The Speech-as-Conduct Theory: A Response on the Second Trump Indictment

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.

Threshold Observations

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.

Final Thoughts

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.

140 thoughts on “The Speech-as-Conduct Theory: A Response on the Second Trump Indictment”

  1. Darren,

    I was unable to reply to the post below. This is a top level post to the violation of the code of conduct MUST be in this post, it is NOT the child of some other offensive post.

    Do I have problems with the post ? Sure, Do I see a reason that left wing nuts posting things I do not liek should be censored ? NO!

    What is going on ?

    “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.”
    Oooohhh, John B. Say does not agree. He thinks everything is lawless except conservatives or libertarians are involved.

  2. Anonymous
    No I think that failure to follow the actual law is lawless.

    I have already explained this quite well.

    We near unbiversally get this the constitution does nto really exist garbage from those of you on the left.

    The recent indictment does not actually identify a crime but does try to criminalize political speech, regardless of your claimed legal support – there i no way that you can successfully prosecute Trump without opening up every politician to criminal prosecution for large portions of what they do and say.

    Democrats have been Universally blind to the idiotic consequences – to themselves of their efforts to game the system.
    How well did changing the rules in the Senate work for you. It got you a 6-3 conservative supreme court.

    Lets accept hypothetically that the Supreme court does not save you from your own stupidity and you actually manage to “get Trump” The legal basis for this indictment is so bad that the indictment itself is a violation of the law as
    Smith claims they law is. It is obviously election interferance. Smith has made false claims in the indictment.
    Should Trump ro some vindictive republican win in 2024 – Smith could himself be prosecuted.
    Anmd that is just ONE example. Biden lied to win an election – is there a difference between allegedly lying to persuade congress to refuse to certify and lying to voters to win an election ? Violate the same laws in the same way – if those laws mean what you claim they mean ? Nor does it stop[ there – Schumer’s efforts to intimidate the Supreme court regarding Dobbs fit the legal framework of the Smith indictment just as well as Trump. How are you going tpo meaninfully differentiate these ?

    Are you really going to try to tell BOTH the courts and the american people that Some angry political speech intended to alter our political and judicial processes is legal but others is not ? Please explain to me any basis for distinguishing all of these from Trump that does not stink to high heaven and smell arbritratry.

    What is and is not a Crime is NOT arbitrary – atleast not to most people. I know those of you on the left have no core principles. That truth is whatever you wish it to be at the moment. But most people understand that somethings are crimes – without having to read the law, and others are not.

    Again something you – and all to often the court do not understand. The law – as in the Rule of Law is NOT any law that can pass the legislature and be broadly interpretted by some prosecutor to go after those despised by the group in power.

    Most people recognize that a serious crime is something that is very harmful to us as a WHOLE – usually something VIOLENT, and not something that challenges one interest group.

    While I do not support the current effrorts of those on the left to gut our criminal laws in cities.
    Those on the left are Generally right that Some of our criminal laws have gone too far.
    As an example in my state shoplifting is a crime. First time slap on the wrist, 2nd time slap on the wrist, 3rd time – 2-5 years in state prison. Sorry the 50th conviction for shoplifting is not as serious as a violent crime.

    The right – often with the assistence of democrats has turned most petty crimes into capital offences practically – and that is WRONG. But the solution is NOT to refuse to prosecute minor offenses – we KNOW that leads to more major ones.

    Regardless my point is that our law is NOT arbitrary – that when those like you try to make it aribtrary for political reasons the consequences are BAD for all of us.

    With respect to MAL and the classified documents nonsense. While I am inarguably right – ultimately even that does not matter. One of the absolutely HUGE problems you have at MAL is that Trump was perfectly entitled based on prior caselaw to BELEIVE that what he did was legal and to BELIEVE that what The Biden administration did was NOT.

    The ACTUAL situation is worse – because JW v. NARA was NOT wrongly decided.
    But even if it was – which is something that ultimately must be proven to convict, you still have the MAJOR problem that Trump was entitled to rely on it.

    And that is ONE of atleast half a dozen insurmountable defenses.

    I am sorry – I am not with Turley or Barr or anyone else – the MAL classified documents case is GARBAGE.
    To win it you would have to prove that Obama and Clinton are criminals too.

    Nor does that address the Constitutional problems – one of the huge problems with the prior 11th cir appeals decision is that the absolutely got one major point WRONG. Presidents ARE constitutionally different regarding EVERYTHING having anything to do with national security.. You can not get arround that constitutionally – and you can not actually get arround it as a practical matter. Because if you changed the constitution to disempower the president with regard to national security
    you would have an unworkable system.

    Ypu want to make everything about Trump.

    The problem is that your “Get Trump” efforts to bend the law and constitution into a pretzel have consequences – not just for Trump – but for EVERYONE.

    I would further note that should you manage to convict Trump – Biden will have to pardon himself for mishandling classified documents on the way out the door – or the next Republican AG will trivially be able to jail him for the rest of his life.

    Vice presidents are NOT constitutionally different. Nor are they practically different. Constitutionally the Vice President is pretty much impotent. – until something happens to the president. They have almost no independent constiotutional power – except presiding over the senate.

    The CLAIM that Biden did the right thing and cooperated is both false and irrelevant.
    When someone actually violates the law – and there is absolutely no doubt VP Biden violated the espionage act.
    Cooperation is a mitagating factor in sentencing, it does not change whether a crime was committed and it does not change whether you should be prosecuted. There is not actual crime of stubbornness. Nor is there a provision of any law that after committing the crime chosing to cooperate restores your innocence. I would further note that in reality nearly every defence attorny on the planet will tell you the same thing – cooperating is likely to get ino in far deeper than getting a lawyer and stonewalling.

