Below is my column in The Hill on how the second indictment of Donald Trump could fail even if Special Counsel Jack Smith could prove that the former president knew that he was lying after the election. Proving his state of mind will be controversial, but, even if successful, it would not necessarily be determinative in the constitutional challenges to come.
Here is the column:
The latest federal indictment of former President Donald Trump was handed down this week with all of the authority of papal infallibility. Pundits lined up to proclaim that case as the greatest prosecution in history.
Former Obama administration acting Solicitor General Neil Katyal even declared that the indictment touched off “the biggest legal case in our lifetimes, perhaps almost ever. It’s up there with cases like Dred Scott, it is up there with Brown v. Board of Education.” What was missing was any serious consideration of the implications of allowing the government to criminalize false statements in a campaign.
Trump was not charged with conspiracy to incite violence or insurrection. Rather, he was charged because he “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.”
In order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected.
The government acknowledges that the Constitution protects false statements made in campaigns, but it insists that Trump must have known that his statements were false and therefore was engaged in fraudulent statements to obstruct or challenge electoral results.
As a threshold matter, one problem is immediately evident.
If Trump actually did (or does) believe that he did not lose the election, the indictment collapses.
And so in an effort to demonstrate his knowledge, the indictment details how many people told Trump that he was wrong about the election and wrong about the law. I was one of those voices.
Trump did not listen to me, most legal analysts or even his White House counsel.
Instead, he listened to a small group of lawyers who assured him that a challenge might succeed and that there was evidence of massive election fraud.
But Trump is allowed to seek out enablers who tell him what he wants to hear. All presidents do this.
(Joe Biden, for example, ignored virtually unanimous legal opinion and relied upon a single law professor’s say-so to justify an obviously unconstitutional executive action that later had to be reversed).
This case, which criminally targets the sitting president’s leading opponent, is much more dangerous because it sets up the federal government as the arbiter of truth.
This indictment essentially charges Trump with not accepting the “truth.”
There is no limiting principle to this indictment.
The government would choose between which politicians are lying and which are lying without cause.
Under our current understanding of free speech, Democrats ranging from Hillary Clinton to Rep. Jamie Raskin (D-Md.) were engaged in protected speech when they called Trump illegitimate and challenged the certification of his win, even though they knew that their challenges were completely meritless. Yet this indictment suggests that Trump engaged (and indeed still engages) in criminal conduct by insisting that the 2020 election was stolen.
Presumably, it also follows that tens of millions of Americans holding that same view are also involved in spreading the same false claims underlying the indictment.
Smith could still secure the cooperation of insiders to support a claim that Trump knew. Many of us have noted the sudden silence of former Chief of Staff Mark Meadows and a couple of former Trump lawyers who do not appear to be among the six referenced criminal co-conspirators. One of those six could also flip and say that Trump said that this was all an undeniable but useful sham.
Yet even assuming Trump knew his claims were false, there would still remain the controversial effort to link his false claims to the actions of others in challenging the election. And even then, there remains the constitutional problem of criminalizing political lies.
In the 2012 decision United States v. Alvarez, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who had knowingly lied about his military decorations.
Some of us in the free speech community heralded that decision as correct long before Trump was even a consideration for the presidency. The court recognized that criminalizing false statements “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.”
What was most striking about the case was that Xavier Alvarez knew he was lying about the medals. A 6-3 majority, including every liberal justice on the court at that time, ruled that Congress had gone too far in attempting to criminalize lies about one’s military service.
Likewise, Trump might have known that his claims of systemic voter fraud were bogus, yet still believed that a recount could flip the close result. This might be what he meant in his call with Georgia officials in which he stated “I just want to find 11,780 votes, which is one more than we have because we won the state.”
So even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements.
That is why the threshold constitutional claims in this indictment should be addressed by the courts before it goes forward.
The problem could come down to the judge. Even liberal pundits admit that Judge Tanya S. Chutkan, who has used past Jan. 6 cases to vent, is the “worst [judge] Trump could have got.”
Chutkan could effectively certify the deeper constitutional questions and let the parties seek appellate review. Or she could insist that Trump be tried before the constitutional questions are considered. Although the D.C. Circuit is not a friendly court to Trump, the Supreme Court would likely balk at the criminalization of false political speech.
That would mean that Chutkan could force a case to be tried that should not be tried.
And even with a conviction, there would remain a serious threshold constitutional question that is not entirely answered by determining what was in the mind of Donald Trump.
