Georgia is on our minds.
By Kenin M. Spivak
August 29, 2023
(Views expressed by guest commentators may not reflect the views of OAN or its affiliates.)
The RICO case against Trump demonstrates the radical Left’s commitment to ending free speech.
Georgia’s Fulton County District Attorney Fani Willis’s indictment of Donald Trump and 18 other defendants for knowingly and willfully conspiring to unlawfully change the outcome of the Georgia election, Jack Smith’s similar federal indictment of Trump for lobbying Congress and the vice president to delay certification of 2020 election results, the Biden Administration’s whole-of-government censorship enterprise (see here and here), the Department of Justice’s targeting of pro-life demonstrators, and widespread ostracism and termination of academics, executives, other professionals, parents, and people of faith who refuse to tow the progressive line are all part of an intensifying effort by progressives to deprive Americans of their bedrock free speech rights.
The Georgia indictment alleges that the defendants conspired to falsely overturn the 2020 Georgia election, falsely lobbied elected officials, fraudulently created a slate of alternative electors, and tampered with election machines and voting records.
The federal and Georgia indictments overwhelmingly rely on allegations that constitutionally protected political speech becomes a crime when used to support goals that the Left abhors. The indictments invade attorney-client privilege to expose the legal advice Trump received and allege that because the advice was outside of prevailing legal doctrine, the lawyers committed crimes by giving that advice. Though the indictments also allege unlawful actions, as a basis for the indictments, the alleged actions are inconsequential compared to the alleged speech.
With rare exceptions, political speech cannot constitutionally be the basis for a prosecution. In West Virgina State Board of Education v. Barnette (1943), the Supreme Court held that protecting political speech is part of the “fixed star in our constitutional constellation.” It makes no difference if Trump and his co-defendants were wrong about election fraud, or, generally, even if they knew they were wrong. The Supreme Court has made it clear that the First Amendment protects false political speech, United States v. Alvarez (2012), and that the remedy is more free speech setting the record straight. There is no exception for misinformation, let alone “malinformation,” which the Department of Homeland Security defines as “based on fact, but used out of context to mislead, harm, or manipulate.”
For at least two reasons, it is inconsequential if the purpose of the defendants’ tweets and other statements was to convince government officials to re-examine, delay, or change the basis on which they would certify election results. Regardless of whether the action promoted was criminal, advocating the commission of a crime, or even the use of violence, to advance political goals is protected by the Free Speech Clause, unless it is a direct incitement to imminent lawless action and is likely to succeed, Brandenburg v. Ohio (1969). And under a separate clause of the First Amendment, each American also has the right to “to petition the Government for a redress of grievances.” It is unconstitutional to bring criminal charges against an American for exercising his or her First Amendment rights.
My analysis of Smith’s indictment is here.
Willis’s 98-page indictment is replete with 161 allegations, most of which concern tweets, phone calls, or other statements made by Trump or his lawyers.
There is no allegation that Trump or any other defendant threatened physical harm to anyone, though there is a single vague allegation that certain defendants “traveled from out of state to harass [a county election worker], intimidate her, and solicit her to falsely confess to election crimes that she did not commit.”
Rather, the indictment is largely a litany of protected speech. Typical are these Trump tweets: “Georgia hearings now on @OANN. Amazing!”; and, “Gee, what a surprise. Has anyone informed the so-called (says he has no power to do anything!) Governor @BrianKempGA & his puppet Lt. Governor @GeoftDuncanGA, that they could easily solve this mess, & WIN. Signature verification & call a Special Session. So easy!”; and this tweet from co-defendant and Trump lawyer Rudy Guliani, “Georgia Patriot Call to Action: today is the day we need you to call your state Senate & House Reps & ask them to sign the petition for a special session. We must have free & fair elections in GA & a [sic] this is our only path to ensuring every legal vote is counted.”
Other statements described in the indictment are constitutionally-protected efforts to lobby Georgia legislators and other Georgia officials.
The cover, tables of contents, and signatures take 14 pages. The largest section, 58 pages, is a single count under Georgia’s equivalent of the Racketeer Influenced and Corrupt Organizations Act (RICO). Ironically, Guiliani became famous by using the federal RICO statute against the Mafia in New York.
The federal RICO statute, and apparently the Georgia equivalent, are premised on an enterprise formed for an unlawful purpose. Re-electing Trump was not unlawful. Willis will have difficulty proving that this enterprise existed to commit unlawful acts, even if some of the 19 defendants broke the law. It is particularly far-fetched that the protected speech attributed to Trump and the other defendants is individually or collectively a crime.
The remaining 26 pages allege that one or more defendants impersonated a public officer, forged and filed false documents, influenced witnesses, and engaged in computer theft, trespass, invasion of privacy, and acts involving theft and perjury.
