Trump’s “Free Speech” Defense Is A Sham

Image by Woody Harrington for NBC News

The second federal indictment had been out less than a day before Trump’s lawyer and his acolytes in Congress took their new message to their base: The new charges were an assault upon the ex-president’s “free speech” rights. 

Trump’s lawyer John Lauro claimed on CNN on Wednesday, “[O]ur focus is on the fact that this is an attack on free speech, and political advocacy. And there’s nothing that’s more protected, under the First Amendment, than political speech.” He continued, “So, at the end, our defense is going to be focusing on the fact that what we have now is an administration that has criminalized the free speech, and advocacy, of the prior administration, during the time that there is a political election going on.”

Not the most articulate speaker, but okay.

Lauro was more inflammatory during his appearance on Fox on Wednesday, claiming the indictment affects “every American who now realizes the First Amendment is under assault” and adding that “if a president can be indicted for free speech, then anyone can be indicted.”

Republican leaders have begun to echo this. “Today is yet another dark day in America as Joe Biden continues to weaponize his corrupt Department of Justice against his leading political opponent Donald J. Trump,” Rep. Elise Stefanik (R-NY), the third highest ranking member of the House GOP caucus, declared in a statement. “President Trump had every right under the First Amendment to correctly raise concerns about election integrity in 2020.”

From this we can gather what Trump’s apparent defense will be. He has the right to free speech, and he was only saying out loud what he, along with millions of misled Republican voters, believes inside his heart about the election: that it was stolen via a multi-state conspiracy aided by Venezuelan software on Dominion Voting Systems machines, etc. etc. etc.

So, how strong an argument is this? It’s too soon to tell whether it will resonate in the court of public opinion, especially among independents. But in a court of law in D.C., where Trump could find himself sometime next year standing trial, it isn’t likely to succeed. 

Let’s break down why that is. But first, let’s look at how the indictment itself predicted this very argument and shaped the charges in order to head it off.

Indictment: Trump had a First Amendment right to lie, but not to commit crimes

In fairness to MAGA, you have to go really far into the indictment—all the way to the third paragraph on page 2–to get to this very point. Here’s what Jack Smith’s grand jury sent up in the indictment:

The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful. (Emphasis added.)

In other words, speak all you want. Say what you will generally about the election, make all the claims you feel you’re entitled to make, even false ones. But here’s the thing: Don’t use your words to break the law or induce others to commit crimes.

The next part, in Paragraph 4, makes this abundantly clear:

Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results.

It then lists the three conspiracies for which Trump stands accused: conspiracy to defraud the United States, conspiracy to obstruct Congress, and conspiracy against the rights of millions to have their votes counted. 

Otherwise put, the indictment isn’t charging Trump for speaking lies about the election. The indictment is charging him for taking part in three unlawful conspiracies that used those lies to try and overturn the 2020 presidential election results.

And that’s a big difference.

“All fraud involves speech. All conspiracies involve speech.”

It feels strange to quote former Attorney General Bill Barr here, but that was his hot take during an interview on CNN on Wednesday when he was asked about Trump’s expected free speech defense.

And he’s correct.

Think of it this way. Anyone is free to say on social media, or shout in a public square, “Banana peels cure cancer!” It’s not true, but there’s no law against saying it. 

But when does that “free speech” veer into the illegal? If you promote your product in the market, and you include fake “studies” that falsely show that banana peels cure cancer, you are committing fraud. And that is decidedly not protected speech. 

To commit the fraud, you had to have made a knowing misrepresentation, in this case to a customer or potential customer, causing them injury in some way. Maybe they bought and used your product and it didn’t work, because after all, your studies are fake and your statements are false.

That’s why no one could successfully argue that fraud is protected speech. Lying to steal a customer’s money is fraud. And yes, lying to steal an election is, too.

Let’s look also at conspiracy. Every conspiracy involves some kind of illegal plan, which means someone at some point talked or wrote to another person about that plan. At this point, that’s still just speech, even if the plan itself is illegal. 

“Let’s break into the DNC offices,” for example, is an illegal plan, but merely saying that to someone else isn’t a crime. It’s protected speech…until the moment someone who has agreed to the plan takes an action in furtherance of the scheme. Then it’s a conspiracy, and it’s illegal.

“There is no First Amendment privilege to commit crimes just because you did it by speaking,” Professor Samuel W. Buell of Duke University School of Law has pointed out succinctly. And as I discuss below, an individual’s rights to “free speech” generally end as soon as those words become actual evidence of criminality. 