Below is my column in The Hill on how the second indictment of Donald Trump could fail even if Special Counsel Jack Smith could prove that the former president knew that he was lying after the election. Proving his state of mind will be controversial, but, even if successful, it would not necessarily be determinative in the constitutional challenges to come.
Here is the column:
The latest federal indictment of former President Donald Trump was handed down this week with all of the authority of papal infallibility. Pundits lined up to proclaim that case as the greatest prosecution in history.
Former Obama administration acting Solicitor General Neil Katyal even declared that the indictment touched off “the biggest legal case in our lifetimes, perhaps almost ever. It’s up there with cases like Dred Scott, it is up there with Brown v. Board of Education.” What was missing was any serious consideration of the implications of allowing the government to criminalize false statements in a campaign.
Trump was not charged with conspiracy to incite violence or insurrection. Rather, he was charged because he “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.”
In order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected.
The government acknowledges that the Constitution protects false statements made in campaigns, but it insists that Trump must have known that his statements were false and therefore was engaged in fraudulent statements to obstruct or challenge electoral results.
As a threshold matter, one problem is immediately evident.
If Trump actually did (or does) believe that he did not lose the election, the indictment collapses.
And so in an effort to demonstrate his knowledge, the indictment details how many people told Trump that he was wrong about the election and wrong about the law. I was one of those voices.
Trump did not listen to me, most legal analysts or even his White House counsel.
Instead, he listened to a small group of lawyers who assured him that a challenge might succeed and that there was evidence of massive election fraud.
But Trump is allowed to seek out enablers who tell him what he wants to hear. All presidents do this.
(Joe Biden, for example, ignored virtually unanimous legal opinion and relied upon a single law professor’s say-so to justify an obviously unconstitutional executive action that later had to be reversed).
This case, which criminally targets the sitting president’s leading opponent, is much more dangerous because it sets up the federal government as the arbiter of truth.
This indictment essentially charges Trump with not accepting the “truth.”
There is no limiting principle to this indictment.
The government would choose between which politicians are lying and which are lying without cause.
Under our current understanding of free speech, Democrats ranging from Hillary Clinton to Rep. Jamie Raskin (D-Md.) were engaged in protected speech when they called Trump illegitimate and challenged the certification of his win, even though they knew that their challenges were completely meritless. Yet this indictment suggests that Trump engaged (and indeed still engages) in criminal conduct by insisting that the 2020 election was stolen.
Presumably, it also follows that tens of millions of Americans holding that same view are also involved in spreading the same false claims underlying the indictment.
Smith could still secure the cooperation of insiders to support a claim that Trump knew. Many of us have noted the sudden silence of former Chief of Staff Mark Meadows and a couple of former Trump lawyers who do not appear to be among the six referenced criminal co-conspirators. One of those six could also flip and say that Trump said that this was all an undeniable but useful sham.
Yet even assuming Trump knew his claims were false, there would still remain the controversial effort to link his false claims to the actions of others in challenging the election. And even then, there remains the constitutional problem of criminalizing political lies.
In the 2012 decision United States v. Alvarez, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who had knowingly lied about his military decorations.
Some of us in the free speech community heralded that decision as correct long before Trump was even a consideration for the presidency. The court recognized that criminalizing false statements “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.”
What was most striking about the case was that Xavier Alvarez knew he was lying about the medals. A 6-3 majority, including every liberal justice on the court at that time, ruled that Congress had gone too far in attempting to criminalize lies about one’s military service.
Likewise, Trump might have known that his claims of systemic voter fraud were bogus, yet still believed that a recount could flip the close result. This might be what he meant in his call with Georgia officials in which he stated “I just want to find 11,780 votes, which is one more than we have because we won the state.”
So even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements.
That is why the threshold constitutional claims in this indictment should be addressed by the courts before it goes forward.
The problem could come down to the judge. Even liberal pundits admit that Judge Tanya S. Chutkan, who has used past Jan. 6 cases to vent, is the “worst [judge] Trump could have got.”
Chutkan could effectively certify the deeper constitutional questions and let the parties seek appellate review. Or she could insist that Trump be tried before the constitutional questions are considered. Although the D.C. Circuit is not a friendly court to Trump, the Supreme Court would likely balk at the criminalization of false political speech.
That would mean that Chutkan could force a case to be tried that should not be tried.
And even with a conviction, there would remain a serious threshold constitutional question that is not entirely answered by determining what was in the mind of Donald Trump.
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