    All that ignores the problem that Biden did NOT cooperate., We have subsequently found out that the Classified documents in the Biden center were found in March long before the election,. Long before the Trump indictment. DOJ and NARA were not notified until just before the election.

    But keep it up – keep this garbage that there is one law for Trump and another for Biden and democrats.

    Most republicans are not stupid. They understand – and Trump makes political hay repeating it, that your not just coming for Trump, your coming for them. If you protest against abortion – Democrats will throw you in jail if they can.
    Regardless they will sic the FBI and the IRS on you.
    If you are catholic – you will be spied on – and not allowed to adopt.
    If you speak out about your kids being politically and sexually indoctrinated in school – or worse yet raped by a purportedly trans teen – you will be labeled a domestic terrorist investigated and prosecuted.

    Democrats have made clear that they are not targeting just Trump. They are targeting everyone who disagrees with them politically.

    Most of us understand that if you can read the law broadly to go after trump – you can do so to go after anyone.
    And those who do not grasp that – are learning as you target them.

    The Trump cases are not about Trump.
    They are about can left wing nut democrats get away with broad interpretations of the law to target political enemies.
    Trump is just the target of the moment.

  3. “The constitution forbade Pence to do what trump wanted him to do. ”
    Please cite the text where the constitution forbade Pence from doing what you claim Trump wanted ?

    The constitution is the ONLY constraint on congresses certification of the election – and even that is weak, as there is nothing about the process by which congress choses to certify an election that the courts are likely to touch with a ten foot pole.

    Just as no court is going to bithc slap congress for failing to conform impeachment to the “high crimes and misdemenaors” constitutional constraint.

    No law that congress passes constraining the prosess by which a future congress conducts the tasks the constitution delegates to congress is constitutional. We have myriads of examples of the courts striking down Congressional attempts to restrain itself in the future. Absent amending the constitution – it CAN NOT.
    The entire election procedures act – both the new one and the old one are unconstitutional.
    Bujt no court is ever going to say that – because no court is going to take a case challenging congress following it or NOT following it.

    The VP is free to do anything in the certification of an election that congress allows him to do.
    ANYTHING. There is virtually nothing he can try that is illegal or unconstitutional – short of bribery or extortion.
    At the same time – just because he can try anything does not mean he will be allowed to get away with it.

    The only Flaw in the Eastman brief is NOT the law or the constitution, it is the requirement that congress go along.
    That was ALWAYS the reason Eastman’s plan would not work. And it is the only reason.

    I do not understand why this is so hard for you left wing nuts to understand.

    In 2016 if between the election in November and certification in January it had ACTUALLY been found that Trump colluded with Russia or even if it was Found that he did not but that voters really were deceived by Russian propoganda.
    It would have been within congresses power to refuse to certify the election.
    That is a draconian move that congress should reserve only for the most extraordinary circumstances.
    But it is fully within congresses constitutional powers.

    Congress has the final voice on all presidential elections and that voice is NOT purely cerimonial.
    And that alone makes this entire case a fraud on the courts.

  4. Sir, you bring up many Excellent points. YET, I beg to differ with you – as I have earlier – with the greatest respect – on one of your ‘master’ points on which you base some of your arguments, namely, that You Do Not Know – indeed, neither you nor I know – For Sure that Trump was wrong on his ABSOLUTE CERTAIN BELIEF & CLAIM that the election was stolen…..!!! ..just because some election official, or State official, or Judge, et al ‘certified’ the results Does Not Mean that they were accurate. Everyone is trusting the opinion of everyone else in the chain. Meanwhile None of these people are IT experts and could research themselves what happened to the DATA inside the computers, i.e., via the computers, which were online 24/7. And, also, many anomalies with the votes submitted themselves, reports of: misread by the computer software ballots, missing ballots, hidden ballots, duplicate ballots, stolen ballots, trucked in out of nowhere ballots, etc., etc…were simply swept under the rug. Finally, why doesn’t Jack Smith go after Al Gore while he’s at it… Let’s get Real, Sir.

    1. eighteenthhole: you try to minimize the people in each state and at each polling locations as “some election official, or State official or Judge” who says the results are accurate, and that if you don’t like how the election turned out, you don’t have to take their word for it. To begin with, Trump was never going to win–every poll said so and he set a record for low approval ratings. The country was in shambles, all due to his incompetence. We didn’t want him in 2016, either, but he got in with the help of his Russian friends. It is ludicrious to even think he could have won in 2020.

      Don’t you think that people who run elections KNOW how their machines work and whether they can be hacked or manipulated? Haven’t you paid attention to the Dominion Voting Systems lawsuit against Fox and others, in which Fox spread the lie that vote totals could be manipulated remotely–something that is utterly false, and which resulted in a multi-million dollar payout from Fox? You speak of vote-counting machines as if they are “computers”–but they are, to my knowledge, just “scanners” that read data on paper ballots in almost every siutation. These “scanners” work just like machines that score tests, like the SAT–they “read” and record what is on the paper and nothing more. If there is a question about inaccuracy, or if the readers malfunction, hey can put the ballots through other scanners. At every polling place I’ve ever seen, there are both Republican and Democrats checking IDs, making sure that people put their paper ballots into a secure tub or other device, and both parties transfer the paper ballots and printouts from the scanners to a secure location. Chris Krebs, Head of US Cybersecurity, verified that 2020 was the most-secure ever. Don’t you think there are checks and balances in these systems? WHY, other than the massive ego of Donald J. Trump, would you believe that there were any shenanigans involved in 2020? And all of the BS about “any anomalies with the votes submitted themselves, reports of: misread by the computer software ballots, missing ballots, hidden ballots, duplicate ballots, stolen ballots, trucked in out of nowhere ballots, etc., etc…were simply swept under the rug” is just so much malarkey. One such example is the attacks on Ruby Freeman and her daughter, Shay Moss, volunteers in Georgia, whom Trump falsely accused of bringing in “suitcases” full of Biden ballots. These “suitcases” were proven to be official ballot containers from various precincts. Did Trump ever admit this or apologize for his lie? Both women, who testified to the J6 Committee, told of death threats and harassment because of Trump’s lie.

