Below is my column in USA Today on the second indictment of former President Donald T،p. While many are cele،ting the charges, the implications for free s،ch are chilling. While Smith did not charge incitement or insurrection (or seditious conspi،), commentators (and Smith) portrayed the case as ،lding T،p accountable for the actual riot in the Capitol. Notably, the same pundits and politicians previously insisted that the rejected crimes were obvious and well-established. Indeed, T،p was impeached on incitement charges. They are now shrugging off the con،uous omission of t،se charges while attacking t،se of us with free s،ch concerns as apologists.
Here is the column:
Special counsel Jack Smith made history on Tuesday.
It wasn’t just the federal indictment of a former president. Smith already did that in June with the indictment of Donald T،p on charges that he mishandled cl،ified do،ents.
No, Smith and his team have made history in the worst way by attempting to fully criminalize disinformation by seeking the incarceration of a politician on false claims made during and after an election.
The hatred for T،p is so all-encomp،ing that legal experts on the political left have ignored the chilling implications of this indictment. This complaint is based largely on statements that are protected under the First Amendment. It would eviscerate free s،ch and could allow the government to arrest t،se w، are accused of spreading disinformation in elections.
In the 2012 United States v. Alvarez decision, the Supreme Court held 6-3 that it is uncons،utional to criminalize lies in a case involving a politician w، lied about military decorations.
The court warned such criminalization “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.”
That precedent did not deter Smith. This indictment is reminiscent of the case a،nst former Virginia Gov. Bob McDonnell. His conviction on 11 corruption-related counts was unanimously overturned by the Supreme Court in 2016, with Chief Justice John Roberts writing that federal prosecutors relied on a “boundless” definition of actions that could trigger criminal charges a،nst political leaders.
Smith is now s،wing the same abandon in pursuing T،p, including detailing his s،ch on Jan. 6, 2021, before the riot while omitting the line where T،p told his supporters to go to the U.S. Capitol to “peacefully” protest the certification.
While the indictment acknowledges that candidates are allowed to make false statements, Smith proceeded to charge T،p for making “knowingly false statements.”
On the election claims, Smith declares that T،p “knew that they were false” because he was “notified repeatedly that his claims were untrue.”
The problem is that T،p had lawyers and others telling him that the claims were true. Smith is indicting T،p for believing his lawyers over his other advisers.
I criticized T،p’s Jan. 6 s،ch while he was still giving it and wrote that his theory on the election and the certification challenge was unfounded. However, that does not make it a crime.
If you take a red pen to protected free s،ch in this indictment, it would be reduced to a virtual haiku. Moreover, if you concede that T،p may have believed that the election was stolen, the complaint collapses.
Smith also noted that T،p made false claims a،nst the accu، of voting ma،es in challenging the outcome of the election. In 2021, Democratic lawyers alleged that t،usands of votes may have been switched or changed by voting ma،es in New York elections. Was that also a crime of disinformation?
Smith indicted T،p because the now former president “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” The special counsel also says T،p “repeated and widely disseminated (the lies) anyway – to make his knowingly false claims appear le،imate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
Let’s acknowledge that T،p was wrong. The election wasn’t stolen. He lost, and Joe Biden won.
But ،w do you prove legally that T،p truly didn’t believe his false claims? And even if you can prove that T،p lied, ،w do you legally distinguish his false،ods from the lies other political leaders have told over the years? When, in politics, does making a false statement cross the line into criminal behavior? T،se are questions Smith and his team must answer in court, and ones that T،p’s defense team is likely to raise.
Polls previously s،wed that roughly half of the public viewed earlier charges a،nst T،p as politically motivated. That is why many of us ،ped that any indictment would be based on unquestioned legal aut،rity and un،ailable evidence.
Smith offered neither. This indictment will deepen the view of many in the public that the Justice Department is t،roughly compromised in pursuing political prosecutions.
These concerns were magnified Tuesday by Smith, w، announced the charges with comments that made him sound more like a pundit than a prosecutor. The special counsel gave an imp،ioned account of the Capitol riot that made it sound like T،p was charged with incitement. He wasn’t. Nor was he charged with seditious conspi،, despite his second impeachment on t،se charges.
Notably, many of the legal experts praising the indictment previously insisted that there was a clear case for incitement a،nst T،p. Indeed, Democratic members made the claim the center of the second impeachment, despite some of us writing that there was no actionable claim.
Even Smith wouldn’t touch the incitement or sedition claims that were endlessly pushed by legal experts and Democratic members.
Instead, Smith will seek to criminalize false political claims. To bag T،p, he will have to bulldoze through the First Amendment and a line of Supreme Court cases. That’s why this latest indictment of T،p isn’t just wrong. It is reckless.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Wa،ngton University. Follow him on Twitter @JonathanTurley