by Jonathan Turley
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 for a politician on false claims made during and after an election.
As expected, Smith’s charges were met with a level of ecstasy that bordered on the indecent. Former acting solicitor general Neal Katyal, who served under President Barack Obama, declared that the indictment “is up there with Dred Scott, it is up there with Brown v. Board of Education.”
Yes, this indictment was compared to an opinion ending segregation in the United States.
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.
Supreme Court has ruled on election-related lies
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 are likely to raise.
The DNC, UN, CFR, Soros, Clinton, Obama, Biden Etc. this whole Witch Hunt against Trump is going to Backfire on them all and that also includes the NYT’s W.P. Time Newsweek, 60 Minutes and the rest of the Fake News Media Gutter Dwellers
Desperate and cowardly Democrats are destroying every pillar of our constitutional representative democracy. Soon, we will be a “democracy” and “republic” in name only, like the USSR or the DPRK. The most totalitarian, socialist and fascist type of government with a nice name slapped upon it.
Give the drama a rest and read the damn indictment.
It reads like something out of The Rise and Fall of the Third Reich.
This is the mind and body control off the CCP and North Korea. There are other examples of this type of full on control in the world. This type of authoritarianism is not at all what this country was founded upon and our forefathers warned up of this and gave us tools to prevent it.
Tools are useless unless you pick them up and use them. Or if someone has stolen and broken them.
Agreed
We have weak Republican leadership.
Can you imagine the fact checking we’d see during elections if this is allowed to stand?
Politicians could no longer lie?!
Or,
That figure is off by 2000 percent.
Photos don’t lie, joe.
Joe would be serving several life sentences just for his campaign lies alone!
Idiot Biden wouldn’t even be able to speak. And Schiff?