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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