Below is my column in USA Today on the second indictment of former President Donald Trump. While many are celebrating the charges, the implications for free speech are chilling. While Smith did not charge incitement or insurrection (or seditious conspiracy), commentators (and Smith) portrayed the case as holding Trump accountable for the actual riot in the Capitol. Notably, the same pundits and politicians previously insisted that the rejected crimes were obvious and well-established. Indeed, Trump was impeached on incitement charges. They are now shrugging off the conspicuous omission of those charges while attacking those of us with free speech concerns as apologists.
Here is the column:
Special counsel Jack Smith made history on Tuesday.
It wasn’t just the federal indictment of a former president. Smith already did that in June with the indictment of Donald Trump on charges that he mishandled classified documents.
No, Smith and his team have made history in the worst way by attempting to fully criminalize disinformation by seeking the incarceration of a politician on false claims made during and after an election.
The hatred for Trump is so all-encompassing that legal experts on the political left have ignored the chilling implications of this indictment. This complaint is based largely on statements that are protected under the First Amendment. It would eviscerate free speech and could allow the government to arrest those who are accused of spreading disinformation in elections.
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.
The court warned such criminalization “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”
That precedent did not deter Smith. This indictment is reminiscent of the case against former Virginia Gov. Bob McDonnell. His conviction on 11 corruption-related counts was unanimously overturned by the Supreme Court in 2016, with Chief Justice John Roberts writing that federal prosecutors relied on a “boundless” definition of actions that could trigger criminal charges against political leaders.
Smith is now showing the same abandon in pursuing Trump, including detailing his speech on Jan. 6, 2021, before the riot while omitting the line where Trump told his supporters to go to the U.S. Capitol to “peacefully” protest the certification.
While the indictment acknowledges that candidates are allowed to make false statements, Smith proceeded to charge Trump for making “knowingly false statements.”
On the election claims, Smith declares that Trump “knew that they were false” because he was “notified repeatedly that his claims were untrue.”
The problem is that Trump had lawyers and others telling him that the claims were true. Smith is indicting Trump for believing his lawyers over his other advisers.
I criticized Trump’s Jan. 6 speech while he was still giving it and wrote that his theory on the election and the certification challenge was unfounded. However, that does not make it a crime.
If you take a red pen to protected free speech in this indictment, it would be reduced to a virtual haiku. Moreover, if you concede that Trump may have believed that the election was stolen, the complaint collapses.
Smith also noted that Trump made false claims against the accuracy of voting machines in challenging the outcome of the election. In 2021, Democratic lawyers alleged that thousands of votes may have been switched or changed by voting machines in New York elections. Was that also a crime of disinformation?
Smith indicted Trump because the now former president “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” The special counsel also says Trump “repeated and widely disseminated (the lies) anyway – to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
Let’s acknowledge that Trump was wrong. The election wasn’t stolen. He lost, and Joe Biden won.
But how do you prove legally that Trump truly didn’t believe his false claims? And even if you can prove that Trump lied, how do you legally distinguish his falsehoods from the lies other political leaders have told over the years? When, in politics, does making a false statement cross the line into criminal behavior? Those are questions Smith and his team must answer in court, and ones that Trump’s defense team is likely to raise.
Polls previously showed that roughly half of the public viewed earlier charges against Trump as politically motivated. That is why many of us hoped that any indictment would be based on unquestioned legal authority and unassailable evidence.
Smith offered neither. This indictment will deepen the view of many in the public that the Justice Department is thoroughly compromised in pursuing political prosecutions.
These concerns were magnified Tuesday by Smith, who announced the charges with comments that made him sound more like a pundit than a prosecutor. The special counsel gave an impassioned account of the Capitol riot that made it sound like Trump was charged with incitement. He wasn’t. Nor was he charged with seditious conspiracy, despite his second impeachment on those charges.
Notably, many of the legal experts praising the indictment previously insisted that there was a clear case for incitement against Trump. Indeed, Democratic members made the claim the center of the second impeachment, despite some of us writing that there was no actionable claim.
Even Smith wouldn’t touch the incitement or sedition claims that were endlessly pushed by legal experts and Democratic members.
Instead, Smith will seek to criminalize false political claims. To bag Trump, he will have to bulldoze through the First Amendment and a line of Supreme Court cases. That’s why this latest indictment of Trump isn’t just wrong. It is reckless.