Criminalizing opinions
Jack Smith’s indictment of Donald Trump contains a laundry list of political misconduct. What it doesn’t contain is much evidence of criminal misconduct.
To charge Trump with offenses such as fraud or conspiracy, you must first identify which laws he broke while committing that fraud and engaging in that conspiracy.
Put differently, you can’t get a cumulative criminal charge of fraud and conspiracy by cobbling together, as Smith has, a set of statements and acts which by themselves don’t appear to be actual violations of law (contrary to what many are claiming, it is not illegal, for example, to put forth alternative slates of electors as part of an election contestation).
Indeed, National Review’s Dan McLaughlin (a firm supporter of Trump’s impeachment) notes that the indictment lacks reference to anything resembling “a traditional criminal act” and consequently consists of verbs (“spread lies,” “publicly repeated,” “issued a Tweet,” “called,” “lied to,” “held a meeting,” “publicly maligned,” “re-tweeted,” “encouraged supporters,” etc.) which refer to legal activity.
Smith outlining a series of dubious statements from and obnoxious acts by Trump without pointing out which particular statutes those statements and acts violate suggests a belief that the tawdry nature of Trump’s behavior constitutes criminality by itself.
The indictment essentially says that Trump behaved abominably, so therefore he must have somehow also behaved illegally.
Another problem is that the foundation upon which Smith’s indictment is built (the “truth” that Trump’s alleged lies assaulted) involves an inherently unprovable claim—that absence thus far of evidence of “outcome determinative fraud” somehow makes the 2020 election the “most secure in American history.”
Maybe it was, maybe it wasn’t, but Smith (nor anyone else) is in a position to know this and know it in such a legally momentous sense; the mere assertion is somehow judged sufficient to prove that any disagreement is a lie of criminal nature.
Trump’s claims about the election and Smith’s claims are precisely equivalent, no more no less, in legal terms because each is nothing more or less than “opinion,” and the expression of political opinions, however dubious, constitutes constitutionally protected speech.
What Smith calls a lie, Trump calls the truth, and in a legal sense there is no basis for favoring one over the other (even if Smith’s appears, based on the available evidence, to be on much firmer ground).
Implicit in Smith’s indictment is therefore the noxious idea that the expression of disagreement regarding political issues (in this case the amount of fraud in a particular election) constitutes criminally liable conduct, although it is precisely such disagreement that motivated the behavior of the indicted party and is the point of contention for much of the American public.
This is, in a legal sense, equivalent to “I’m right and you’re wrong because I say so, so off to jail you go.”
More to the point, government doesn’t get to declare what is true regarding controversial political matters and indict those who disagree.
When prosecutors assume the power to simply declare (rather than prove) something to be true, and indict anyone who sees it differently, all of us are in danger of being prosecuted.
As former federal prosecutor T.J. Harker notes, “the indictment presupposes that there was no election fraud. It then characterizes Trump’s contrary assertions from Nov. 14, 2020, through Jan. 20, 2021, as ‘false,’ as though this were self-evident. This is weird. In a fraud trial, the prosecution typically follows a three-step process: prove the truth, prove the defendant knew the truth, prove the defendant lied about it. It’s common sense. How can you prove a lie if you haven’t established the truth? Here, however, Smith skips the first step. …
“From election day through Jan. 20 (and even now), millions believed there was election fraud. This was a grievance held by American citizens, Donald Trump among them. They had the right to assemble and to petition their government to redress their grievances. The First Amendment doesn’t qualify this right by inquiring whether the grievances are sincerely held, or if the grievances are backstopped by evidence, or if the petitioners are being deceitful.”
At the heart of the indictment is thus the idea that elected officials who make what appear to be false statements (according to the arbiter Smith) and engage in political activity (“conspiracy”) based on those statements are guilty of fraud, and thus criminally liable. (Using this standard, how wouldn’t Joe Biden’s efforts to unconstitutionally forgive student loan debt, among many other activities, not also qualify?)
In any event, none of that matters because, even if we accept Smith’s opinion that Trump lied (defined, again, as expressing an opinion different than Smith’s), Trump still has the legal right under the First Amendment to lie about whatever he wishes to lie about when it comes to political matters, just as the rest of us do. And like all other citizens, he also possesses the right to try to persuade others to lie in a manner consistent with his lies.
Smith’s indictment thus criminalizes something—lying—that, unfortunately but inevitably, occurs every day at every level of American politics.
Claiming that an election was stolen without producing evidence to that effect is indeed injurious to democracy.
Putting people in jail for making such claims is even more so.