The gist of this column is so easy to comprehend that even MAGA dolts should be able to grasp it: The First Amendment does not protect criminal behavior.
What a disgrace it was, last night on CNN, to hear the criminal defendant’s latest lawyer, some guy named John Lauro, attempt to wrap his client in the Constitution. Responding to the new federal indictment, which nails Trump for trying to sabotage the free and fair 2020 election, Lauro said it was unfair to charge the poor guy with four felonies: “This is an attack on free speech. (Trump) had every right to advocate for his position while he was president. He saw irregularities, he saw deficiencies in the voting process…He had every right, in fact a responsibility, as a United States president, to raise those issues and now his advocacy is being criminalized.”
Expect to hear that crock when Trump goes on trial in Washington, this notion that he’s being persecuted for merely speaking his mind. The problem is, Jack Smith blew it out of the water in his new indictment:
“The defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” Trump had a constitutional right to tell his “prolific lies” – falsely claiming, for instance, that “there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden.” All those lies were covered by the First Amendment.
But Trump did not have the right to convert free speech to criminal action. Flapping his yap was fine; yapping for the purpose of plotting a coup was way over the line. He did not have the right to weaponize his lies to overthrow democracy.
In the words of the indictment, it’s illegal to use “false claims of election fraud to obstruct the federal government function by which (votes) are collected, counted, and certified.” Lying with impunity is protected by the Constitution, but not when those lies morph into criminality – “discounting legitimate votes and subverting the election results.” It’s not OK to act on those lies to the point of pressuring state officials to ignore the will of the voters, plotting to organize fake slates of electors in swing states like Pennsylvania, and pressuring the vice president to sabotage the ceremonial certification of the election.
Indeed, Trump’s lies, and his actions on behalf of those lies, were two sides of the same coin. As the indictment says, “The defendant’s knowingly false statements were integral to his criminal plans.”
Ex-Attorney General Bill Barr, the erstwhile Trump lackey who’s now trying to salvage his reputation, said it well last night: “Free speech doesn’t give you the right to engage in a fraudulent conspiracy.” But a former federal prosecutor, Samuel Buell, says it better: “There is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts. Tony Soprano can’t invoke the First Amendment for telling his crew he wants someone whacked.”
(And since we’re talking here about constitutional protections, here’s another: You have the all-American right to own a gun. You do not have the right to use that gun to rob a bank.)
Trump is totally entitled to push his “free speech” defense in court, as part of his quest to become the first serially-accused criminal to sit in the White House, and criminal defense attorney Lauro is on board -for now, anyway – to abet that mendacious mission. He sought last night to wrap Trump in the flag, along with the rest of us: “This (new indictment) is unprecedented. It affects not just Donald Trump – it affects every American who now realizes that the First Amendment is under assault.”
Yeah right, because every American who lies pathologically in furtherance of a fascist plot is also under assault. If a decisive share of the electorate buys that grift next November, we’ll get the dystopia we deserve.