      Because voting involves human activities, there could be errors, but nothing significant enough to have changed the outcome of the election. Paper ballots have unique identifiers on them–there can be no duplication–so, if someone cast an absentee ballot or early ballot and then tried to vote on election day, the later-filed ballot is automatically disqualified. What are “missing” and “hidden” ballots? Where’s there anything like proof for the claim of “stolen” or “trucked in our of nowhere ballots”? When there are both Republican and Democratic election officials at the ballot tabulating sites, this can’t happen. There’s no proof of any of this–which is why over 60 lawsuits brought by Trump’s campaign failed–each and every judge asked for proof of these wild allegations and Giuliani couldn’t come up with any. He admitted that he filed the lawsuits hoping to prove these things. That’s not how our legal system works.

      More importantly, there has never before in our history a losing candidate who has gone to great lengths to try to convice Americans that our voting systems are not secure and have been manipulated, that election officials are not trustworthy, or that there is any basis for believing that there was massive fraud. And, there would have to be MASSIVE fraud for Biden to have cheated his way into office–MASSIVE fraud in multiple swing states–false ballots in each and every state. Don’t you think there were safeguards in place in these swing states that would have prevented this, including Republican election officials? There were recounts and re-recounts in swing states–no fraud was shown. There were even audits, and Trump commmissioned 2 separate studies to try to prove he really won–they fizzled because he lost, but people like you still believe him. There’s no proof of massive fraud that could have changed the election–so why do you like to believe such lies?

      1. ..Dear Gigi.. a great deal of ‘Proof’ was either ignored or swept under the rug.. and your well worn tactic of dancing around that, jumping up & down about what a boogeyman Trump is is only a distraction… Congratulations, you have earned a big gold star for being a worthy classmate of Schiff & Goldman in the MSNBC-ABC-ET AL School of Fake News. Your hyperbole, parroting and and alignment with that school of Trump Bashers misses the finer points, for example, of why FOX settled with Dominion.. which really had nothing to do with evidence or proof.. the case never got that far, as you would know if you were truly plugged in.

  5. I am surprised that the separate First Amendment right to petition the government for the redress of grievances has not arisen. This more explicitly than the speech clause captures the government’s obligation to sort out disputes. It seems hard to cast one side in a dispute as a “fraud on the government” when government’s duty is to hear the griievance and accept or reject it.

    1. John, I had the same exact thoughts. Jan 6th was always about more than ‘free speech’. As I watched coverage of that day’s events I specifically said, “Maybe, just maybe, The People’s election grievances will be addressed now that Congress sees so many citizens standing, literally, at the gate demanding to be heard. We’ve tried petitioning the government for a fair an impartial hearing but were not only ignored, but their ‘side’ fought tooth and nail to prevent every attempt to investigate every grievance. Then all hell broke lose and I immediately thought: “Well, so much for that.” The point being, the political class is more than just out of touch with the common citizen, it’s completely lost it’s constitutional mandate they are there to serve us, not the other way around.

  6. Jack Smith and the Department of Justice snuck DC jury members illegally into the Florida grand jury, in order to get the Florida indictment against Trump, it has been revealed.

  7. Reuters Poll
    73% of americans say the economy is worse off compared to 5 years ago.

    This means—-10 percent of americans are either corporate elitists or voluntarily out of the workforce who benefitted from the $6T giveaways. The other 17 percent are friends of ATS, Dennis, and Gigi

    Bidens approval rating is 38%. Remember, this is the pedophile who laughed and scoffed at Trump’s 42%.

    Among Independents, Briben’s DISApproval is at 60%

    This means—-that 40% of those who claim to be independents, are hard left democrats LMAO
    Cmon, ATS, Dennis, Gigi, you 3 identify as independents, dont you??! LMAO

  8. Who is this Michael Beschloss?? What a joke. I just heard him claim that Osama Bin Laden (whom he was comparing trump to), “hated our democracy, and tried to destroy it on 9/11/2001.

    For real dude…that was Bin Laden’s goal?

    This guy is supposed to be a historian? He sounds like a dumpster diving wine-o. Or ATS, Dennis, or Gigi.

  9. Democrats cant help themselves. They hate the US Constitution but especially the First Amendment. They live to censor everyone due to their implicit bias against free thought and free speech.

    A Challenge to Racial Politics in Medicine: Doctors sue to stop a California requirement to teach ‘implicit bias.’

    Iranian-born opthalmologist Azadeh Khatibi and anesthesiologist Marilyn Singleton are challenging this California mandate. The doctors say the implicit-bias training isn’t relevant to the medical topics the doctors cover in their continuing-education classes, and that disparities in care can’t be attributed to implicit bias.

    The lawsuit (Khatibi v. Lawson), brought with the medical group Do No Harm and the Pacific Legal Foundation, says the implicit-bias mandate amounts to compelled speech, violating the First Amendment right of the teachers. California “cannot condition a speaker’s ability to offer courses for credit on the requirement that she espouse the government’s favored view on a controversial topic,” the lawsuit says. ….California’s medical-education mandate is about compelling teachers to enforce a political message that doctors are racist no matter what they think or do.

  10. “So, the lunatics have taken charge of the asylum.”

    – Richard A. Rowland



    The Supreme Court must act to strike down the perverse and unconstitutional acts of the Biden executive branch, in order to support the Constitution and to save the American restricted-vote republic which is in dire jeopardy.

    The only licit and constitutional requirement for Judicial Review is the completion of an act of the legislative branch or the completion of an act of the executive branch – the passage of legislation or the execution of an act.

