. Maybe i’m just being deft.

                1. “Maybe i’m just being deft.”

                  Yeah I think so. My comments are limited. And my skepticism of the indictment has been stated. So I think you should move on to Gigi.

                  I appreciate that Barr cannot get up on the witness stand and simply state the quote I posted. We’re in a comments section here. The quote is newsworthy. We’re just going to have to wait to see the specifics of his testimony. Discrediting Barr along with some of Smith’s other witnesses could be a challenging proposition.

                  Given the Russia Hoax, the D.O.J. as an institution has no leeway here. If Smith doesn’t have quality witnesses who testify to definitive statements made by Trump, it’s the end of the road.

                  1. To be clear, you thought i was being clever? It was not my intent. My point is that EVERY time jack asks a witness to give his opinion as to what trump’s intent was or what trump believed, he will be promptly objected and sustained, even by the hack lefty judge in this trial.

                    This is another huge waste of taxpayer dollars, just like the russia hoax you mentioned, in which hillary actually did defraud the us and the voters, and has neither been indicted or asked to pay the money back.

                    1. Yes, but a witness can say things like, he got angry when I told him news that he didn’t want to hear. Or he became intransigent when I said there wasn’t anything to it. The judge will allow words like angry and intransigent in those contexts. You can paint a picture of a person who is telling his aides to give him different information. “Something I can use.”

                      And there might be some witnesses who say he gave them definitive statements. I don’t think you can call this vacuous — yet. But you have every reason to suspect that it is.

                    2. Not sure i agree that a witness should be allowed to say …”news he didnt want to hear”, unless trumps response was specifically, i dont want to hear that. And i would consider the “angry” part more irrelevant than inadmissible.

    1. I love your wet dreams Wally, but this one takes the cake. You honestly think the Fulton county Georgia is so blue that trumps boys won’t find one Trumper in the jury pool??? Wake up Wally, it’s time to take your meds

      1. I think what we will find is even someone who voted from Trump will vote him guilty if the evidence points that way.

        “Trumpers” probably wouldn’t make it to jury.

        But beyond all that, as hard as you argue for the guy, how about a jury voting 12-0 that he’s actually not guilty. You seem to have a lot of theories why this case has no value. Have some confidence. Or is everything rigged?

        1. No, i just think that the extreme polarization is evident here everyday, and somehow u dont see it, or you dont think its pervasive throughout? People in this very blog, many of who would seem rational and coherent, even pretty intelligent, lose their f-ing minds when it comes to politics. You too are a dreamer. This isnt a murder case. I didnt vote for trump, nor do i waste much effort defending him, per se. But i tell you right now if i was on that jury, there is no way i would vote to convict. So there’s that.
          As for a trumper getting on the jury, i know you think they’re all dumb rednecks from arkansas, but i assure you, they aint (lol). You really think it would be that hard to tell jack what he wants to hear. And outside of DC, jack only gets so many declinations…
          A 12-0 acquittal? Lmao, not if he was accused of being the guy that brought the cocaine into the white house. What planet have u been living on? Is ATS the only person you know who thinks that EVERY complaint about Trump is and every allegation is true? Please.

          1. But i tell you right now if i was on that jury, there is no way i would vote to convict. So there’s that.

            Your definitive statement, without even knowing the evidence, is telling.

            You would not make jury lol

        2. “I think what we will find is even someone who voted from Trump will vote him guilty if the evidence points that way”

          Give me a break! In this forum, we cant even come to an agreement on the difference between evidence and allegation, for christ’s sake.

          And i gotta take severe umbrage at “if the evidence points that way”.
          Thats the standard now??? Guilty if the evidence points that way???

          I think you severely underestimate the degree to which both sides of the political spectrum have become deranged. If you don’t see it, or if you think its just one side, count yourself among them.

          1. And i gotta take severe umbrage at “if the evidence points that way”.
            Thats the standard now??? Guilty if the evidence points that way???

