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 Gray, Oscar 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.”
A very curious thing happened yesterday, there was an actual negative and very personal story against Obama???? When I see something odd like this I ask the age old question, cui bono, who benefits. Well my thinking is the only people who could possibly benefit would be someone trying to damage the Obama “brand”, a new term I find banal. If the Obama “brand” is damaged the only possible beneficiary would be someone trying to keep Michelle Obama out of the nomination process when Biden goes down the political drain and that has to be either Newsome or Harris. My guess is Harris because she has the machinery of the federal government and all the corrupt agencies.
Just a little something to chew on as you all ignore and skip past “Anonymous” and his 200, now probably 300, comments.
HullBobby,
Dont forget she would have the support of MSM too.
Any criticism will be met with “Your racist!”
And if Tim Scott were to make a critical comment of Harris, MSM would attack him of being a Uncle Tom even if it was legit.
Upstate, the libs/media hate conservative blacks more than any other group. They will label Scott the black face of white supremacy as well as your aforementioned Uncle Tom.
The only minority that the left is currently helping is the trans movement, even to the detriment of their support among black and Hispanic voters.
Hullbby: This interview? https://www.foxnews.com/media/obama-biographer-ex-president-insecure-trump-terrible-scotus-stunning-interview
I note that Jack Smith makes the point in the indictment of saying that President Trump “made false statements about the election results.” Is that going to be the new exemption to the First Amendment? I ask that hopefully in jest; but with the Biden administration and the loose reading of statute by the Attorney General, Merrick Garland, I am not so sure about the answer.
I will also note that there have been many politicians in this century that have made demonstrably false statements about election results. None of these were ever prosecuted, even though Trump made a campaign statement of “Lock Her Up!” in regards to Hillary Clinton. Once he became President, he didn’t use that statement very often. And his reason for the statement in the first place was not related to her false claim that Vlad Putin put Trump in the White House.
I am left wondering what law Trump violated when he said the election was stolen from him, and why that “law” still exists. Based upon our system of legal supremacy, that “law” would be illegal under our Constitution.
From the indictment:
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;
b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified (“the certification proceeding”), in violation of 18 U.S.C. § 1512(k); and
c. A conspiracy against the right to vote and to have one’s vote counted, in violation of 18 U.S.C. § 241.
Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (“the federal government function”).
I hadn’t realized the bedrock function of the feddy gov was collecting and counting…
LOL
Jack is a MORON.
Thanks for pointing out that you don’t understand the Electoral Count Act.
“Thanks for pointing out that you don’t understand the Electoral Count Act.”
And if you do, you’re lying (yet again). Or you have some mystical powers of understanding.
Reads to me like it’s not about what Trump verbally said (free speech), but what he pursued.
They will try to make a connection that Trump knew what he was saying was false – and there are plenty of cases that support you can’t make false statements. And they’ll have people who worked for Trump to verify this.
And for goodness sake, even if Trump believed it what he did to seal the deal is what this case is about – illegal activities.
It’s not an open and shut case, Trump will have a chance but to me he’s on the losing side right now.
Turley is trying to connect it to free speech but he misses the mark completely IMO.
Excellent Points made, Sir!! Newsmax’s Greg Kelly (@gregkellyusa) showed clear evidence how ABC / ABC World News with David Muir Deviously Spliced the tape of President Trump’s J6 speech to give the impression he asked folks to physically fight at the Capitol!! Astounding Criminal Fake News!! Twisting the Free Speech of others!.. Their ilk completely glosses over the fact that Al Gore was allowed to contest the Election he believed was stolen without this kind of treatment..
Aren’t all of these charges fluff protected by egg shell, and vehement hatred?
Who else would be so charged?
What Katyal said was “It is one of — if not the most — significant case in United States history. It is up there with Dred Scott. It is up there with Brown v. Board of Education.”
