In the wake of the second indictment of Donald Trump, many law professors have offered good-faith rationales for why the four counts do not violate the First Amendment. Some of these columns respond to my view that the indictment would criminalize disinformation and political speech. While I respect many of these commentators, including my good friend Bill Barr, I wanted to briefly address some of their points. These points have previously been made in my earlier columns but I wanted to offer a comprehensive response to some of these arguments.
At the outset, I feel that I should make clear that I have no qualms with indicting Donald Trump or any current or former president. Indeed, decades ago, I wrote academic pieces arguing against the Justice Department position that a sitting president could not be indicted in office. Likewise, while I have been highly critical of the Alvin Bragg indictment in New York, I long said that I thought Trump would be indicted in the documents matter at Mar-a-Lago. When the indictment was filed, I felt it was strong on the evidence and the law. That does not mean that the allegations are true or proven, but it is a sound indictment on the law and evidence.
I have previously written that I believe that the second federal indictment is an attack on free speech. Indeed, as a criminal charge against one of the leading candidates for the presidency, it could not raise more serious concerns over the criminalization of speech. I readily admit, as some have noted, that I have been called a free speech absolutist. In reality, I am not. However, I admit that I tend to oppose most limits on free speech, particularly the criminalizations of viewpoints.
As I said from the outset, Smith could still have direct evidence to submit, including possible witness testimony. From the first day of the release, many of us noted the absence of references to figures like former Chief of Staff Mark Meadows. It is possible that they could offer compelling testimony on Trump’s state of mind, even though I do not believe that would remove the constitutional concerns surrounding this indictment.
Constitutional Lies and Trump’s State of Mind
Most of the indictment is a listing of false statements made by Trump on the election and its certification. The government repeatedly accused Trump of making “knowingly false statements.” The indictment recognizes that false statements can be protected under the First Amendment.
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.
Some commentators have acknowledged this countervailing precedent but note that you can still be prosecuted if you make false statements about your military service for pecuniary or financial gain. That is, of course, true. Speech is a part of all crimes in some form and lies can constitute criminal fraud or conspiracy.
However, in this context, the underlying false statements are being made over an election that was widely criticized by Republicans over changes to voting laws and the use of mail-in ballots. The question is whether such political speech becomes criminal because Trump and others refused to accept the results of the election.
Speech as Conduct
In addition to my book coming out in 2024 (“The Indispensable Right: Free Speech in the Age of Rage”), I have a law review article coming out that deals with the treatment of speech as conduct. The second indictment is based on the same basic model in my view.
Various writers have noted that Trump is not being charged with criminal speech per se. Again, that is obviously true. Even the most anti-free speech prosecutors convert speech prosecutions into alleged crimes. Sometimes it is disturbing the peace or seditious conspiracy, but that has not stopped the Supreme Court from declaring such charges as unconstitutional criminalization of speech.
There is no question that committing fraud for pecuniary advantage or conspiring to commit crimes are not violations of free speech. The question is whether a candidate making false claims about election results can be treated as the same type of fraudulent effort for personal gain.
However, the “acts” are based on Trump continuing to challenge the election even though the government insists that he really did not believe his own objections. That is a dangerous standard to embrace. It would mean that the government could prosecute candidates based on whether they were making false statements (protected) or false statements without cause (not protected).
Take the alternative set of electors. Smith notes that these alternative electors were organized in various states where the Trump campaign was alleging voter fraud or irregularities. That has happened in the past both in the Nineteenth Century and Twentieth Century. The question is whether the effort without adequate support is criminal and whether Trump can be charged for encouraging or facilitating such efforts by third parties.
It also ignores one other threshold element. Even assuming that you can conclusively show that Trump did not believe he won the election, it is still possible that he believed that he had a legal basis to prevail. Elections are about counting votes. George W. Bush may have recognized that Gore won Florida but still litigated whether some of his votes could be counted or challenged.
Likewise, Democratic lawyers like Marc Elias alleged that thousands of votes may have been switched or changed by Dominion voting machines in New York elections. Was that also a conspiracy to deprive people of their voting rights?
Democrats repeatedly challenged certification of Republican presidents under the same law with no support. Were they also conspiring to obstruct an official proceeding? How do you draw a line in future cases to give sufficient notice to others?
The Specific Crimes and Underlying Conduct
On the election claims, Smith declares that Trump “knew that they were false” because Trump was “notified repeatedly that his claims were untrue.” Putting aside the right of Trump to believe one set of lawyers over another, you would need to prove that Trump knew that there was no chance that the vote counts were wrong. He could, for example, believe that there were not hidden votes in suitcases under tables but still believe that he could challenge sufficient votes to make up a difference of only around 11,000 votes to change the result in Georgia.
There are four counts to the second indictment: 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.
