Trump’s free-speech defense in January 6 case is danger to democracy, experts say

Wednesday, August 16, 2023

Donald Trump’s dubious defense that he was exercising his free-speech rights in response to a four-count federal criminal indictment charging him with pushing illegal schemes to overturn his 2020 election loss is prompting ex-Department of Justice officials and scholars to criticize such claims as bogus and as threats to the rule of law.

Despite special counsel Jack Smith’s detailed 45-page, four-count indictment of Trump for promoting several illegal schemes including organizing slates of fake electors in seven states to thwart Joe Biden’s victory, Trump and some top Republican allies have repeatedly portrayed his multi-pronged drive to stay in power as a free speech matter.

But former justice department officials, scholars and ex-Republican House members say Trump’s actions and schemes went far beyond free speech, and that Trump and his allies are weakening the justice system and could breed new conspiracy theories by making a first amendment defense.

Critics say Trump allies embracing his free-speech claims seem to be trying to cover themselves with the party’s base and to rationalize sticking with Trump, despite the indictment’s sizable body of damning evidence revealing Trump’s active role in unprecedented and illegal ploys to overturn the 2020 result.

The justice department filed a four-count grand jury indictment against Trump on 1 August that charged him with mounting several illegal efforts to stay in office – with help from six unnamed co-conspirators who were not charged – despite his loss to Biden by 7 million votes and no evidence of massive fraud, as Trump has falsely and repeatedly claimed.

After pleading not guilty, Trump used one of his Truth Social posts on 3 August to charge that “the Radical Left wants to Criminalize Free Speech!” and cited comments from Republican allies echoing his claims. Trump’s lawyer John Lauro told CNN on 1 August that the charges against Trump are “an attack on free speech, and [on] political advocacy”.

Justice department veterans say such claims are factually wrong and threaten the integrity of the legal system.

“Trump is deliberately distorting the critical difference between just saying things and actively doing things that have criminal consequences,” said Donald Ayer, a deputy attorney general during George HW Bush’s administration.

“Obviously, he didn’t just talk about the idea that he won the election. The indictment lists several areas of conduct where he conspired and acted repeatedly to alter the outcome of the legitimate voting process that occurred. For Trump or others to now be claiming there is no difference between the two is to once again undermine the very idea that our society is governed by rules that people are required to follow.”

Similarly, ex-federal prosecutors say Trump is playing fast and loose with the facts, and mounting a dangerous defense.

“The indictment highlights how Trump and his co-conspirators relied on speech not just to speak their truth or rally their adherents, but to push hard, behind the scenes, to pressure others into assisting the charged fraud,” said Columbia law professor and former federal prosecutor Daniel Richman.

Richman added: “Trump’s supporters likely know all this, but find it politically useful to wave the first amendment banner. It’s more for the crowds than for a courtroom. But the effect is simply to advance the theme of political victimhood, and undermine trust in the judicial process.”

Trump and his allies have kept up a drumbeat of free-speech claims that seem politically driven in response to Smith’s charges – the third criminal indictment of Trump this year. On Monday, Trump and 18 allies were indicted by a Georgia district attorney on 41 counts that included 13 racketeering, perjury and forgery charges against Trump involving his efforts to overturn his loss.

At his first post-indictment campaign rally in New Hampshire on 8 August, for instance, Trump invoked free speech again.

“They want to silence me because I will never let them silence you,” he said, referring to a recent motion by prosecutors seeking a protective court order to curb Trump from sharing sensitive information about the case which could result in intimidating witnesses.

“They’re not taking away my first amendment rights,” he told the crowd.

The motion by the prosecutors came in the wake of a Truth Social post by Trump warning: “IF YOU GO AFTER ME, I’M COMING AFTER YOU.”

Some top Republican House leaders have embraced Trump’s messaging. To boost Trump’s political and legal fortunes post indictment, Congresswoman Elise Stefanik, the third-ranking party leader, has echoed Trump’s stance. “Trump had every right under the first amendment to correctly raise concerns about election integrity in 2020,” she has said.

Some scholars say that Trump and his allies’ free-speech assertions are dangerous rationales that undermine democratic principles.

“Republicans don’t believe this stuff,” said Steven Levitsky, a Harvard government professor and the co-author of How Democracies Die, referring to Trump’s fallacious free-speech defense.

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“Authoritarian behavior has to be legitimized and dressed up. Either justified by an emergency or a major security threat or justified as technically legal.”

Trump has continued to distort the detailed evidence in the indictment and to use free speech as a cover for his attacks on critics such as former vice-president Mike Pence, whose grand-jury testimony figured prominently in the indictment of Trump and who is expected to be a witness when the case goes to trial.

As the indictment details, Trump tried unsuccessfully to pressure Pence on January 6 to block certifying Biden’s win in Congress, and when Pence balked, Trump exclaimed: “You’re too honest.”

Prosecutors’ motion to get a protective order was spurred by concerns that he might improperly share information about the case, and potentially intimidate witnesses such as Pence, who Trump has condemned as “delusional”.

On Friday, Judge Tanya Chutkan, who is overseeing the latest federal charges against Trump, held a hearing about the prosecutors’ request.

At the hearing, Chutkan said “Trump has [the] right to free speech but that right is not absolute” and that it needs to be balanced with the “orderly administration of justice … If that means he can’t say exactly what he wants to say about witnesses in this case, then that’s how it’s going to be.”

More broadly, ex-Republican House members are voicing strong concerns about Trump and his allies’ distorted free-speech claims.

“Trump has a right under the first amendment to say he was ripped off in the election, even though he was wrong,” said ex-Republican congressman Charlie Dent.

“He does not have a first amendment right to steal an election by pressuring his vice-president to ignore and discount state certified electoral votes, encourage his supporters to storm the Capitol, create a fake elector scheme and intimidate state election officials. He did all this after he exhausted all legitimate legal remedies.”

Dent warned: “Those who continue to enable Trump’s flouting of the rule of law and his reckless disregard for the constitutional order are causing too many of our fellow Americans to lose faith in our republic and the democratic institutions that undergird it.”

Other ex-Republican members see dangers from Trump and his allies’ tactics.

“The GOP has historically been the law and order party, but I think their new strategy for retaking the House is to exacerbate the narrative that DoJ and the courts are biased and corrupt,” former Republican congressman Dave Trott said.

For Harvard’s Levitsky, the real issue is “Republicans’ acquiescence to authoritarianism. Nobody believes conspiracy to commit a crime is free speech. It’s what they say because they can’t say they support Trump, despite the fact that he is a criminal and an authoritarian.”

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