Claims of improperly influencing witnesses, conspiracy to defraud the state, and filing false documents largely relate to lobbying efforts and other activities protected by the constitutional right to petition government for redress. If Willis can show that a defendant attested to the accuracy of a filing the defendant knew was false, this could be a misdemeanor, or in some instances a felony. These crimes are seldom prosecuted, except as an adjunct to a much more serious claim.
Claims of forgery, filing false documents, and impersonating a public officer tie back to a slate of alternative Trump electors recruited to vote for Trump if he prevailed in his Georgia lawsuit, or if the legislature accepted his entreaties.
As Margot Cleveland compellingly explained in The Federalist, the use of alternative electors to protect a candidate challenging the outcome of an election is neither fake nor fraudulent, with bipartisan antecedents. If the courts disagree with Cleveland’s analysis, Trump and other defendants are at peril for these claims.
Some of the claims relate to phone calls and Oval Office meetings in which then-White House Chief of Staff, defendant Mark Meadows, participated, and an official letter written by then-Assistant Attorney General, defendant Jeff Clark. Both have sought to remove their cases to federal court on grounds they were acting within the scope of their federal duties. A federal court in Atlanta denied a portion of Meadows’ motion but, ultimately, both should prevail. Both should also prevail in the defense that their actions were not unlawful.
Aside potentially from the alternative elector structure, the most problematic claims allege that an electronics forensic company retained by co-defendant and lawyer for Trump Sydney Powell, SullivanStrickler LLC, accessed and tampered with voting machines and election results. If true, these are serious crimes. Whether they can be attributed to other defendants largely will depend on whether the RICO claim survives legal motions.
As a core constitutional principle, with few exceptions, no federal or state prosecutor can criminalize lobbying government for redress, false tweets, or false statements on contentious political issues. In United States v. Cruikshank (1876), the Supreme Court held that the Sixth Amendment requires an indictment that apprises the defendant of the crime charged with reasonable certainty so he can make his defense. The Georgia indictment fails to allege any of the exceptions to First Amendment protections, instead using conclusory language like “corrupt intent.”
The criminalization and censorship of protected speech, and the progressive effort to steamroll Americans into using vocabulary they approve to express only concepts they support, are gradually transforming America into an Orwellian dystopia in which fundamental rights and freedoms are being stripped away.
There are times when sounding the alarm is hyperbolic. Conservatives who believe that progressive outrages are transitory fail to understand that they have been diligently working for 50 years to come to this point. Aside from a setback at the Supreme Court, progressives are in a dominant position in education, most government bureaucracies, media, entertainment, professional associations such as the AMA (see here and here) and ABA, and many public corporations. They dominate other fields that rely on elite universities for their professionals.
Because of the weaponization of the American justice system, Trump has been indicted four times, and the DOJ allowed the statute of limitations to run on most of Hunter and Joe Biden’s offenses. This corruption can be mitigated if a Republican, or even an honest Democrat, is elected president.
The attack on free speech is metastasizing, public support for free speech is declining, and correcting course will be much more difficult than fixing the DOJ, or even state prosecutions.
A Knight Foundation-Ipsos poll last year found free speech is “extremely important” to 63 percent of Americans, but only 39 percent of Democrats thought protests against certifying the 2020 election should be protected, and only 20 percent thought “online misinformation” should be protected. A July 2023 Pew Research poll found the share of U.S. adults who say the federal government should restrict false information has risen from 39 percent in 2018 to 55 percent, including 70 percent of Democrats “even if it limits people from freely publishing or accessing information.”
Conservative and libertarian litigation groups, notably New Civil Liberties Alliance which played a key role in Missouri v. Biden, winning a preliminary injunction against the Biden Administration censorship efforts, Alliance Defending Freedom, Judicial Watch, Wisconsin Institute for Law & Liberty, America First Legal, and the Foundation for Individual Rights and Expression (FIRE), among other groups and Republican state attorneys general, have taken the lead in filing litigation to protect First Amendment rights.
Given the progressive domination of the levers of power, supporting these litigation groups and electing centrists and conservatives steeped in America’s commitment to the Bill of Rights is the most productive course. It is distressing that expansive litigation is the best path forward. But it is better than the alternatives, which are unimaginably worse.
Kenin M. Spivak is founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and has served as a director and C-suite officer of public and private companies. Spivak has written for National Review, the National Association of Scholars, and Huffington Post. He was chairman of the Editorial Board of the Knowledge Exchange Business Encyclopedia, and a long-time director of the RAND Corporation Center for Corporate Ethics and Governance. He received his A.B., M.B.A., and J.D. from Columbia University.
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