Trump’s Free Speech Defense is Unlikely to Prevail
Justice may finally have ensnared the Teflon Don. Laurence Tribe, the Harvard law professor and Trump critic, was solemn in his appraisal of the 45th president’s latest indictment, filed in Washington, D.C., the third indictment of Trump in four months: “The former president has now been indicted for trying to overturn the peaceful and lawful process of electing the head of government,” said Tribe. “This is a moment that history will never forget.”
No kidding. Sure, most of the indictment is not new, and it is odd that Jack Smith, the special counsel, waited so long to file. Still, his necessary venue, Washington, D.C., which only gave 5 percent of the vote to Trump, is likely to produce a receptive jury pool—unlike Fort Pierce, Florida, where he filed the Mar-a-Lago documents case before an unseasoned judge and an expected MAGA jury that thinks he won the 2020 election.
Everyone is interested in whether this indictment, arising out of Trump’s destabilizing effort to overturn the election results, culminating in the January 6 assault on the Capitol, will lead to his conviction and/or hinder what seems to be a steady march toward the Republican presidential nomination next year.
Conspicuously absent from the indictment was any crushing charge, such as inciting an insurrection or seditious conspiracy, where conviction might carry disqualification from holding public office. That would have forced the prosecutor to draw a straight line from Trump to rioters acting with premeditation, such as the Proud Boys and Oath Keepers. Even if convicted, Trump can remain a candidate and even assume office. Tanya Chutkan, the federal district court judge in Washington, D.C., who will oversee the trial, will try to begin and conclude it before the November 2024 election.
If Trump is convicted, he will surely appeal to the D.C. Circuit Court of Appeals and, failing that, to the Supreme Court. Should he exhaust his appeals, the statutes under which he is charged carry heavy penalties, ranging from five to 20 years, likely meaning that if he were sentenced to federal prison, the 77-year-old would die there.
But what if Trump is elected? If he is, he will pardon himself, an act of dubious constitutionally. But as a practical matter, the 47th president would end it. His new attorney general will drop all charges, and who will have standing to raise the issue in the courts?
Can Trump run for office when he faces indictments in two federal districts and possibly two states—the New York payoff of Stormy Daniels, his paramour, and Georgia, where a charge for trying to overturn the state’s 2020 support for Joe Biden is looming? You betch’um, although his attorneys will likely move to stay these cases pending trial in the District of Columbia. January 6 may be the indictment everyone was waiting for, and while it reads strongly, it may be his best shot at acquittal. There’s no video of classified documents being moved or recordings of him asking for 11,000 votes.
Trump’s lawyers have already claimed that the grand jury’s indictment, unsealed on Tuesday, is an “indictment of freedom of speech,” meaning that Trump was well within his rights to complain about the election results even if he was delusional in thinking that he had won and that his victory had been stolen from him. This talking point was a staple on Tuesday night’s Fox News Channel’s pro-Trump prime-time lineup. Alan Dershowitz and Jonathan Turley, law professors at Harvard and George Washington University, respectively, made that point. Their reasoning raises a philosophical question: Can the Constitution be a defense for someone who tried to subvert it?
But the “Gee, I thought I won” defense is unlikely to be persuasive to a jury and doesn’t pass the laugh test. To use it, Trump would have to take the stand, lie to try to run it, and subject himself to withering cross-examination. Smith crafted the indictment precisely to deny Trump a First Amendment path to acquittal, wrapping Trump’s conduct around conspiracy law. A conspiracy, judges charge juries, is a “partnership in crime.” The essence of the offense is the agreement to commit an illegal act; it is separate from the crime itself. The Trump indictment charges acts, declarations, and conduct—not speech—in three separate conspiracies. They are a conspiracy to defraud the United States by obstructing the collecting, counting, and certifying of presidential election results; a conspiracy to obstruct the certification proceeding mandated in the Constitution; and, using a Reconstruction-era statute, a conspiracy against the right of the American people to vote and have their votes counted.
The iconic Judge Learned Hand once aptly called conspiracy the “darling of the modern prosecutor’s nursery.” Conspiracy is a legal dragnet, and it is not difficult to convince a jury that the defendant is caught up in its toils. Rules of evidence are relaxed, circumstantial evidence is admissible, and there need not be proof that the criminal plot succeeded or that all its members believed the same thing, only that it was conceived and at least one overt act was committed in its furtherance.
In the 45-page “speaking indictment,” which Ari Melber on MSNBC called a “shouting indictment,” Smith charged enough overt acts to move a mountain.
