The filing of criminal charges against a former president for trying to overturn an election is both a cataclysmic historical event and an incredible annoyance to people who respect the truth. Thanks to Donald Trump’s latest indictment, even greater mountains of bullshit will be spread throughout our culture for years and years.
It’s too early to tell what legal strategies Donald Trump’s defense team will try in court to exonerate him, but in the court of public opinion, a weaponized argument is being repeated and refined that contends that the former president has been charged merely for exercising his First Amendment right to free speech.
Here’s how Senator Marco Rubio put it: “Apparently it is now a crime to make statements challenging election results if a prosecutor decides those statements aren’t true.” Senator Tom Cotton made a similar argument on Fox News: “These are all constitutionally protected activities in which former President Trump engaged, political activities and free speech protected by the First Amendment.”
Now that’s bullshit.
Donald Trump was not arrested for questioning the 2020 election
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Whether Trump is judged guilty or was merely engaging in protected “political activity” remains to be seen, but Rubio and Cotton are both attorneys, so they already know that Trump is not being charged with “making statements.” The indictment itself takes great pains to point this out: “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 reads.
Trump (or anyone) is allowed to say “I think the election was rigged”—that’s what the First Amendment is here for, and that’s what Trump did (over and over). Trump is allowed to challenge the results in court too, which he also did (over and over, unsuccessfully). But if Trump took action to “enlist co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 election,” and those co-conspirators likewise took action toward that goal, as is alleged in the indictment, free speech likely isn’t a relevant defense, and won’t be an effective one.
Rubio, et al, are essentially arguing that if a kidnapper writes a ransom note, it’s protected free speech, and that means they’re not guilty of kidnapping. While the First Amendment does give a person to write as many ransom notes as they’d like, once they hold someone against their will and send a note to the family, the message is no longer “free speech.” It’s evidence of the commission of a crime.
What does it mean to enter a conspiracy?
In a broad legal sense, a conspiracy exists when two or more persons join together and form an agreement to violate the law, and then act on that agreement in some way. So if you say to your friend, “Let’s kidnap someone,” and they respond by saying, “great idea!” and then start typing a ransom note and shopping for rope, both of you have likely entered into a conspiracy to commit a crime, even though all you did was talk—even if you don’t eventually commit the crime.
As Ilya Somin, a law professor at George Mason University, told Roll Call, “Trump went beyond simply saying the election was stolen from him. He and his co-conspirators had a specific plan to impede certification of the election…that’s different from the guy who sits on a barstool or even the guy who goes on TV and says, ‘Well, I think the election was stolen.’”
Trump is not being charged with a crime for the speech he gave before the Capitol riot
Before the January 6 indictment was filed, there was speculation that Trump could be charged with incitement—i.e. “the encouragement of another person to commit a crime”—for the speech he gave to his supporters shortly before the Capitol riot. But no charges like that have been filed, perhaps because proving incitement by a political figure who was giving a speech is very difficult. If an incitement charge had been filed, an argument that Trump’s speech was protected by the Bill of Rights would make sense. But as it stands, the First Amendment seems to offer no legal defense for the crimes Trump is being charged with.