            Sorry, forgot I was on a message board and had to watch my verbiage.

            If the evidence presented shows Mr Trump is guilty, then even a person who voted for Trump in the election will vote against him in jury.

            So my point still stands.

            1. And I said you underestimate the staunch populists loyalty to Trump. Just like you unerestimate the TDS afflicting 40% the country.

  7. You have to wonder if Trump’s legal team will engage in the following strategy: they will say there is no evidence of substantive fraud, but that their client believed otherwise.

    The fraud intent standard is subjective. It’s not the objective reasonable person standard.

    1. Along those lines:

      Trump’s Prosecution Could Be Stymied by the Blurry Line Between Deceit and Self-Delusion

      His state of mind when he tried to overturn the outcome of the 2020 election remains a mystery, perhaps even to him.


      And if he’s being told by the lawyers he cherry-picked that alternate electors votes will only be counted if they are legally certified through the legislative process subject to judicial review, then in his mind it’s legal.

      1. I think this theory that Trump really believed it is not going to fly in the courts.

        It’s great to debate it here and makes for a fun back and forth – but when push comes to shove people know he was President of the United States. Given the evidence they’ll have – people testifying they told him AND he also knew and admitted it – it’s going to be a tough deal to secure he was living in an alternate universe.

        1. What country do you think the AmericanTrump hating Satanist-Pedo-Pedosupporters trash will flee to?

  8. Trump trifecta: in the last 24 hours, Trump has attacked the prosecutor, the judge, AND a key witness.

    He’s also complained about DC and advocated a federal takeover, and then claimed that he can’t get a fair trial in DC because he’s advocated a federal take-over.

    1. WTF constitutes a fair trial to you? To most people, it starts with an unbiased jury of 12 people. Please, try to make any argument that that’s a possibility in Washington DC.

      And dream on, because all it takes is one LMAO

      1. It’s easy. How many people live in DC? Everyone hates Trump? No one can in DC can look at a case unbiased?

        Dude, you’re begging. Not a good look (sorta like Trump).

        1. So trumps lawyers get to pick from everyone living in dc??? And can turn down as many as they want until they find the 1 out of 10 that doesnt hate him? Cant have a conversation with someone who pretends to believe that biden was elected because of his policies. If that were so, you wouldnt be among the 23% of the voters who feel the country is headed in the right direction.

          1. Take a criminal justice course on how juries are selected.

            Yes, it’s actually can be done.

            But since you’re on Team Trump, you’ll cry about it being rigged and unfair. Are you his lawyer? 😉

            1. U assume too much, Bill.
              And your response i suspect was intentionally vague. What specifically “can be done”?

              1. LOL, that you can select an impartial jury. Are you saying it can’t be done?

                You’re running out of deflections.

                1. “LOL, that you can select an impartial jury. Are you saying it can’t be done?”

                  I am absolutely saying that. To say otherwise is to completely deny the current political landscape. Look at the people on this very blog who are convinced of his guilt base on an indictment, including some who are quite learned in the law and very aware of the burden of proof in a criminal trial. This isn’t some nobody that the jurors never heard of.
                  Or better yet, lets enlist a jury made up of drugged out homeless people who have never seen the left wing news media’s reporting.

          2. biden was elected because of Trump, period.

            Fixed it for you.

            Your party can’t even move on from the guy. Embarrassing.

            1. I will grant your last two statements as true as well.

              However, the fact that you good people are not embarrassed about joe biden only serves to show the hypocrisy and derangement on the left. This f-stick was bounced out of 2 prior elections because he is a serial liar. He openly displays pedophile tendencies, was accused of same by his daughter, was credibly accused of sexual assault on the grounds of the capital, is on video making all manner of sexist, racist, mysogynistic remarks, including the real doozy about the man who chose him as his running mate. He has been shown on video MANY times kissing women on the lips and touching them inappropriately without their consent (how many videos like that of trump?)
              He promised to be the great uniter, and promptly called half the country the enemy. He promised to bring civility back (hows that working out). He promised this white house would be the most transparent ever, but i think the counter on kjp saying “i’m just not gonna speak to that” rolled over 1000 recently, he promised he would destroy covid and did no such thing. He destroyed many things, but not covid. And he asks us to this day to stop believing our lying eyes and accept that “Bribenomics” is great!

