There are “legal experts” who have stated definitively — in so many words — that Donald Trump’s First Amendment defense is a pile of horse manure.
“There’s no First Amendment right to participate in a conspiracy,” said Alan Rozenshtein, a University of Minnesota law professor who previously worked in the Justice Department.
That’s probably true. But proving conspiracy in Trump’s efforts to advocate for his “stolen election” beliefs will be the biggest challenge faced by prosecutor Jack Smith. Smith is going to have to prove that Donald Trump knew all along that he lost the election and that his efforts to legally overturn the decision involved a criminal conspiracy.
The left has already forgotten their advocacy to indict Trump for inciting the January 6 riot. In fact, Smith never considered an incitement prosecution because of its obvious First Amendment ramifications.
The rest of Smith’s indictment is equally problematic when considering Trump’s right to free speech.
The Washington Examiner argued as early as Nov. 20, 2020, that it was clear Trump lost and he should concede. That call was renewed on Dec. 15, 2020, after the Electoral College voted for Biden. We warned Trump was endangering his legacy by repeating false claims before Jan. 6, 2021, and we condemned the violence of that day.
But as clear as the evidence was that there was no substantial fraud and that Trump lost the 2020 election, it was also clear that Trump and millions of his followers believed otherwise. Smith has plenty of evidence that Trump was told he was wrong but scant evidence that Trump believed what he was told.
There were 11 Republican senators and senators-elect who signed a joint statement on Jan. 2, 2021, calling for a delay of the Jan. 6 certification to resolve some issues of fraud that were being made by Republicans. Trump endorsed that action, so shouldn’t those 11 lawmakers be charged too?
They weren’t charged because Smith is single-minded in his pursuit of Donald Trump. And that makes this entire prosecution open to charges of bias and partisanship.
Related: Special Counsel Jack Smith Has Done the Job He Was Hired to Do
Defenders of Smith say that Trump’s words aren’t being questioned; his actions are suspect. The alternate electors plan and other legal maneuverings constituted a conspiracy because Trump knew he had lost, the claim.
That is something that Smith is going to have to prove to a jury.
This is nothing more than a political indictment designed to silence dissent from what the powers that be decide is truth. If enough government scientists and officials tell lawmakers that vaccines prevent the spread of a disease or that a virus did not originate in a lab, at what point are lawmakers considered liars if they continue to say they believe otherwise? Smith’s indictment doesn’t say.
These pages have already called on Republicans to reject Trump and choose any other nominee. These pages have also acknowledged that Smith’s earlier indictment has Trump dead to rights on tape admitting to giving damaging classified documents illegally to a reporter. But as badly as many people want Trump to be removed from the political scene, stretching the bounds of conspiracy law in ways that could be used against others to silence dissent is, at best, imprudent.
If this prosecution goes forward, it will become clear that Smith is reaching in trying to pin on Trump a conspiracy charge that he won’t be able to prove.
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