It’s dishonest for Turley to say that Katyal’s “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.” Katyal didn’t suggest that Dred Scott was correct, only that it was one of the most significant SCOTUS rulings. Katyal didn’t suggest that this would be similar to ending segregation, only that — again — it was one of SCOTUS’s most significant rulings. This case, too, will be a historically significant ruling.
Turley often removes context and then misrepresents what someone is arguing. It’s a sad thing for Turley to do. It doesn’t serve him or anyone else.
Ann Coulter, no fan of Trump, drives home the 2020 ANTIFA BLM DNC problem front and center. Worth a read
The indictment does not charge Trump with “incitement,” and it’s not a crime to tell gigantic lies that lead people to commit acts of blinding stupidity. If it were, the entire media and Democratic Party would be in prison for life.
How about the lie the liberal industrial complex told nonstop in 2020 — and, in fact, throughout their entire lives — that black people are the victims of relentless racism in this country? How about their telling black Americans that they are justified in resisting the police, fighting with them and fleeing from them?
Those lies led to such an explosion of violence after the Day of Our Floyd, May 25, 2020, that by the end of the year, the annual murder rate had shot up by 30%.
As direct result of the media’s lies about racist AmeriKKKa, thousands upon thousands of people were killed who would otherwise be alive. The BLM/antifa riots caused billions of dollars in property damage — and that’s only counting insurance claims submitted in 2020. Not only that, but the orgy of homicide, violence, arson and robbery inspired by the media’s lies continues to this day.
The Jan. 6 riot itself — which, again, was a total embarrassment for Republicans — got no one killed other than one of the protesters, Ashli Babbitt. It did .00000001% as much property damage as the George Floyd riots. It has not continued with repeated right-wing riots every day since then
https://anncoulter.substack.com/p/breaking-trump-still-an-idiot
And then there’s Russiagate.
“The complaint advances a novel legal claim”
Yet Turley makes no attempt to explain what’s novel about Smith’s argument in the indictment. There’s nothing novel about the 4 crimes Trump is charged with: 18 U.S.C. § 371, 18 U.S.C. § 1512(k), 18 U.S.C. §§ 1512(c)(2), and 18 U.S.C. § 241.
what is novel about Smith is that he hasnt shaved, groomed nor pretended to look like a professional jurist. He looks like the Nazi that he is. So he has that authenticity going for him
Anonymous: Yeah…he did explain it: “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.” Try to keep up.
This indictment is NOT a threat to free speech. As SCOTUS held in United States v. Williams (2008), “offers to engage in illegal transactions are categorically excluded from First Amendment protection.” The fake electors scheme was an illegal transaction (some of these electors have already been charged with crimes). The effort to pressure Pence into acting unconstitutionally and contrary to the Electoral Count Act was an illegal transaction. This speech isn’t protected.
Pence had the power to reject selected electoral votes. (Congress changed the law…)
More accurately, Pences actions would not be reviewable. Thus asking, is not a crime. (despite the Legislation being of questionable Constitutionality
There is not, and never has been any law or constitutional provision for the VP to reject EC counts. Either quote the law, or STFU.
How quickly they forget (or evade) the “faithless electors” attempt of the 2016 election — a political move pushed by the Left, that was motivated by the exact same legal theory used by Eastman.
Lawrence Lessig, a Harvard Law prof (backed by Tribe), declared that he was “teaming with a California-based law firm to offer legal support for any members of the Electoral College seeking to oppose President-elect Donald Trump.”
The Left gives double standard a bad name.
(Apologists are now free to parse words, to create the illusion that the two cases are somehow “different.”)
Learn the difference between faithless electors (valid electors who choose not to vote for the candidate to which they’re pledged) and fake electors (non-valid electors who illegally declare themselves to be valid electors).
“fake electors”
Learn the difference between an objective presentation and one fuming with smears. In reality, they’re called “alternate electors.”
No, I’ll call them what they are: fake. They did not meet the legal requirements to be valid electors.
“They did not meet the legal requirements to be valid electors.”
Really?
Do tell: What are the “legal requirements” for *each state* where those alternate electors were appointed?
