Washington Examiner

Donald Trump indicted; First Amendment tested in Jan. 6 case by Jack Smith.

Former President‍ Donald Trump’s ​Latest Indictment: A First Amendment Defense

Former ⁣President⁤ Donald ‌Trump’s⁣ latest indictment ⁣by ⁣the Department of Justice has⁤ prompted his lawyer to repeatedly point ⁣to the First Amendment as his ⁢primary line⁢ of defense, saying ‍it provides⁢ “an almost absolute protection.”

“These claims were false, and the Defendant‌ knew that they​ were false,” the 45-page indictment⁣ read. “But the defendant repeatedly and widely disseminated ‌them 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.”

Special counsel Jack Smith ⁢revealed‍ four felony charges against ⁤Trump on Tuesday, including‌ three conspiracies and one count of‌ obstructing or attempting to obstruct an official proceeding. Prosecutors allege Trump continued to peddle lies about⁤ the⁢ outcome ‌of ​the 2020 election ⁤despite knowing that he lost.

Prosecutors ⁤Challenge​ Trump’s Claims of Election ​Fraud

While the‍ indictment also spelled out Trump’s‍ free speech ⁣rights to claim the⁤ election was stolen, prosecutors ⁤claim the former‌ president went a step too far when he pursued “unlawful means of discounting legitimate votes,” including alleged violations of ⁤18 U.S.C. §⁢ 371, 18 U.S.C. § 1512, and 18 U.S.C. ‍§ 241.

Trump’s attorney in the latest​ indictment, John Lauro, told‌ NPR that prosecutors “have⁢ to prove corrupt intent” under⁢ 18 U.S.C. 1512, which is the obstruction statute.

“And corrupt‍ intent means‌ that you ‍don’t believe in, ‌not only that you don’t believe in the position that ⁢you’re advancing, ⁣but you’re⁤ doing ‌it for a corrupt purpose, ‍you’re doing ‌it to obstruct a government function​ rather than⁢ a‍ truth-seeking ⁢function,” Lauro said.

The ‌attorney also‍ defended his client by citing so-called advice ⁤given ⁣to ‌Trump⁢ by‌ lawyer John Eastman, who told Trump​ there were legal means to delay the certification of the election.

“The president was told, given advice, that ​under these circumstances, the state legislatures have the ultimate⁤ ability to qualify electors. He followed that advice,” Lauro said in a separate ⁣interview with‍ CNN​ on Wednesday.

In part of the indictment, prosecutors allege Trump and Eastman asked ‍Republican⁤ National Committee Chairwoman‌ Ronna McDaniel to help the Trump campaign recruit so-called “fake electors” in seven battleground states and claimed they ‍”falsely represented” that‌ the electors would only be used if Trump’s various lawsuits‌ against‌ the ​election‍ results succeeded.

But prosecutors have sought to poke holes into the notion ⁤that Trump’s claims ⁤of election fraud were an entirely “truth-seeking function,” as the indictment lists names ⁢including ‌former Vice President Mike Pence, ⁣former Attorney General Bill Barr, and ⁤several other former administration officials who all said there was ⁤no amount ​of meaningful election⁣ fraud that could have altered the results of the ‌2020 election.

Trump’s own ‍words ⁣are‌ also cited as part of ‍prosecutors’ attempts to claim Trump knew that his election fraud claims were false.​ “When the Chairman and another advisor recommended that the Defendant take no action because Inauguration ⁣Day ⁤was only seventeen ‌days away and any course of ⁤action could trigger something unhelpful, the Defendant calmly agreed, stating ‘Yeah, you’re ‍right, it’s ⁢too late for us. ⁢We’re⁢ going to give that to ‌the next guy,'” page 31 of the indictment reads.

The⁢ former ⁤president is also on record in the indictment telling Pence that he⁤ was “too honest” when he said ‍he had no power to overturn the 2020 ⁤election.

Lauro previewed he plans to argue⁤ to the jury⁣ that Trump “was arguing for the truth to come out ⁤in that election cycle rather than the ‌truth to‌ be denied,” adding that ⁢”we’ll win.”

“Even⁤ at⁤ the end, when he asked Mike‍ Pence ⁣to pause the voting, he asked​ that it be sent back to the states so that the states, in exercising their truth-seeking function, ⁣could either audit or recertify,” Lauro added.

The Challenge Ahead⁣ for Prosecutors

Case Western Reserve University Law professor Jonathan Adler⁣ said he believes the biggest challenge ahead for prosecutors is parsing “what⁣ is aggressive, perhaps ⁤unethical political activity, from what is actually illegal.”

“The case that Smith has⁢ set forth, I would argue,⁣ is plausible⁤ as a legal case. That doesn’t mean it will win. It doesn’t mean it deserves to win, but I think it’s certainly plausible.⁢ And we’ll have to see,” Adler said.

Adler ​also noted examples ‍of Smith “being overaggressive in pursuing prosecutions before.”

At least‍ two ‍of Smith’s​ prior‍ corruption cases have ‌been upended,⁢ including ​a conviction⁢ of Robert McDonnell, a Republican former ⁢governor of Virginia,‍ that‍ was later ⁤overturned ⁤by the ⁤Supreme Court in​ an 8-0 decision in June 2016. Trump himself also pardoned the ⁢conviction of former Rep. Rick Renzi, an Arizona Republican,‌ on his final day in office.

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