Each of these counts are based on the fact that Trump would not yield to the views of most experts and continued to challenge the election. However, he had a right to seek judicial relief and to use the same federal law previously raised by Democrats to challenge certification. He also had a right to seek vote recounts.
For example, Smith discusses at length the calls with Georgia officials on Trump’s demand for a recount.
There were two calls on the Georgia electoral challenge. The transcript was published by the Wall Street Journal. In both calls, Trump pushed the officials to “find” the uncounted votes. There was pending litigation on such alleged uncounted votes and the other call with Georgia Secretary of State Brad Raffensperger (and both legal teams) was a settlement discussion. The entire stated purpose of the challenges was to count what the Trump campaign alleged were uncounted votes that surpassed his 11,780 deficit. Trump put forward different theories of how many more votes were destroyed or not counted. He continued to return to the fact that they only needed to confirm 11,780 of those hundreds of thousands of allegedly uncounted ballots. Smith and others have suggested that “find” meant “invent.” It could also literally mean “find” in the conventional sense of a recount. Trump could have been saying that it would take little to change the outcome. The question is whether such different interpretations in what was akin to a settlement discussion of litigation can be the basis for criminal charges.
Notably, Smith did not indict on incitement or conspiracy to incitement, the basis of Trump’s second impeachment. The reason is obvious. There was no evidence produced in court or in Congress showing a direct effort to cause or support the violence. More importantly, Smith would have collided with the Brandenburg standard and a likely ruling against the charge.
Instead, Trump is charged with conspiracy to obstruct an official proceeding, 18 U.S.C. section 1512(k) and obstruction of and attempt to obstruct an official proceeding, 18 U.S.C. section 1512(c). Yet, the indictment (and Smith’s public comments) make it sound like he is being charged with incitement, including a section on how “The Defendant’s Exploitation of the Violence and Chaos at the Capitol.” So Smith evaded the direct application of Brandenburg standard but seeks to criminalize the same rhetoric under an obstruction theory. In this way, he hopes to use the rhetoric to trigger criminal penalties for the disruption but not the violence on that day.
Once again, these acts simply restate the speech as conduct. Yet, many have insisted that Smith is not threatening free speech because he is alleging crimes like obstruction. Yet, the obstruction is based on Trump’s political speech and how it encouraged or spurred others to take actions to slow or prevent certification.
Because Trump did not concede and continued to challenge the election, he is charged with seeking to obstruct the proceedings. Smith does not explain how we differentiate between election lies and criminal lies in such challenges. However, by charging Trump, he is creating precedent that could chill future campaigns from seeking judicial or congressional relief. If the early grounds for challenge are not proven, candidates could find themselves under criminal indictment, particularly by an administration of the opposing party.
The same is true with conspiracy to deprive persons of protected rights, 18 U.S.C. section 241. Every challenge to the results of an election threatens the outcome of an election. Marc Elias’ challenge in New York was entirely rejected, but that did not make it a conspiracy to deprive Republicans of their legitimately elected congressional representative.
Take the certification challenge. The indictment goes into detail that Vice President Pence lacked the legal authority to delay or send back the electoral votes. I wrote before, during, and after the certification fight that Pence did the only thing that he could do on certification. However, some like John Eastman maintained that it was still unsettled law. I disagreed with Eastman, but I am more concerned with the effort to criminalize such claims. (Eastman appears one of the uncharged co-conspirators). Trump politically supported the challenge, but individual members of Congress made their own decision on filing the challenge in Congress. (Those members are also not charged). Again, there is no limiting principle stated or implied in the indictment of when such political causes will be treated as criminal matters.
There have been civil penalties and disbarment actions for those who have filed challenges without sufficient support. Even those actions raise concerns over chilling public interest lawyers who may bring actions to challenge long-standing precedent. Yet, this indictment moves beyond those actions to criminalize the voicing of false election claims and failing to yield to the views of the majority.
Once again, these points are not made in defense of Trump’s claims. I criticized Trump’s January 6th speech while he was giving it, defended Vice President Pence on that day (and since), and called for Trump to be censored over his role on January 6th. However, despite a shared and virtually universal disgust with what occurred on that day, this indictment is chilling in its implications for free speech in my view. Simply saying that Smith is charging actual crimes caused by such speech does not eliminate those concerns.
While my views have not changed, these are issues upon which people of good faith can disagree. Yet, the sweeping dismissal of free speech concerns over this indictment has been surprising. I still fail to see the limiting principle within this case to maintain a bright line between permitted and prosecutable speech. Free speech requires such bright lines, particularly with regard to political speech. Without such clear notice and delineation, the government creates a chilling effect on those who wish to exercise their free speech rights. In my view, the chilling effect of this case (if successful) could be positively glacial.