Nothing is stopping you from looking it up for yourself. Not my job to tutor you.
You’re the one who made the claim, that you now cannot prove. Your assertion that “they did not meet the legal requirements” is, in fact, utterly arbitrary.
And your smear of them as “fake” is a deceit motivated by a desire to manipulate others.
Yet again, you’ve been caught with your pants down — in public.
Its not arbitrary. He heard it on msnbc or read it in a left wing rag or blog.
“Nothing is stopping you . . .”
You are as dishonest and deceitful as they come.
You constantly bludgeon others with “burden of proof.” Yet when that concept applies to your assertions, you ignore it and deflect.
Just following your example. You refuse to present evidence to me, and I respond in kind. If you don’t like it, then don’t do it yourself. But don’t refuse to present evidence when asked and then demand that others do it when you ask.
“Just following your example.”
Nice rationalization.
Still waiting for your evidence that the appointment of alternate electors (by the *state legislatures*) “did not meet the legal requirements.”
Absent that, your claim remains yet another Leftist hoax. And the Left’s description of them as “fake” (as opposed to “alternate”) remains a vicious attempt to manipulate the public’s emotions.
“Just following your example.”
Do you often excuse your own bad behavior with: “Well, Johnny [allegedly] did it, too”?
Former A.G. Bill Barr: “As the indictment says, you know, they’re not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech. So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”
“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.”
Thankfully, the professor is correct that “being wrong is not the same as being a felon” because if it were the same thing, the professor might have been sent up the river with his prized pupil, notarious Trump-hater Michael Avenatti, after the professor helped sell the future convicted multiple felon to America at this very website, heaping praise and accolades upon Avenatti even after he’d perpetrated much of the felony conduct for which he would be disbarred and convicted not long after the article was published here:
Turley and Avenatti To Appear At GW Event
https://jonathanturley.org/2018/04/18/turley-and-avenatti-to-appear-at-gw-event/
“He was in my torts class as a first-year law student and then worked with me on national security issues, including constitutional issues relating to the Foreign Intelligence Surveillance Act (FISA). He graduated Order of the Coif.”
“Avenatti later established the Michael J. Avenatti Award for Excellence in Pre-Trial and Trial Advocacy, an annual award given to a member of the graduating Juris Doctor class who demonstrates excellence in pre-trial and trial advocacy.”
“Despite his legendary career, his most famous case began in March 2018 when Avenatti filed a lawsuit on behalf of adult film actress Stormy Daniels seeking to invalidate a 2016 “hush” agreement regarding an alleged affair with Donald Trump in 2008.”
Well, perhaps it was a bit premature to call that Avenatti’s “most famous case.” As we all know, not too long after that glowing testimonial, there’s was a bit more added to the Avenatti biography and praise heaped upon him by professor Turley:
Lawyer Michael Avenatti Sentenced to 14 Years in Federal Prison for Stealing Millions of Dollars from Clients and Tax Fraud
https://www.justice.gov/usao-cdca/pr/lawyer-michael-avenatti-sentenced-14-years-federal-prison-stealing-millions-dollars
So I believe that rather than accept the professor’s judgment concerning the case(s) against Trump, I’ll wait for ALL of the evidence to be presented as related to the current legal armageddon before I decide which side represents the forces of good vs. the forces of evil.
I’ll wait for ALL of the evidence to be presented
We all will wait, with baited breath, for your expert legal analysis to be posted on Professor Turley’s blog since admittedly you have been banned from every other political blog on the internet
because clowns are gonna clown
Turley’s paid attack dog says what?
Smith’s just another dirtbag brought back from the Hague to do dirty work for his equally corrupt boss who, to our great fortune, was not elevated to the SCOTUS. Given the wretch who appointed him, all becomes crystal clear.