              Pretty embarrassing.

              I said in another post that if any of you dont think that the derangement is real and that its on both sides, count yourself among them.

  9. Pence this morning in an interview, re: whether Trump was asking him to pause certifying the election or overturn it: “But frankly, the day before January 6, if memory serves, they came back – his lawyers did – and said we want you to reject votes outright. They were asking me to overturn the election.”

      1. Change the results so Trump wins.

        Which would have happened had it been sent back to the individual states.

        Just look at the people controlling the state legislators – crack pots not living in reality.

        1. “Change the results so Trump wins.”
          Yea, thats what i thought. And how, exactly was mike Pence going to do that?
          You might want to review some history of contested elections and see how many times a vice president did that (changed the reaults). Hint—-its leas than zero. Reason, he cant. And thats NOT what he was asked to do. The devil is in the details. And any argument i have made in favor of trump is for that very reason.

          1. You might want to review some history of contested elections and see how many times a vice president did that (changed the reaults). Hint—-its leas than zero.

            Yeah, no sh_t. But that’s what this is all about, doing bat sh_t crazy stuff. See John Eastman.

            Oh what’s your defense….whatever Trump decided to try and do just would have been handled by the courts and/or rationale people in charge?

        2. “Just look at the people controlling the state legislators – crack pots not living in reality.”

          I think you’ve shown yourself to be what you are with that statement.

          1. Also, its “legislatures”. Unless you meant to suggest that the states are overrun with cabals pulling the strings of the addled puppet like the biden white house.

        3. “Which would have happened had it been sent back to the individual states.”
          And this statement clearly shows you need a civics lesson (or maybe just less time in the echo chamber)

          1. Tell us what would have happened then?

            Were those “alternate” electors just signed up for show? LOL

            1. I’m not going to do your homework for you. Go read about all of the previous contested elections yourself and draw your own conclusions. When u do, come back and let us know how many times “alternate electors” have been sent.

              1. LOL, now you’re getting turned around. Pence knew he couldn’t. Trump wanted that. And has admitted it….to the world LOL

  10. What good is a constitution if only one side believes in it?
    Clearly something is wrong here and the nine are sitting on their thumbs.

  11. Reading without understanding is called: “Reading comprehension disorder.”

    Exhibit A: The commenter who keeps harping “if you’d bothered to read the indictment.”

    Reading what is not really there, is called: “Text illusion.”

    Exhibit A: That same commenter — and the countless others who “see” in Smith’s indictment what they wish to see.

  12. “. . . what’s novel about Smith’s argument in the indictment.”

    That something-or-other is criminal, if Trump does it.

    Here’s what’s missing from that indictment:

    1) An identification of the specific *action* Trump took, that is allegedly criminal.

    2) The federal law that makes that action (whatever is was) a crime.

    (It’s pointless to copy and paste, for the nth time, the indictment. Doing so does not answer either 1) or 2). Neither does hand-waving about “conspiracy.” That merely begs the question.)

    1. “The indictment describes in detail the manner and means by which Trump allegedly conspired to impede and obstruct the collecting, counting, and certifying of votes in the presidential election. These means included an attempt to lean on state officials to subvert the vote; a scheme to organize fraudulent slates of electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin; an attempt to recruit the Justice Department to conduct sham investigations of voter fraud; an effort to convince Pence to obstruct the vote certification proceeding over which he presided; and an attempt to exploit the violence and chaos of the Jan. 6 attack on the Capitol to disrupt and delay that certification proceeding.”

      Since you seem to be having reading comprehension problems with the indictment itself, perhaps turn to analyses/summaries of it by others, like the one I cite here.

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