Donald Trump’s defenders in the aftermath of his indictment on allegations he tried to overturn the 2020 election are claiming First Amendment protections shield the former president from legal jeopardy, but legal experts call the strategy dubious, The New York Times reports.
Special counsel Jack Smith’s indictment against Trump alleges that the former president pushed claims that the 2020 election was stolen even though he “knew that they were false.”
Michael S. Schmidt and Maggie Haberman write for The Times that Trump’s defender’s claim the former president “had every right to express views about election fraud that they say he believed, and still believes, to be true, and that the actions he took or proposed after the election were based on legal advice.”
“The indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called ‘pervasive and destabilizing lies’ from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.”
The report notes that it will be left to a judge and jury to determine how to resolve these divergent assertions. Trump’s defenders in the aftermath of the indictment have come out swinging.
“So the First Amendment protects President Trump in this way: After 2020, he saw all these irregularities, he got affidavits from around the country, sworn testimony, he saw the rules being changed in the middle of the election process — as a president, he’s entitled to speak on those issues,” Trump attorney John Lauro said on Wednesday during a CBS News interview.
"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.”
The report notes that legal experts say an “individual’s free-speech rights essentially end as soon as those words become evidence of criminality.
One legal expert suggested the strategy is more likely to resonate in political than legal circles.
Duke University law professor Samuel W. Buell said that it “won’t work legally but it will have some appeal politically, which is why he is pushing it.”
“There is no First Amendment privilege to commit crimes just because you did it by speaking,” Buell told The Times.
Buell said that “there is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts.”