    The persecution of President Donald J. Trump and biased interference in the 2024 presidential election, through the illicit, insidious and malicious juridical acts of the executive branch, are illegal and unconstitutional, and must be struck down by immediate Judicial Review.

    The doctrine of Judicial Review applies to State and Local governmental levels, including the Office of the New York County District Attorney.

    The Power of Judicial Review

    The Supreme Court can strike down any law or other action by the legislative or executive branch that violates the Constitution. This power of judicial review applies to federal, state, and local legislative and executive actions. The Constitution does not specifically provide for the power of judicial review. It arises instead from an 1803 decision known as Marbury v. Madison.

    – Justia

    Judicial Review – Key takeaways

    The definition of judicial review is the power of the courts to determine if an act of Congress or the Executive is constitutional. The court may strike down a law or an executive action that is not in accord with the U.S. Constitution.

    The United States government is a system of checks and balances and separation of powers. The Judicial Branch is an independent branch of government with the power to check the legislative and executive branches through the powerful judicial practice of judicial review.

    – Vaia

    Judicial Restraint

    On one side are those who favor a strict constructionist approach that emphasizes judicial restraint. Strict constructionists believe that judges should not create policy and instead only judge limiting themselves to applying rules clearly stated in the Constitution. This approach to decision-making limits policymaking decisions by judges, instead relying on precedent and legislatures.

    Judicial Activism

    On the other side are those who advocate for judicial activism: the belief that the Constitution is a living document and that judges should be free to make policy and alleviate needs and correct instances of discrimination that are ignored in the political process.

    – Vaia

  11. If my memory serves right, the cases trying to dispute this rigged election were dismissed for the reason of locus standi or “lack of standing”.. they never got the opportunity to present ther case in court.

      1. 2020 must have been nullified due to FBI collusion and interference.

        2020 must have been nullified due to State violations of State constitutional election requirements and restrictions.

  12. Jonathan: This is your second column today trying to counter the prevailing opinion among legal experts that the second criminal indictment of DJT is not about “free speech”. Even Bill Barr, your “close friend”, thinks your claim is “BS”. The case is not about all of DJT’s false claims the election was “stolen”, not about even his speech at the Ellipse nor his legal changes to the results of the 2020 election. It’s about his “Plan B”–the conspiracy to stop the electoral college vote and to put up fake electors–to obstruct what the Constitution demands so DJT could remain in power.

    You still seem confused as to why Jack Smith did not charge DJT with “seditious conspiracy”. Most legal experts say the answer is simple. Charging DJT on that additional count would have raised “free speech” issues related to his speech at the Ellipse on Jan. 6. Jack Smith wanted to avoid that extraneous issue. It was a brilliant strategic move. That’s why DJT is the only defendant. Smith could have charged literally hundreds of others–the false electors, MAGA members of Congress and others involved in the conspiracy–even Ginni Thomas. But that would have bogged down the process by including many other defendants and probably pushed off a trial until after them election next year. Smith wants a speedy trial. So does Judge Chutkan because both want to know whether the leading candidate for the GOP nomination is guilty or innocent of the charges. The American voters are also entitled to know.

    On the issue of the fake electors you Q “whether Trump can be charged for encouraging or facilitating such efforts by third parties”. He sure can because while the wild illegal scheme was cooked up by John Eastman and others, Trump approved the plan and helped implement it. He was a central player in trying to overturn the legitimate results of the election with the fake electors.

    When the jury gets the case early next year they won’t have to get into the “Mind of Donald Trump” (see your other column today). You obviously know about the “willful ignorance doctrine”. It provides a jury may find a defendant possessed the
    requisite intent to violate the law if he willfully ignored the relevant facts. DJT knew he lost the election. He was told so by his WH Counsel, his AG and campaign advisors he lost the election. DJT willfully ignored the relevant facts and chose to go along with John Eastman’s illegal scheme. No doubt Judge Chutkan will give the “willful ignorance” instruction to the jury.

    I think this whole case can be summarized in the following analogy. You go into a bank and demand the teller give you money. She refuses. You leave the bank but come back later with a gun, point it at the teller, and demand: “Give me my money!”. The first encounter is protected speech. The second time you go into the bank with the gun you have violated the law! This column and the other shows you still don’t know the difference! Maybe one of the students in your law classes can explain it to you.

    1. About as specious an argument as I can imagine. Nothing about Trump’s behavior was illegal in any way. Challenging an election, creating alternate slates of electors, lobbying the Vice President to use a power that he did in fact have (Thomas Jefferson used it). None of this breaks any kind of law. If what you’re saying is true, actions to challenge an election are ‘interfering with an official proceeding’. Standing outside the courthouse protesting a trial, since it might influence the trial is illegal on the same grounds. Even the way you make your case elides any real mention of any particular law.

      1. “What caliber was the gun that Trump used??”

        Clearly, Tom, you don’t grasp how this works.

        The Left concocts a “creative” analogy. You, as one of the unwashed masses, bow silently in agreement.

        I see in your future some quality time at a re-education camp, or a DEI seminar.

        1. No Sam, what is clear is that you didn’t understand the point of my post, which was that the analogy was anything but.

    2. Dennis – the fact that you are arguing – quite falsely – Prevailing legal opinion – makes CLEAR that you are WRONG – as are those you are calling “the prevailing legal opinion”.

      Barr is WRONG. He was AG – his job was to clean this kind of garbage out of DOJ and FBI – he failed.
      He is only Marginally better than Garland or Smith.

      We have Rarely seen this before in US history – and we look back on those occasions with disgust.

      The Great John Adam’s reluctantly signed the sedition act and that remains a stain on the character of an otherwise great man.

      Wilson’s persecution of Eugene Debbs was not made any less foul by Debb’s extreme and dangeorus views.

