Fear not, the right to lie is safe
As soon as Donald Trump was indicted last week on federal conspiracy charges for his bid to steal the 2020 election, his lawyer alleged that the charges infringed upon his client’s right to free speech.
“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 a prior administration during the time that there’s a political election going on. That’s unprecedented,” said defense attorney John Lauro.
A parade of Republicans came forward to fret about how the right to lie was under attack.
Congressman Gary Palmer of Alabama lamented the “criminalization of disinformation and misinformation,” which to be fair, are indispensable political tools for Republicans.
Fear not, America, the right to lie is secure.
As the indictment makes clear, Trump has every right to run his mouth in public, even to lie about election fraud.
What matters is the corrupt agreement that Trump and his confederates allegedly acted on in a bid to reverse his electoral defeat.
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The indictment alleges that the former president conspired to pervert the federal government’s administration of the 2020 election and to derail the certification ceremony on January 6, 2021; and that if his plot had succeeded, it would have deprived millions of voters of their right to have their votes counted.
While the indictment provides overwhelming evidence that Trump knew (or should have known) that his claims of outcome-altering fraud were bogus, that was just one dishonest facet of an alleged scheme that was rotten to its core.
This is a nation of laws. If you think an election was stolen, you take that up with election officials and the courts, and you abide by their determinations. You don’t conspire to falsify legal documents and intimidate elected officials into counting the fakes over the genuine articles. Which is exactly what Trump is alleged to have done through the fake elector scheme.
The fake electors' scam is the base of the indictment pyramid, and the other allegations stack on top of it. The “wild protest” and the intimidation campaign of J6 was a bid to force Pence to count the fake electoral votes and disregard the real ones. The indictment also alleges that Trump pressured the Department of Justice to proclaim that the fake electors’ slate from Georgia was real.
Donald Trump and his co-conspirators recruited GOP loyalists in seven battleground states to pose as electors and cast fake electoral votes. Trump then tried to browbeat vice president Mike Pence into counting their fake electoral votes instead of the real ones. When he couldn’t convince Pence to play along, he turned the mob on the Capitol to physically intimidate Pence. The VP was whisked from the Capitol just ahead of a mob chanting “Hang Mike Pence!”
The indictment alleges that the conspirators lied to the fake electors, promising them that their “votes” would only be counted if a court reversed the outcome of the election in their state. In fact, the courts reversed bupkis, but the conspirators submitted these fraudulent certificates anyway and tried to strongarm Mike Pence into counting them during the certification. It is fraudulent to forge legal documents and submit them to the federal government, whether you think there was election fraud or not.
The indictment alleges that one of Trump’s co-conspirators acknowledged in writing that in many states these fake electors couldn’t fulfill the legal requirements for how and where to cast electoral votes, but the conspirators knowingly submitted those defective certificates anyway.
Trump may try to fall back on an “advice of counsel defense,” claiming that his lawyers told him that the plot was legal. But that’s going to be an uphill battle because John Eastman, Rudy Giuliani, Sidney Powell and Kenneth Chesboro are Trump’s alleged co-conspirators. You can’t just add a lawyer to your conspiracy and make everything legal.
As former federal prosecutor Mary McCord told The New Yorker, “A lawyer who is part of the conspiracy himself will cause an advice-of-counsel claim to falter.”
Furthermore, the indictment is full of examples of Trump’s Co-conspirators at Law admitting that aspects of their scheme were illegal.
For example, Eastman admitted to Mike Pence’s lawyer that the Supreme Court would unanimously reject his plan. He later asked the lawyer to indulge him in just one more violation of the Electoral Count Act. Even the so-called Eastman Memo – which Trump’s lawyer is waving as a get-out-of-jail-free card – acknowledges in passing that certain aspects of the plan violate the Electoral Count Act.
Trump’s lawyer is wrapping his client in the mantle of free speech because he has no other defense. Jack Smith’s indictment is full of damning evidence of conspiracy and obstruction and the advice of counsel is dead in the water. This case is about what Trump did, not what he said. The former president is standing trial for his actions, not his words.
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