Experts Caution Trump’s January 6 Free-Speech Defense Could Pose Risks to Democracy

Experts Caution Trump's January 6 Free-Speech Defense Could Pose Risks to Democracy

Ex-president and allies frame efforts to remain in power as a free speech issue; however, former DOJ officials express concern that his actions exceeded this boundary.

Donald Trump’s claim that he was merely exercising his free-speech rights in light of the four-count federal criminal indictment accusing him of promoting illegal schemes to overturn his 2020 election loss has raised concerns among former Department of Justice officials and scholars. They view such assertions as unfounded and potentially harmful to the rule of law.

Even in the face of special counsel Jack Smith’s comprehensive 45-page, four-count indictment, which accuses Trump of endorsing multiple illegal strategies such as coordinating sham elector slates in seven states to challenge Joe Biden’s win, Trump and several prominent Republican allies continue to frame his extensive efforts to retain power as an issue of free speech.

However, former justice department officials, scholars, and ex-Republican House members express concern that Trump’s actions and plans surpassed the boundaries of free speech. They warn that by invoking a First Amendment defense, Trump and his allies might be undermining the justice system and potentially giving rise to fresh conspiracy theories.

Critics believe that Trump allies who support his free-speech assertions appear to be aligning with the party’s core supporters and justifying their loyalty to Trump, even in the face of the indictment’s substantial evidence showcasing Trump’s direct involvement in unique and unlawful strategies to challenge the 2020 outcome.

On August 1, the justice department presented a four-count grand jury indictment against Trump, accusing him of initiating various unlawful attempts to remain in office. Despite losing to Biden by 7 million votes and the absence of evidence supporting widespread fraud — a claim Trump has continuously and incorrectly asserted — six unnamed individuals assisted him, though they were not indicted.

After entering a not-guilty plea, Trump stated in a Truth Social post on 3 August that ‘the Radical Left aims to Criminalize Free Speech!’ He referenced remarks from Republican allies that resonated with his assertions. On 1 August, Trump’s attorney, John Lauro, mentioned to CNN that the charges against Trump represent ‘an assault on free speech and [on] political advocacy’.

Justice Department veterans say such claims are factually wrong and threaten the integrity of the legal system.

Trump is intentionally blurring the lines between mere words and actions that carry criminal implications,’ commented Donald Ayer, a deputy attorney general under George HW Bush’s tenure.

There’s a significant distinction between merely discussing the notion of winning an election and actively engaging in actions to change a legitimate voting outcome, as outlined in the indictment. Expressing concern over freedom of speech, it’s alarming that Trump or others might equate these two, potentially eroding the foundational idea that our society operates on rules that everyone must adhere to.

Similarly, ex-federal prosecutors say Trump is playing fast and loose with the facts, and mounting a dangerous defense.

The indictment underscores the way in which Trump and his associates used speech, not merely to express their views or mobilize their followers, but to actively exert pressure on others behind the scenes to aid in the alleged fraud,” remarked Columbia law professor and former federal prosecutor Daniel Richman, emphasizing the potential implications for the boundaries of free speech.

Richman further commented, “While Trump’s supporters are probably aware of this, they may see political benefits in invoking the First Amendment. It seems more like a strategy for public sentiment than a legal defense. However, the result might be to perpetuate a narrative of political martyrdom and erode confidence in the judicial system.”

Trump and his allies persistently emphasize freedom of speech in response to Smith’s charges, which mark the third criminal indictment against Trump this year. Given the gravity of the situation — where on Monday, Trump and 18 of his associates were indicted by a Georgia district attorney on 41 counts, including 13 counts of racketeering, perjury, and forgery linked to his attempts to reverse his election loss — there’s growing apprehension about the potential implications for the boundaries and integrity of free speech.

At his first post-indictment campaign rally in New Hampshire on 8 August, for instance, Trump invoked free speech again.

“They want to silence me because I will never let them silence you,” he said, referring to a recent motion by prosecutors seeking a protective court order to curb Trump from sharing sensitive information about the case which could result in intimidating witnesses.

“They’re not taking away my first amendment rights,” he told the crowd.

The motion by the prosecutors came in the wake of a Truth Social post by Trump warning: “IF YOU GO AFTER ME, I’M COMING AFTER YOU.”

Some top Republican House leaders have embraced Trump’s messaging. To boost Trump’s political and legal fortunes post-indictment, Congresswoman Elise Stefanik, the third-ranking party leader, has echoed Trump’s stance. “Trump had every right under the first amendment to correctly raise concerns about election integrity in 2020,” she has said.

Many scholars express profound concern that the free-speech claims made by Trump and his allies could dangerously erode fundamental democratic principles, pushing the boundaries of freedom of speech to a precarious edge.

“Republicans don’t believe this stuff,” said Steven Levitsky, a Harvard government professor and the co-author of How Democracies Die, referring to Trump’s fallacious free-speech defense.

“Authoritarian behavior has to be legitimized and dressed up. Either justified by an emergency or a major security threat or justified as technically legal.”

Trump has continued to distort the detailed evidence in the indictment and to use free speech as a cover for his attacks on critics such as former vice-president Mike Pence, whose grand-jury testimony figured prominently in the indictment of Trump and who is expected to be a witness when the case goes to trial.

As the indictment details, Trump tried unsuccessfully to pressure Pence on January 6 to block certifying Biden’s win in Congress, and when Pence balked, Trump exclaimed: “You’re too honest.”

Prosecutors’ motion to get a protective order was spurred by concerns that he might improperly share information about the case, and potentially intimidate witnesses such as Pence, who Trump has condemned as “delusional”.

On Friday, Judge Tanya Chutkan, who is overseeing the latest federal charges against Trump, held a hearing about the prosecutors’ request.

At the hearing, Chutkan said “Trump has [the] right to free speech but that right is not absolute” and that it needs to be balanced with the “orderly administration of justice … If that means he can’t say exactly what he wants to say about witnesses in this case, then that’s how it’s going to be.”

More broadly, ex-Republican House members are voicing strong concerns about Trump and his allies’ distorted free-speech claims.

“Trump has a right under the first amendment to say he was ripped off in the election, even though he was wrong,” said ex-Republican congressman Charlie Dent.

“He does not have a first amendment right to steal an election by pressuring his vice-president to ignore and discount state-certified electoral votes, encourage his supporters to storm the Capitol, create a fake elector scheme, and intimidate state election officials. He did all this after he exhausted all legitimate legal remedies.”

Dent warned: “Those who continue to enable Trump’s flouting of the rule of law and his reckless disregard for the constitutional order are causing too many of our fellow Americans to lose faith in our republic and the democratic institutions that undergird it.”

Other ex-Republican members see dangers from Trump and his allies’ tactics.

“The GOP has historically been the law and order party, but I think their new strategy for retaking the House is to exacerbate the narrative that DoJ and the courts are biased and corrupt,” former Republican congressman Dave Trott said.

For Harvard’s Levitsky, the real issue is “Republicans’ acquiescence to authoritarianism. Nobody believes conspiracy to commit a crime is free speech. It’s what they say because they can’t say they support Trump, despite the fact that he is a criminal and authoritarian.”

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