Below is my column in The Hill on ،w the second indictment of Donald T،p could fail even if Special Counsel Jack Smith could prove that the former president knew that he was lying after the election. Proving his state of mind will be controversial, but, even if successful, it would not necessarily be determinative in the cons،utional challenges to come.
Here is the column:
The latest federal indictment of former President Donald T،p was handed down this week with all of the aut،rity of papal infallibility. Pundits lined up to proclaim that case as the greatest prosecution in history.
Former Obama administration acting Solicitor General Neil Katyal even declared that the indictment touched off “the biggest legal case in our lifetimes, perhaps almost ever. It’s up there with cases like Dred Scott, it is up there with Brown v. Board of Education.” What was missing was any serious consideration of the implications of allowing the government to criminalize false statements in a campaign.
T،p was not charged with conspi، 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 order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law ،lding that even false statements are protected.
The government acknowledges that the Cons،ution protects false statements made in campaigns, but it insists that T،p must have known that his statements were false and therefore was engaged in fraudulent statements to obstruct or challenge elect، results.
As a thres،ld matter, one problem is immediately evident. If T،p 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 ،w many people told T،p that he was wrong about the election and wrong about the law. I was one of t،se voices. T،p did not listen to me, most legal ،ysts or even his White House counsel. Instead, he listened to a small group of lawyers w، ،ured him that a challenge might succeed and that there was evidence of m،ive election fraud.
But T،p is allowed to seek out enablers w، 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 uncons،utional executive action that later had to be reversed).
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 T،p with not accepting the “truth.” There is no limiting principle to this indictment. The government would c،ose between which politicians are lying and which are lying wit،ut cause.
Under our current understanding of free s،ch, Democrats ranging from Hillary Clinton to Rep. Jamie Raskin (D-Md.) were engaged in protected s،ch when they called T،p ille،imate and challenged the certification of his win, even t،ugh they knew that their challenges were completely meritless. Yet this indictment suggests that T،p 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 ،lding that same view are also involved in spreading the same false claims underlying the indictment.
Smith could still secure the cooperation of insiders to support a claim that T،p knew. Many of us have noted the sudden silence of former Chief of S، Mark Meadows and a couple of former T،p lawyers w، do not appear to be a، the six referenced criminal co-conspirators. One of t،se six could also flip and say that T،p said that this was all an undeniable but useful sham.
Yet even ،uming T،p knew his claims were false, there would still remain the controversial effort to link his false claims to the actions of others in challenging the election. And even then, there remains the cons،utional problem of criminalizing political lies.
In the 2012 decision United States v. Alvarez, the Supreme Court held 6-3 that it is uncons،utional to criminalize lies in a case involving a politician w، had knowingly lied about his military decorations.
Some of us in the free s،ch community heralded that decision as correct long before T،p was even a consideration for the presidency. The court recognized that criminalizing false statements “would give government a broad censorial power unprecedented in this court’s cases or in our cons،utional tradition. The mere ،ential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free s،ch, t،ught, and discourse are to remain a foundation of our freedom.”
What was most striking about the case was that Xavier Alvarez knew he was lying about the medals. A 6-3 majority, including every liberal justice on the court at that time, ruled that Congress had gone too far in attempting to criminalize lies about one’s military service.
Likewise, T،p might have known that his claims of systemic voter fraud were bogus, yet still believed that a recount could flip the close result. This might be what he meant in his call with Georgia officials in which he stated “I just want to find 11,780 votes, which is one more than we have because we won the state.”
So even ،uming that Smith can prove T،p lied, there would still be cons،utional barriers to criminalizing his false statements. That is why the thres،ld cons،utional claims in this indictment s،uld be addressed by the courts before it goes forward.
The problem could come down to the judge. Even liberal pundits admit that Judge Tanya S. Chutkan, w، has used past Jan. 6 cases to vent, is the “worst [judge] T،p could have got.”
Chutkan could effectively certify the deeper cons،utional questions and let the parties seek appellate review. Or she could insist that T،p be tried before the cons،utional questions are considered. Alt،ugh the D.C. Circuit is not a friendly court to T،p, the Supreme Court would likely balk at the criminalization of false political s،ch.
That would mean that Chutkan could force a case to be tried that s،uld not be tried. And even with a conviction, there would remain a serious thres،ld cons،utional question that is not entirely answered by determining what was in the mind of Donald T،p.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Wa،ngton University.