      The MacCarthy era in which congress leveraged hollywood and others to target communists – who naive or otherwise can RIGHTLY be viewed as an inherently dangerous ideology is still WRONG.

      The FBI targeting of actual communist groups as well as civil rights groups and other groups on the left was WRONG.

      We did not indict Al Gore for challenging the 2000 election. We did not try to claim that those like Bios, and Derschowitz and Tribe who represented Gore were criminals because they lost. Many of who still to this day claim Gore was cheated.

      As Turley noted – there are many many times in US history where elections have been challenged – right up to the halls of Congress and more than once that such challenges were successful. And the overwhelmining majority of those challenges were by democrats.

      This is not the first time that laternate slates of electors were put forward. And had Trump prevailed in Congress it would not be the first time that happened either. This is not even the first time in the 21st century that a candidate has claimed an election was stolen and fougth it right up through challenges in congress – and again – always democrats.

      Of course this is about speech and NOTHING ELSE. Even the stupid arguments YOU, and your alleged scholars are making, are about as anti-free speech and anti core american values as is possible.

      That you disagree with Trump’s claims regarding the 2020 elections – claims that like most of what Trump has said over the past 6 years have PROVEN true – is the PROOF this is an unconstitutional violation of free speech.

      We are now well past proving the FACT that the 2020 election was Rigged and stolen.
      That the Biden campaign and democrats conspiring with social media and the media engaged in political censorship is election fraud though unfortunately not a crime.
      It still absolutely justified for Trump to call the election a fraud JUST based on that. It is absolutely Justified for Trump to take that challenge straight through to congress just based on that. The congressional certification of an election is NOT ceremonial – nothing in the constitution is ceremonial. Congress is perfectly free to reject the results of an election that was conducted perfectly legally but thoroughly immorally.
      In 2016 Hillary FALSELY claimed that Putin – through social media influenced the election such that Trump won.
      That was ludicrously stupid at the time. But lets presume that it was True, lets presume that somehow Putin did influence U voters to vote for Trump and that this occured without the Trump campaign violating any laws, without any activity beyond persuasion on the internet. Must Congress in the face of proof that Trump voters were deceived and influenced by A foreign despot certify that election ? Of course not. Congress is constitutionally free to excercise any of its responsibilities however it pleases. Congress is answerable only to the people for its official acts. Even the ranting of various legal experts about how this allegedly violated prior election procedures law, or Democrats recent changes to that law – all that is legal GARBAGE.

      As the constitution makes clear and courts have repeatedly upheld congress can constitutionally conduct its business however it D@M well pleases. Each congress makes its own rules and it is not bound by the rules or even the law passed by prior congresses. If you do not like that – Change the constitution. If you think I am wrong – find ANY instance in which the courts have EVER intervened in congresses determinations of its own rules for conducting its own responsibilities.

      Turley and many many others – including myself have argued repeatedly that the constitution did not grant congress the power to impeach Trump on the purely political basis in which they did.

      While Congress inarguably erred and inarguably violated the constitution – ultimately WE were wrong.
      Not in what the constitution said – the constitution is perfectly clear on the grounds for impeachment and those were not met.
      We were wrong for one simple reason – because the constitution does not provide judicial or other oversight on how Congress conducts its own affairs. The courts can rule a law unconstitutional. But it can not undo an impeachment no matter how unconstitutional it is done.

      Nor for exactly the same reason can the courts intervene in the process by which the congress certifies or not an election.

      Put more simply Pence was DEAD WRONG and Eastman (and Tribe before him) perfectly correct. The process by which the current congress certifies (or not) an election is completely up to that congress – while Pence is not ALONE free to do as he pleased, he is free to do anything congress allows him to do. And Trump is free to plot – if that is what you wish to call it, to persuade congress to do otherwise.

      I would further note – that almost no one was arrested and no one was prosecuted for the actual crimes involved in the Kavanaugh desecration of the Capitol – which was in no way different from January 6th EXCEPT that it was an actual PLANNED effort to interfere with the senate confirming Kavanaugh. None of the democrats who participated or expressed support for or helped spread defamation of Kavanaguh were subject to investigation much less prosecution.

      Schumers efforts to intimidated the Supreme court regarding the Dobbs decision did not result in Schumer being prosecuted – and that was conducted OUTSIDE that congress and outside of congresses actual duties

      We have not previously done what Biden, Garland and Smith as seeking to do because it is WRONG.

      But you are correct this is about more than free speech. What you are doing is WRONG because it is the most protected form of speech in this country. It is also WRONG because it is crystal clear that there is absolutely no crime involved.

      When you are trying to pretend that something that has happened repeatedly before in one form or another – including almsot exactly the same over 100 years ago, is magically this time and only this time a crime.

      It is YOU that is corrupt, it is YOU that is immoral. it is YOU that is lawless.

    3. One of the most fundimental errors that you and your alleged scholars make is failing to grasp the OBVIOUS reasons this is NOT a crime.

      While Many of us perfectlyu legitimatelyu beleive that numerous forms of Ballot Fraud occured in the 2020 election.
      Stuffing ballot boxes is not the only form of election fraud.
      As I have pointed out in many posts here – the successful Efforts of the DOJ/DHS/FBI to Censor specifically the Hunter Biden story but more generally most anything vaguely election related was ELECTION FRAUD.
      Further it was Criminal election fraud that had we be able to prove at the time – the courts could have chosen to remedy.
      Or congress could have.

      Beyond that – democrats generally and the Biden campaign specifically participated in that effort to censor the truth
      That too is election fraud – though only Congress would have the power to remedy that Fraud should it chose.

      Beyond Biden and Democrats lied Profusely to win the election. We do not like that candidates for public office lie to get elected, and we frequently punish them at the ballot box should they be caught prior to the election.
      But we have no criminal remedy for lying to get elected.