Soliciting others to commit crimes is not protected speech

This should feel obvious in the larger sense. If I ask you if you want to buy illegal drugs from me, I don’t get to hide behind “free speech” and say I had a right to say that. The solicitation itself was a crime. That’s why in 2008, in the case of United States v. Williams, the Supreme Court held that “offers to engage in illegal transactions are categorically excluded from First Amendment protection.” 

That is kind of a no-brainer, but look at what Trump is trying to argue. He claims that his phone call to Georgia Secretary of State Brad Raffensperger, in which he pressured him to “find” 11,780 votes—just one more than he needed to win—is somehow protected speech. But in fact it’s a solicitation to commit election fraud, which is decidedly not protected speech.

Trump also claims that he had a right to help organize fake electors, gathering them in secret and having them sign fake certifications under oath, because this is somehow free speech, too. But it’s not. These were concrete actions in furtherance of an illegal conspiracy, fed by his election lies. He and the six unnamed co-conspirators told these GOP officials in seven states what illegal acts they should do and how they should do them. Those communications are not protected speech. They are instructions on how to commit fraud.

And take his statements to Mike Pence. Trump wants to argue that his pressuring Pence to participate in a soft coup, as laid out in the Eastman memo, was also protected speech. But again, it’s not. It’s solicitation to commit a crime, in this case a violation of the Electoral Count Act as part of a conspiracy to defraud, to obstruct Congress, and to deprive voters of their votes. Trump doesn’t get to hide behind “free speech” when he’s talking about asking Pence to help him commit crimes.

If Trump knew his speech was false, it’s far less protected

There’s a separate line of defense that Trump will try to pursue. His lawyers believe that the government must prove beyond a reasonable doubt that Trump knew his claims of a stolen election were false in order to show that he had the requisite intent to commit the crimes in the indictment. 

But this is wrong out the gate. If you are soliciting someone to commit a crime—e.g. “find” me 11,780 votes, sign these false electoral certifications, violate your constitutionally designated duties—it really doesn’t matter whether you knew you were telling lies to support it. You are still pressuring people to commit illegal acts.

Attorney Marc Elias of Democracy Docket explained this perfectly in an interview with Popular Info:

I walk into a bank, and I think they are wrongfully holding my money. I think my balance is $5,000, and they think my balance is zero. And I genuinely believe that I am owed $5,000. That doesn't excuse me from robbing the bank. I can't pull out a gun and take the money. Particularly with the fake electors scheme, even if you believed that you won, you were not entitled to have people submit fake forms on January 6.

Trump’s subjective knowledge that the election was not in fact stolen therefore isn’t even relevant to what’s being charged. But even if it were, there’s plenty of evidence, laid out in the indictment, that Trump knew he was lying. After all, he was told by everyone—at least, everyone who wasn’t a co-conspirator—that the stolen election claims were bogus. The indictment lists eight examples in paragraph 11:

• His own Vice President

• Senior leaders of the Justice Department

• The Director of National Intelligence

• The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency

• Senior White House Attorneys

• Senior staffers on his re-election campaign

• State legislators and officials

• State and federal courts

Jack Smith and his team likely will call many of these folks—all of whom are Republicans—as key witnesses who can attest to Trump’s knowledge.

And even if the Justice Department can’t show he actually knew, because it’s pretty hard to show what’s really inside someone’s head, especially one as bizarre as Trump’s, they can show that he was willfully blind to the truth. And that’s enough to pass legal muster.

So who will Trump call to the stand? Sidney Powell? Rudy Giuliani? The My Pillow guy? It’s hard to imagine any of these people would take the stand and not plead the Fifth. And in any event, both Powell and Giuliani have already admitted in other court cases that they spread election lies, so they would be impeached fairly easily.

It’s likely in my mind that Judge Chutkan will leave the question of Trump’s First Amendment defense to the jury, rather than ruling from the bench to prevent Trump from even raising it as a matter of law. This would leave far less of a chance of reversal on appeal.

And for the above reasons, I am skeptical that Trump can put together a defense based on his First Amendment rights that will somehow absolve him of all guilt. As I hoped to show above, the line between free speech and fraudulent/criminal speech is a fairly easy one to understand and draw, once it’s displayed in a clear way.

Let’s hope the jury agrees.