RUTHFULLY YOURS

Every American’s speech is entitled to First Amendment protection. However, if the Biden administration has its way, that protection does not extend to Donald Trump. With his usual clarity and insight, law professor Jonathan Turley spells out just how foul the Trump indictment really is.

As always, when it comes to the latest Democrat “gotcha” against Trump, this one is stink and dangerous, explains Turley. Hidden behind the legal language and statutory citations is a straightforward effort to punish Trump for daring to speak his mind about the chicanery he (and half of the American voters) perceived in the 2020 election:

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 other words, Trump is being accused of challenging the Democrat establishment’s insistence that it won the election fair and square. Any dissenting views must not only be silenced but must be punished, both to keep Trump off the ballot and as a warning to others.

Image: Donald Trump (edited). YouTube screen grab.

Turley notes that Smith acknowledges that the Constitution protects false statements made in campaigns. To hold otherwise would mean that the government could control speech during campaigns. (And let me add that this lawsuit, to the extent it’s intended to silence Trump about election malfeasance, isn’t just attacking his past behavior, it’s stifling his current speech.)

Despite this acknowledgment, the government then turns around and asserts that, if Trump truly knew that Biden trounced him, he’s guilty of committing fraud to obstruct electoral college results. Turley homes in unerringly on the problem with that charge:

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.)

(Though I respect Turley, he’s wrong. Just listen to the conversation that our Jay Valentine had with Mike Farris to learn about the scale of election fraud. Mike, by the way, is someone you might think about adding to your podcast list.)

The real problem, though, and the reason that we have a First Amendment, is that the DOJ has set the government up as the arbiter of what is true:

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.

Turley notes that the Democrats were protected when they went on and on about “Russia, Russia, Russia,” despite knowing that what they said was untrue. That’s because of the enormous latitude we give to political speech. The rules change for Trump, though:

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.

In this regard, note that a Texas rep has explicitly stated that those Republicans who agree with Trump “are getting dangerously close, in my opinion, to criminal culpability in and of themselves.”

Ultimately, even if one assumes solely for the sake of argument that Trump knew all along that he had lost, Turley explains that, under Supreme Court law, “it is unconstitutional to criminalize lies” when they are tied to political speech. Doing otherwise, said the Supreme Court,

[W]ould 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.

The United States Constitution, glorious though it is, is like Dorothy’s ruby slippers in the Wizard of Oz: it works only if the American people—and their government—believe in it. Once that belief is shattered, it’s just a pretty, old piece of paper. We are very close to being lost in a police-state version of Oz forever unless both an honest court and the American people slap down this kind of despotic overreach.