      Let me repeat that again – Biden can not be charged with a crime for lying to win the 2020 election.
      Just as Trump can not be charged for what you believe (falsely) were lies to overturn an election that is the consequence of those lies.

      Lying to win an election is election fraud. It is immoral even though it happens all the time. It is not however illegal.
      It is not illegal to win an election. It is not illegal to overturn an election – won legitimately or by fraud.

      As many better legal scholars than yours have noted – the potential consequences of this prosecution RADICALLY alter elections.

      You will find it impossible to prove that Trump lied – because the 2020 election WAS stolen.
      But presuming that you could – why isn’t Biden’s lies to win the election EXACTLY the same crime ?
      Every single statute that Smith cites can be applied in exactly the same way to prosecute Biden.
      He told voters that he had no knowledge or involvement in Hunters business deals – that was a LIE and he knew it.
      He told voters these claims were russian disinformation – that was a lie and he knew it.
      These lies delprived the same people of their civil rights in the same way, These lies interfered in the same way with the same and MORE official procedings. Biden’s lies distorted the proceeding called the election itself.

      Give me a half and hour and the democrats broad interpretation of the law and I can find atleast another 10 laws that Biden lying violated – if we are going to read the law this broadly.

      There is no end to the ability to target political enemies unless this nonsense is SHUTDOWN.

      You claim this is somehow more than a free speech issue. The approach you are trying to sell would massively criminalize huge swaths ot existing political speech – Of course it is a free speech matter.

      Further your and your experts claims to some exception do not have any meaningful limits. All political speech that potentially alters the outcome of an election, and all speech challenging an election after the fact would be criminalized.

      As is typical – those of you on the left NEVER consider the follow on effects of your acts or arguments.

      With respect to Bill Barr – my question would be that if Trump’s conduct is criminal – then Why didn’t he prosecute Biden in 2020 for his lies that won the election ? Barr may not have known that the FBI/DOJ/DHS were working to censor the truth to rig the election.
      But he KNEW that Biden was lying that this was not russian disinformation. He KNEW that the was during the election a credible criminal investigation of the Biden’s. and that Joe Biden was lying about it.

      AG Barr did NOTHING about this. Barr did nothing because lying to win an election is immoral, it is corrupt, it is fraud, but it is also protected free speech. It violates all the same laws that Smith cited in pretty much exactly the same way – but it is STILL protected free speech.

      While I am sure that left wing nut scholars will posit some argument that boils down to – these are not EXACTLY the same
      That rotating left twice before lying is somehow different from rotating right once.

      That just further proves the ethical and morel corruption of the legal scholars – as well as Garland, and Smith.

      Criminality sometimes hinges on details – but NEVER inconsequential details that make no substantial difference.

      The difference between murder and self defense is a DETAIL like the victim pointed a gun at the defendant.
      It is NOT a detail like the victim wore a blue shirt rather than a red on.

      A detail that determines whether something is or is not a crime is a detail that has CLEAR MORAL significance.
      It is a detail that clearly makes the difference between whether something is right or wrong.

      I have not heard the specifics of the claims of your alleged scholars – I do not need to.
      There is no detail that can bear the weight of changing the Political speech and conduct here from Right to wrong.

      Further those like you KNOW that and you have been open about that all along.
      You demanded that Trump be prosecuted – from the start. You demanded his prosecution and his impeachment based on the very little that you know that has NEVER met the threshold to get past protected free speech.

      You do not support this prosecution becuase Smith uncovered new evidence – he did not.
      You do not support this prosecution because you have reluctantly been persuaded that Trump crossed a lone (one you can not identify) between protected speech and crime. You have sought to prosecute Trump for ANYTHING for all of the past 6 years. You have finally found your Levanti Beria – “show me the man and I will show you the crime”.

      And that makes YOU and Smith and Garland, and every legal scholar you claim supports you “the bad guys”.

      Because one of the differences between those who are moral and those who are not is hypocrisy regarding the law.

    4. Dennis,

      I have been recently challenging Darren regarding censorship on this blog.

      You posts are WRONG, they are Immoral, but they are also protected free speech,
      And if necescary I will stand up for your right to say stupid, wrong things, even to spread lies which you do constantly.

      Yet, you are entirely oblivious to the FACT that If Donald Trump’s claims that the Election was stolen are not protected speech and if his discussions with others – more speech as to how to remedy that fraud are not protected free speech,
      then neither is your speech.

      As I have noted – you have been WRONG repeatedly about all kinds of things. You have Repeated blatantly wrong things Long after it was absolutely obvious that you were Wrong. Whether it is about the collusion delusion or Covid or political censorship or the Biden laptop or Joe Biden’s active participation in Hunters influence peddling – you have been WRONG and you have been WRONG well past the point at which you Claim Trump was obligated to accept that you were WRONG.

      By YOUR definition that is LYING.
      And by YOUR definition because those lies potentially deprived others of their civil rights – you are a criminal.

      There are now roughly a dozen studies that have found there is virtually no spread of covid from school students to other students or to adult teachers. Many of these are peer reviewed. Some of these were available as early as summer 2020.

      There is zero doubt that there was MASSIVE harm as a result of keeping kids from School.
      There is also zero doubt there was no benefit to doing so – yet you supported that, and those who foist that on us.
      You voted for those who did that.
      You are culpable for the results.

      That is just ONE example. I can come up with dozens more.

      If Trump is a criminal for claiming the 2020 election was stolen and attemping to get Congreess to refuse to certify – something they inarguably had the power to do.

      Why are you not guilty for damkaging the future prospects of an entire generation of kids – especially the poor ones.

      You KNEW or should have known you were WRONG. You were TOLD. You aided and abetted those who did the actual harm.

