Former President Donald Trump is testing out a new defense in the Georgia election racketeering case, reported The Atlanta Journal-Constitution on Monday: the First Amendment.
"In a filing on Monday in Fulton County Superior Court, Trump attorney Steven Sadow said the former president will challenge his indictment on racketeering, conspiracy and other charges by asserting his right to political speech and expressive conduct," reported David Wickert.
He noted that "Trump relied on numerous false claims of voting fraud as he tried unsuccessfully three years ago to convince the Georgia General Assembly and Vice President Mike Pence to overturn Democrat Joe Biden’s narrow victory," and the current charges against him allege these efforts amount to an organized criminal enterprise under Georgia law.
Unfortunately for Trump, argued Georgia State law professor and political scientist Anthony Michael Kreis, that defense is likely to fall flat.
"This is an argument [that] won’t carry water. The First Amendment does not shield acts of corruption. Trump could have complained about the election or made false allegations about the outcome all he wanted. He had no free speech rights to initiate *acts* to overturn the election," wrote Kreis.
That argument could defend him against arguments that he incited the January 6 attack, Kreis continued — but it doesn't really defend the concrete plans he allegedly made to have votes thrown out.
"There is a critical distinction between airing false grievances to the public and submitting materially false information to official governmental entities to induce them to act corruptly. That is not protected speech. It is unlawful fraud, if proven," Kreis continued. "This would be the functional equivalent of letting a hopeful bank robber enter a bank, pretend to assert a lawful claim to monies held in a bank account, and walk away from the attempted fraudulent act without culpability because it was only speech and the criminal act failed."
All of this unfolds as Trump simultaneously faces a separate criminal case about his efforts to overturn the election, filed in Washington, D.C. by special counsel Jack Smith. That case is currently entangled in a fight over a gag order imposed on the former president, currently on hold pending a decision by the D.C. Court of Appeals.
