Conservative Claims that Trump's January 6 Actions Were Protected Political Speech Are Unconvincing

At the heart of Jack Smith's indictment is an illegal scheme to reverse the 2020 election

Trump’s main line of defense to the charges in the indictment issued by Special Counsel Jack Smith last week is that his actions were protected First Amendment speech and political activities. This concept fits into the meta-narrative that has been pushed by populists and GOP activists that liberals and Democrats are corruptly using the government and corporate power to suppress conservative ideas and values. While this defense might have political resonance for Trump as he continues to fight for the GOP nomination, most experts don’t seem to believe it will have much success in court. As Trump’s former Attorney General William Barr succinctly put it, “free speech doesn’t give you the right to engage in fraudulent conspiracies.”

But I want to delve more deeply into this claim since both the Wall Street Journal and National Review are advancing this argument, not just Trump’s defense lawyers and sycophants on Capitol Hill. The Journal’s concern is that the indictment criminalizes actions taken to advance lies, which it claims “criminalizes many statements and actions of a President” and gives prosecutors too much power over what an elected official can say or do. The Journal editorial frets that politicians who are challenging election results will be inappropriately constrained by fear of legal liability. Similarly, the National Review claims that the indictment is based solely on “mendacious rhetoric” and argues that “hyperbole and worse” are protected political speech. The National Review’s also challenges the charge that Trump criminally obstructed the process for certifying the election results. Its’ editorial claims that Trump had a right to “attempt to influence Congress” to reject the official electoral college vote count, even on “dubious or imagined evidence.” The totality of the indictment, the National Review argues, is an attempt to punish “objectionable political conduct” in a way that undermines the rule of law.

These arguments raise legitimate concerns, but they are wildly divorced from the facts of this case and the conduct that the special counsel says violated the law. At no point does the special counsel claim that Trump violated the law just by making public statements about the election, claiming the election was fraudulent, or pressuring individuals do something they had the legal right to do. Rather, the indictment charges that Trump took a series of actions to manipulate the presidential election system to reverse the result that proper application of electoral law required. In numerous instances detailed in the indictment, Trump and his co-conspirators used false information to develop, and then to convince others to participate in, an illegal scheme to change the election results. 

This is not normal political activity – it is fraud on the government of the United States and the American people.

Here are key details from the five narratives the indictment advances:

First, the indictment charges that Trump urged officials in five states that he had lost to alter the lawful election results based on entirely unsubstantiated voting irregularities. In some states, he urged state officials to support electoral college delegates pledged to vote for him instead of Biden. In others, he and his co-conspirators requested that legislators “decertify” electors that had already been pledged to Biden. In Georgia, he famously pressured the Secretary of State to “find votes” for him that would change the already certified official vote count. In most of the examples in the indictment, the requests to state officials took place after lawsuits alleging voter fraud had been thrown out of court . The common thread in these allegations is that Trump was pressuring officials to take actions outside their lawful authority. In essence, as the Speaker of the Arizona House of Representatives said, Trump was demanding that state officials “violate … the basic principles of republican government and the rule of the law.” (Indictment Paragraph 17).

Second, the indictment claims that Trump and his co-conspirators directed a plot to transmit to Congress slates of fake electors from seven closely contested states. The individuals on these slates purported to be members of the electoral college entitled to vote but, in fact, had no lawful status whatsoever. The indictment charges that Trump ordered the Chair of the Republican National Committee to assist his campaign in advancing this scheme (Indictment Paragraph 56), requested his campaign to put out a statement promoting the validity of the fake electors (Indictment Paragraph 63), and “directed” the fake electors to meet in their states on the legally required date to cast sham electoral college ballots for him (Indictment Paragraph 66).  

Third, the indictment claims that Trump ordered officials in the Department of Justice to issue statements that the “election was corrupt” even though their investigations had uncovered no significant fraud. He also worked with Acting Assistant Attorney General Jeffrey Clark to advance the fake electors scheme. Clark proposed to Trump that DOJ issue a letter to officials from the contested states asserting that the Department of Justice had “significant concerns” about fraud in the election, noting that “two valid slates of electors” had been transmitted to Congress from each state, and urging the states to convene a legislative session to choose between the two slates of electors (Indictment Paragraph 75). When the top officials at Justice refused to issue a letter that they believed was blatantly false and unlawful, Trump allegedly fired his Attorney General at the time and appointed Clark to become the Acting Attorney General so the letter would be issued. (Indictment Paragraph 80). Trump backed down from this part of the scheme after numerous officials, including his White House Counsel, threatened to resign in protest.

Fourth, the special counsel claims that Trump pressured Vice President Pence on multiple occasions to participate in the fake electors scheme by demanding Pence use his constitutional role in the electoral vote counting process to reject electoral votes for Biden or take send the issue back to the contested states to choose between the two slates of ballots (Indictment Paragraph 90). Trump is also accused of arranging to have a U.S. Senator deliver documentation regarding the false elector slates to Pence at the Capitol (Indictment Paragraph 101).

Finally, Trump and his co-conspirators are charged with advancing the criminal scheme to change the election result by calling Senators following the Capitol riot asking them to further delay the certification of the electoral college results (Indictment Paragraph 119).  

It is true that the indictment contains statements that Trump had a constitutional right to make. And I would concede that the final claim regarding Trump’s calls to legislators to ask them to delay the final certification of the vote seems more like desperate lobbying to stave off electoral defeat rather than criminal scheming.

But it is wrong to conclude that the actions Trump allegedly engaged in were constitutionally protected or examples of normal presidential cajoling of state and executive branch officials. It is not normal to pressure state officials to act illegally. It is not normal to demand that government attorneys make knowingly false statements and participate in a scheme to violate federal law. And it certainly is not normal to create an entirely bogus slate of electors, try to convince state officials and federal lawmakers that they are real, and involve state legislators, the Justice Department and the Vice President in a scheme to count the bogus electors instead of the real ones.

If Smith can prove his case – he will establish that Trump and his cronies devised and tried to execute an illegal plan to reverse the 2020 presidential election.

Conservatives can huff and puff about protected speech, but this is a crime, plain and simple.