The indictments are a ploy. Nobody wants a trial. They are a cudgel to beat Trump with by the media, Democrats, and never Trump Republicans for the next year and a half. Expect leaks to continue dripping out between maybe another indictment or two. The trials will be delayed until after the election and then Trump will be pardoned by Biden, hoping to set a precedent for his pending legal problems. Biden will not be the Democrats candidate.
Ballot box or Cartridge box?
Sounds like a recipe for Civil Upheaval? Recently the ATF stated 700 million guns in circulation.
They think they can just use mandates and mask us to control us. Wait until the American NAZIS declare a “Climate Emergency”. Then they seize control of Energy, Water, Food, means of production and property.
Sounds like scary black rifle territory.
Say When
Insanity like this used to be fodder for cable access shows because most of us thought it was insane. We pointed and laughed should we happen to encounter them flipping channels. That in the 21st century they are trying to televise the trial on major networks (a la the dem’s J6 sitcom, which was hilarious) and have/had overtaken entire social media sites to hammer their madness home is telling. In the end it makes them look like the petulant children they are, but at the very real expense of our liberty. They are destructive in the manner of toddlers, either not comprehending the mutual detriment, or not caring. That such a percentage of the populace goes along with it hungrily is equally telling. These are miserable people which would be fine be fine if their stranglehold on power weren’t nearly absolute for years. Time to deliver the much needed spankings in 2024.
Is this a real article? Good grief.
What is the point of this comment? Are you asking because you’re astounded that it has to be written? Are you intending to criticize the article? If so, what is your substantive response?
This clearly isn’t a first amendment case and Jon absolutely knows it. You can say you wish to rob a bank and that’s totally legal. The problem is Trump said all these things he and they actually “acted” on them. His own team of republicans provided ALL of the evidence. A lot of it we all observed in real time, on video, or on tape. I’m a lifelong Republican. I don’t know what the hell happened to our party but the things we used to stand for like small government, personal Liberty, and strong defense have all been jettisoned and our party has morphed into following one man. It’s a damn disgrace.
The weight of solid evidence being revealed every passing day about the criminal acts of the Biden Crime Family (BCF) makes the candidacy of President Biden for POTUS in 2024 virtually an impossibility. The DNC is frantically trying to de-Californicate Gavin Newsom in hopes that he may be able to step in and accept the nomination. All of this augurs well for the 45th POTUS to become the 47th POTUS and likely in a landslide despite the efforts of his corrupt opponents. Trump, in my opinion, has a good case to argue selective and insidious prosecution. These elements usually result in courts dismissing charges and the proof here is overwhelming to say the least. Never before has a single individual faced the unlawful use of state and federal judicial systems as often or as seriously as Trump. In the words of Justice Learned Hand, reason eventually will surface. It cannot happen fast enough!
Is it time to bring this tradition back to politics yet?
https://en.m.wikipedia.org/wiki/Duelling_pistol#/media/File%3AFrench_cased_duelling_pistols%2C_Nicolas_Noel_Boutet%2C_single_shot%2C_flintlock%2C_rifled%2C_.58_caliber%2C_blued_steel%2C_Versailles%2C_1794-1797_-_Royal_Ontario_Museum_-_DSC09477.jpg
I like this! But is has to be Trump v. Biden. personally – no proxies, no champions, just the principals.
Works for me.
Amazing how far Joe Biden will go to keep his family business going. And don’t you all agree that Federal Indictments are a GREAT distraction from all those pesky little shell companies, off-shore bank accounts, and wire transfers from Ukraine, Russia, and Romania that are due to arrive next week before the House Oversight Committee ? Hell, you can even get the Secret Service to cover your cocaine deliveries at the White House. Is this an amazing country or what !! Thank you, Jonathan, for an excellent article.
Spot on, Skyraider!
I don’t know about anyone else but I can’t wait to ignore the 200 comments posted by “Anonymous”.
👍 … and renew (but not improved) “Jeff”. 🤭
LOL
@Hullbobby
That’s a part of my morning ritual, too. Goes great with French Market coffee.
James,
That and some fresh still hot beignets!
I have been to the original French Market in NOLA.