The indictment draws a red line on this flimsy “free speech” defense. Trump could legally tell his followers—whether or not he believed it—that he had legitimately won the election and that fraud denied him the spoils. He could initiate litigation to declare election fraud in certain states. He could talk to local officials and demand recounts and audits. But the indictment sets out what he couldn’t do: “pursue unlawful means of discounting legitimate votes and subverting the election results.”
This would include, as charged in paragraph 10: using “dishonesty, fraud and deceit” to make it appear he had won the election; organizing fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin); using the power of the Justice Department to conduct sham election crime investigations and then represent to select states that DOJ had identified significant concerns; enlisting the vice president to do what he was not legally entitled to do, namely, hold off certifying the count in the electoral college, and, when that failed, to whip up a mob of supporters by falsely telling them that the vice president had the authority to overturn the result and directing them to the Capitol to pressure Mike Pence into taking the illegal action he had refused; and also leveraging off the riot he had instigated on January 6 to delay or deter the Congress from certifying the vote—heavy stuff.
Can Trump defend three or four criminal cases simultaneously in the middle of the primary season? The New York payoff case regarding porn star Stormy Daniels is set for March. The Florida documents case is set for May. If Trump is indicted in Georgia, the case should move expeditiously. And in this D.C.-January 6 indictment, Smith has said he will seek a speedy trial. The Speedy Trial Act requires a trial within 70 days of arraignment, and Trump will be arraigned on August 3. I believe that Trump’s lawyers will move to stay all pending cases except this latest one on the ground that he can’t possibly fight on multiple fronts. These motions will probably be granted. They will do this because they are unlikely to get a stay out of the Obama-appointed Judge Chutkan, and this trial may raise more appellate issues to delay the outcome until after the election.
Trump and his enablers will say whatever they think can win in court or the court of public opinion. This week, their headline is “What about Hunter Biden?” which is a false equivalency and will be inadmissible in court. Then, they will say that Trump was not lying about the election because he believed he had won. Convicted fraudster Elizabeth Holmes claimed she thought the bogus Theranos procedure would help people. Fraudsters frequently contend in court that they believe their grift. Free speech is never a license to defraud. But the indictment is replete with evidence from his own Republican appointees that Trump knew he had legitimately lost the election and that his claims of fraud were baseless. His attorney general Bill Barr told him that his position was “bulllshit.” Barr was joined in this assessment by Trump’s closest advisers, including his own director of national intelligence. The coup de grace, though, is Trump admitting in White House conversations that he had lost, and, in calling Pence “too honest,” he all but confessed. And on and on and on.
In any event, a belief in the truth of one’s statements is not a defense. (“I believed that Rolex in the window was stolen from me years ago. So, I was entitled to take it.”) In another January 6 case, Royce C. Lamberth, a senior federal judge in Washington, D.C., found a high-profile January 6 rioter guilty of the obstruction count despite the defendant’s repeated claims that he believed the election had been stolen.
Lamberth’s reasoning—which came in the case of Alan Hostetter, a former police chief turned yoga instructor from Southern California—did not mention Trump’s potential criminal exposure. Still, it could set a legal basis for refuting any attempts by the former president to get around the law’s references to “corruptly.”
“Even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing,” Lamberth wrote. “Belief that your actions are serving a greater good does not negate consciousness of wrongdoing.”
Will the indictment move Trump’s supporters, who are 37 percent of the electorate? Oh, please. What Trump’s besotted 37 percent love most about him is that he lies, and it is doubtful they will desert him now. And who in the Republican Party will flee him? Amid the Watergate scandal, influential Republican congressional leaders convinced Richard Nixon to resign to avoid impeachment. Trump’s GOP Quislings only cheer him on. Even his primary opponents, with a couple of notable exceptions, are aiming their fire at the Justice Department and not him.
Interestingly, unlike the Florida case where Smith, ill-advisedly in my view, joined as co-defendants Trump’s “body man” Waltine Nauta, and his hotel staffer, Carlos De Oliveira, the new indictment charges Trump alone and six “unindicted co-conspirators,” five of them lawyers.
We can only speculate that these six will be indicted later, or perhaps they will testify as cooperating witnesses. Facing significant prison time and disbarment, they may go to Smith’s side of the table, testify truthfully as government witnesses, and hope for lenient sentences. Or they can stick with Trump and take their chances.
Trump is presumed innocent like any other defendant, but the facts are overwhelming. Distraction and deflection and frivolous claims of good faith just won’t work.
Still, the Kool-Aid effect is there. I met by chance a Trumpy friend in a restaurant just after the indictment was unsealed and told him the news. His immediate reaction was a resigned, “Again?” His wife said, “What about Hunter Biden?”
My immediate reaction was not “Again,” but “Finally.”
This is the case for the history books, a case that should have been brought long ago.
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