Jack Smith’s legal actions against Trump continue to undermine free speech

“With liberty and justice for all.” Those are the final six words of the Pledge of Allegiance. But, as Frederick Douglass once said, “liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist.”

And if Special Counsel Jack Smith gets his way, the right to “utter one’s thoughts and opinions” will cease to exist.

Judge Tanya Chutkan unsealed Smith’s 165-page brief on Wednesday that, at its crux, alleges that Trump used “false claims of election fraud to disrupt the electoral process.”

“In the months leading up to the election, [Trump] refused to say whether he would accept the election results, insisted that he could lose the election only because of fraud, falsely claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by Election Day were valid,” Smith’s pre-election filing claims.

But it’s highly unlikely that any of those things aren’t protected speech. The First Amendment has extremely narrow exceptions for speech that can be prosecuted — and for good reason. Freedom of speech is indispensable to a free society. And with that freedom comes the right to question your government. Prosecuting Americans for questioning the government flies in the face of the First Amendment. Such lawfare prosecutions are designed to chill political speech, leaving only the approved messages of the ruling faction to be permitted.

It’s inherently anti-American, but nevertheless, Smith persists in his mission to gut the First Amendment.

“The defendant and his co-conspirators also demonstrated their deliberate disregard for the truth — and thus their knowledge of falsity — when they repeatedly changed the numbers in their baseless fraud allegations from day to day,” Smith’s filing continues.

But if claiming that an election is stolen or improperly administered is a crime, Stacey Abrams and Hillary Clinton should be in jail right now.

When Abrams lost the 2018 Georgia gubernatorial race to Brian Kemp by 1.4 percentage points, she said the election was “tainted” which led to the “disinvestment and disenfranchisement of thousands of voters.” Abrams went so far as to say she was not making a concession speech because to do so would “acknowledge an action is right, true, or proper.”

Hillary Clinton, who claimed the 2016 election was “basically stole[n]” from her, said that had Abrams “had a fair election, she would have already won.”

But of course such a conclusion is risible. Clinton, Abrams, and the dozens of other Democrats and leftists who have questioned the outcome of an election have every constitutional right to do so.

Smith also alleged that Trump, for example, “was on notice that there was no evidence of widespread election fraud in Arizona within a week of the election.” Smith argues Trump should be prosecuted for claiming, in part, that “non-citizens” voted in Arizona’s election. Notably, Arizona’s Democrat election officials recently announced there are roughly 218,000 voters on the rolls who never provided documentary proof of citizenship but have nonetheless been permitted to vote in both state and federal races — contrary to state law.

What’s more is that Smith implicitly acknowledges that while some votes may have been fraudulent, only the DOJ can decide when it’s acceptable to speak out against fraudulent votes.

“The defendant, his co-conspirators, and their agents spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” the filing states. (PAGE 10)

Georgia’s Fulton County was reprimanded by the State Election Board in May after the state found the county violated election law during the 2020 election. The county double scanned more than 3,000 ballots during the presidential recount. The Associated Press admits while an audit of the 2020 election found the “double counting of ballots,” the “error weren’t enough to alter the election results.”

In fact, a recent poll conducted by Rasmussen Reports found that 17% of respondents said “yes” when asked whether, during the 2020 election, they “cast a mail-in ballot in a state where you were no longer a permanent resident.” Such practice is illegal.

A Pennsylvania man was charged in August for allegedly voting in both Florida and Pennsylvania during the 2020 presidential election, according to The Associated Press. Meanwhile a report from Michigan’s Office of the Auditor General found that 1,616 votes “were attributed to people who were deceased as of Election Day.” In 20 of those instances, “a person who cast a ballot had died more than 40 days before the election,” according to The Detroit News which cited the report. Others may have “sent in their ballots ahead of the election but passed away before Election Day,” according to The Detroit News.

Even if fraudulent ballots were cast and counted at a level that wasn’t “outcome-determinative,” they were still fraudulent. Trump had (and has) every right to speak out about it, regardless of the scale.

That’s also not to say that such small amounts of fraud couldn’t alter other races. (Lest we forget that Rep. Mariannette Miller-Meeks narrowly won her 2020 election by just six votes. Imagine Miller-Meeks being prevented from questioning whether the election was free and fair even if a handful of the votes cast were fraudulent — or cast by dead persons — and swung the outcome of the race?)

If Smith’s lawfare efforts are successful, it could jeopardize future elections, making them susceptible to “outcome-determinative” fraud. If no one can question the results or administration of an election, there’s little incentive for honesty — and no accountability means no consequences.

Brianna Lyman is an elections correspondent at The Federalist. Brianna graduated from Fordham University with a degree in International Political Economy. Her work has been featured on Newsmax, Fox News, Fox Business and RealClearPolitics. Follow Brianna on X: @briannalyman2