When Jack Smith announced the latest indictment of Donald Trump this week, the special prosecutor’s language was remarkably clear.
Smith used the phrase “fueled by lies” about Trump’s role in the January 6 riot at the US Capitol. (Trump officially pleaded not guilty today to charges that he conspired to defraud the United States, to disenfranchise voters and to obstruct the post-election transfer of power.)
Smith didn’t hesitate to use the word “heroes” to describe the Capitol police and other law enforcement officials who tried to protect the seat of American democracy. “They are patriots,” he added, “and they are the very best of us.”
And he asked Americans to perform a simple, patriotic act: read the indictment. Those who comply will find equally forthright language there. The indictment – clearly intended for citizens, not just lawyers – does not mince words or pussyfoot.
More importantly, if they followed Smith’s urging, they quickly would find the response to the “free speech” defense that’s getting so much play by Trump’s political and media allies. Those allies are trying to make the case that speech – even false speech – cannot be a crime in America.
“What the government would have to prove in this case, beyond a reasonable doubt, is that speech is not protected by the first amendment, and they’ll never be able to do that,” Trump’s defense lawyer John Lauro said in a CBS News interview.
But the indictment anticipates that argument, and addresses it quickly – on the second page of this 45-page 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,” it acknowledges. It adds that the former president also had the right to challenge the election through legal means like recounts, audits or lawsuits. (Trump, of course, did do these things, to no avail.)
Lying? Sure, that’s within the law. Challenging election results? Legal, too.
But then came the “unlawful” part: not mere words but criminal actions. Specifically, perpetrating conspiracies to discount legitimate votes and subvert the election results. In short, making concerted efforts to prevent the peaceful transfer of power – the very heart of American democracy.
Sorry, but the first amendment is not down with that.
“There is no First Amendment privilege to commit crimes just because you did it by speech,” Samuel Buell, a Duke University law professor who led the justice department’s prosecution of Enron, told the New York Times.
In Buell’s even simpler terms: “Tony Soprano can’t invoke the first amendment for telling his crew he wants someone whacked.”
Examples abound. If you believe that the US currency system is unlawful, then you have a right to go around and tell everybody they have a right to print their own money.
That’s protected free speech.
“But the moment you start printing your own money and putting it into traffic, you are engaging in counterfeiting,” as Democratic Congressman Jamie Raskin told the Washington Post’s Ruth Marcus.
And that’s a crime that the first amendment wants no part in protecting.
You can hear high-pitched and logic-free versions of that defense at nearly every moment on Fox News, which has convinced its viewers that Trump is a victim of a weaponized justice system.
How convinced are they? Very. More than 90% of likely Republican primary voters who rely on Fox as their main news source and who stay away from mainstream media, do not think Trump committed serious crimes, according to one poll taken shortly before the latest legal chapter. Only 5% disagree.
But a jury who takes these charges seriously should be a different matter.
“Jack Smith’s indictment is straightforward and narrow but boy, it packs a punch,” the prominent attorney Neal Katyal said on MSNBC this week. “It’s clean, it’s calculated and I feel like it’s almost certainly going to result in a conviction.”
We won’t know if that’s accurate for many months, despite the prosecution’s obvious intention to put this trial on a fast track.
But if the foundation of Trump’s defense really turns out to be first amendment protection, Katyal’s prediction should be proven right.
A jury, especially a Washington DC jury, surely won’t fail to see a crucial difference.
Protected speech is one thing. Criminal action – conspiring to overthrow an election result – is quite another.
Margaret Sullivan is a Guardian US columnist writing on media, politics and culture