      Your right to free speech depends on those like me who are prepared to defend your right to be wrong – which you are CONSTANTLY.

      But you are so morally bankrupt you do not extent the same right to others.

  13. 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? According to the Trump indictment, Marc Elias, a Democratic mouthpiece, says that there was a problem with Dominion voting machines there was no crime committed. When Trump says that there was a problem with Dominion voting machines it’s time to get a rope. They won’t stop until the witch is dead.

  14. You have stated that you were critical of Trump’s J-6 speech and supportive of Pence’s actions that day. Given that, how is the speech of the Commander in Chief and President of all of “us” on the ellipse not the equivalent of shouting “fire” in a theater, which you know to be un-protected as free speech? Certainly, the stampede that followed exhibits the parallels. Would love to hear your answer. Maybe in Columbus, Ohio, on Sept 14…

    1. Steve Mowery, Kamala Harris said the BLM riots should continue. Where were you then when the real fires were burning?

    2. Steve, yelling fire in a theater is not illegal per se. You seem to be following Shenck instead of Abrams and later Brandenberg v Ohio.

    3. You have got to be joking.

      The failure of Trump’s team to successfully prove their allegations in court neither proves those allegations untrue, nor does it convey any assurance other violations did not occur. As we saw in the video from the Arizona election in 2022, there is undeniable proof that signature verification was being performed superficially, if at all – and mathematical analysis shows that that doubtless was repeated in many States where the rejection rate “miraculously” dropped to near zero percent in 2020. Can’t happen legitimately. Combined with ballot harvesting, that alone in select counties could quite readily be responsible for changing the election’s outcome in a year of record mail-in and (illegal) drop off ballots.

      But that’s only half of it. Multiple polls give us statistical proof that just one of many acts of illegal conspiracy between our Federal agencies and medial did in fact change the Presidential election outcome. The suppression of the facts Hunter Biden laptop, which those polled specifically showed would have changed the votes of well over half of Democrats (either to abstain from voting, or to vote for Trump). That single act of election interference (FRAUD) changed the outcome.

      Finally, the true elephant in the room is Article IV Section 4, the only place in our Constitution where the word “guarantee” is used. Why? Because elections are the sole source of legitimacy of our government, and therefore must bear a different standard of proof (the States must provide proof the elections were legitimate – proof which does not exist for the 2020 election). They failed in this guarantee, and thus our government is currently illegitimate.

      Although it might be reasonable to argue the degree to which any particular tactic impacted the result, no sane person can still maintain the election was legitimate, nor that this is a legitimate administration.

    4. You have stated that you were critical of Trump’s J-6 speech and supportive of Pence’s actions that day. Given that, how is the speech of the Commander in Chief and President of all of “us” on the ellipse not the equivalent of shouting “fire” in a theater, which you know to be un-protected as free speech?
      “Fire in a crowded theater” is not the law of the land and Oliver Wendell Holmes (who used it in dicta in U.S. v. Schenck ) disavowed it in Abrams vs. United States.

      1. This response doesn’t really apply to Steve’s question. As you intentionally left out, the Brandenburg standard requires the speech to be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

        This could easily apply to provoking a riot on the steps of the Capitol. I personally think the evidentiary bar here may be too difficult to surmount in this particular situation, but Steve’s question is still a reasonable one. Provided there was evidence to show that it was – indeed – Trump’s intent to use the mob to obstruct an official proceeding of Congress, then why would Turley not think Brandenburg applies?

        Three elements are needed: intent, imminence, and likelihood.

        For the purposes here, we are assuming Intent.

        Imminence (i.e., “imminent lawless action”): This area is not well discussed in the current literature. But generally, it is understood to mean “in the near future ” and “within a very limited timeframe.” I don’t think there is much of question as to whether imminence is met here, given the ongoing congressional proceeding was the focus of Trump’s speech.

        Therefore, the only issue Trump could have would be “likelihood” (“and is likely to incite or produce such action”). Likelihood depends on a contextual approach that accounts not only for the words used, but also the surrounding context in which those words are uttered. The medium through which the message is conveyed is important, as is the audience to whom it is addressed and other related messages. This is why – based on the actual First Amendment jurisprudence – that the throwaway use of “peacefully” is less important than the fact that – by that point in the speech – the crowd had already reached critical mass, and the Rubicon was crossed.

        Again, I think the mens rea element – intent – is the hardest part of the test here, not the addition of “peacefully.” If Trump knew they crowd would storm the Capitol regardless of any de-escalation language following his fiery oratory, then that would be sufficient.

    5. “how is the speech of the Commander in Chief and President of all of “us” on the ellipse not the equivalent of shouting “fire” in a theater, which you know to be un-protected as free speech?”

      Another straw man. Not equivalent in any way whatsoever. Political speech has always been the most protected speech. If not, I could name about 20 prominent democrats off the top of my head who would be in jail. Chucky Shumer forst and foremost.

  15. This most recent indictment is another convoluted elongation of the law. Indeed, it will require relitigating the election.
    Why? Because at least 50MM people agree (along with Trump and NYT writer Molly Ball) that the 2020 election was fraudulent because of the “cabal” and “conspiracy” of collusion between DNC, technocrats, and corporate oligarchs to:
    – spend billions to change voting laws (many unconstitutionally)
    – send out ballots to known inaccurate voter rolls (180k removed from PA’s rolls alone just this month)
    – censor facts and create disinformation (ie Biden laptop and the lying 51 security signers),
    – DNC efforts that “fended off voter-suppression lawsuits, recruited armies of poll workers and got millions of people to vote by mail for the first time” detailed by Ms. Ball.

    You could get a few million people to get up on the stand and recount these efforts of election interference creating layers of fraud and bringing into question whether the election was legitimate … or whether we were forced to submit to the distortions the DNC and our politocrats and technocrats created.

    1. Absolutely true.

      The failure of Trump’s team to successfully prove their allegations in court neither proves those allegations untrue, nor does it convey any assurance other violations did not occur. As we saw in the video from the Arizona election in 2022, there is undeniable proof that signature verification was being performed superficially, if at all – and mathematical analysis shows that that doubtless was repeated in many States where the rejection rate “miraculously” dropped to near zero percent in 2020. Can’t happen legitimately. Combined with ballot harvesting, that alone in select counties could quite readily be responsible for changing the election’s outcome in a year of record mail-in and (illegal) drop off ballots.

      But that’s only half of it. Multiple polls give us statistical proof that just one of many acts of illegal conspiracy between our Federal agencies and medial did in fact change the Presidential election outcome. The suppression of the facts Hunter Biden laptop, which those polled specifically showed would have changed the votes of well over half of Democrats (either to abstain from voting, or to vote for Trump). That single act of election interference (FRAUD) changed the outcome.

      Finally, the true elephant in the room is Article IV Section 4, the only place in our Constitution where the word “guarantee” is used. Why? Because elections are the sole source of legitimacy of our government, and therefore must bear a different standard of proof (the States must provide proof the elections were legitimate – proof which does not exist for the 2020 election). They failed in this guarantee, and thus our government is currently illegitimate.

      Although it might be reasonable to argue the degree to which any particular tactic impacted the result, no sane person can still maintain the election was legitimate, nor that this is a legitimate administration.

      1. Excellent post.

        One Quibble – which Turley slips into periodically.

        First – congratulations that unlike Turley you grasp that the 2020 election was rigged. and that has been ABSOLUTELY Proven beyond any doubt.

        While we do not have the same completely undeniable proof of other Claims of election fraud it is quite reasonable to beleifve that those who would engage in one form of fraud would engage in others.

        Falsus in unum falsus in omnibus.

        I would also note that everything that can be called election fraud does not have a criminal or judicial remedy.
        Even ignoring the Government censorship in 2020.

        There is very good reason to beleive that voters would have punished Joe Biden for :Lying to voters to win an election.
        That too is election fraud. it is NOT subjeect to remedy by the courts. it is not illegal. Though it is still election fraud and immoral and wrong. Something that should be noted regarding the rest of Biden’s conduct.
        It is pretty much beyond any doubt now that Joe Biden is Criminally corrupt. We are well past the hard to get past McDonald standard. But lets presume that we feel short of proving criminal corruption on the part of Joe Biden. The standard for electing a president is NOT proof beyond a reasonable doubt. Nor is the standard for impeachment – democrats established that. Had congress had the information on J6 that it has today – Congress could have perfectly legitimately chosen not to certify Biden’s election.

        Those ont he left and Smith are trying hard to make what is most definitely not binary into binary – either the election was criminally stolen or it was not – there is no domain in between. When infact there is a giant gulf between.

        The courts unfortunately employed far far too high a standard to intervene. The bar to allow discovery, subpeonas and investigation MUST be incredibly low – especially when the target of that investigation is government actors not private citizens. Constitutional requiirements for investigations do not apply to investigations of govenrment. Individuals have rights – governments only have powers.
        Separately the standard to act on a suspicious election must also be relatively low. The courts MUST demand high standards from those conducting elections – or we will not get them. You rightly rail at what AZ 2022 showed us.
        We can debate over whether AZ is proof of criminal election fraud. There is zero doubt that it is proof of absolutely unacceptable elections. But ultimately there is no such thing as mess up beyond what is acceptable unless and until the courts are willing to act. Until there are consequences then the laws that direct how elections are to be conducted might as well not exist.

        But my Quibble with both you and Turley is that none of this matters in this case.

        If Trump was KNOWINGLY LYING – there is still no crime. Turley and unfortunately too often the courts get this wrong.
        You can be innocent of an act that is a crime because because you do not have the required intent.
        But you can not be guilty of something that is not a crime because you do have criminal intent. Congress inarguably has the power to certify and election or not. It is extremely rare that they chose not to – and that is as it should be. But they have the constitutional power to refuse to certify and that has happened repeatedly before – atleast once nearly identical to 2020.

        It therefore CAN NOT be a crime to attempt to get congress to do something they have the power to do – even by lying.
        Extrotion and or bribery to get congress to refuse to certify would violate the laws Smith cites, but actual lies to attempt to persuade can not. Nor can it be different – otherwise we weaponize criminal prosecutions of the losing party in all elections – regardless of the merits of the claim. There will ALWAYS be some place – like DC where the politics warp such prosecutions.

        One of the dangers that the left does not realize that it is creating as it persies this political garbage is Republican AG’s in red states weaponizing their criminal justice systems against democrats.

        The behavior Smith alleges as Smith alleges it can not be criminal or our political system is going to h3ll fast.
        And democrats should think before they act. Because in each instance they have overreached so far – they have been the inevitable loser.

  16. Where will your upcoming law review article on free speech be published? I am a national security lawyer but have always had free speech views similar to yours. I read, with great interest, your daily postings.

  17. Great commentary by Professor Turley. Criminalizing free speech, that troubles me greatly, so it’s important to have a a national dialogue on this.

  18. JT can have whatever opinion he wants, but the opinions that will matter in this case are those of the judge and jury. Those who are simply patient will see what the rulings and verdict are.

    1. No, the voices that will matter will be the appeals court or the Supreme Court. Smith has been overturned before, even 9-0, and it is not unlikely that it won’t happen again.

  19. Go ahead and charge Trump.
    But then lets apply that same rule to Democrats and other politicians.

    That would mean putting Joe Biden behind bars for many years as well.
    And then there’ Hillary, Obama, heck… we can go down the list of so many politicians who lied for both financial and political gain.

    At least we’re being consistent in the application of the law.

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