After special counsel Jack Smith announced new criminal charges against the former president for allegedly participating in the Capitol riot on January 6, 2021, an increasing number of legal professionals on the left and right have stepped up to defend him.
Professor Jonathan Turley of Georgetown Law School asserted that a sizable segment of the American public is growing weary of the Biden administration’s continued pursuit of Trump and increasingly views the cases as purely political in an interview with Sean Hannity, host of Fox News.
According to reports, Trump was charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights. The last charge is related to a law that was passed around 1900 that mostly applied to obstructing traffic on highways.
“This is a free speech-killing indictment. There’s no way around it. I write a great deal in academia in the free-speech area, and I have rarely seen a more chilling filing by the Department of Justice,” Turley said.
“The question that people have to ask themselves is, when is the price too high? People are obviously enraged, but what is the price too high to bag Donald Trump? This indictment is a prohibitive cost. Meaning what they are attempting to do is criminalize what they consider to be disinformation,” he added.
“And I have to tell you, this indictment is really sad moment for me. I hoped that Smith is going to indict on January 6th, that he would find unassailable evidence and unquestioned legal authority. He has neither in this indictment,” Turley added.
“This is a speaking indictment but it doesn’t say very much. It basically just says that we think Trump is lying that he actually didn’t believe this. I can’t tell you how faciously ridiculous this claim is. It starts up by saying, of course, you can say false things in the campaign, but then says that Trump knew they were false. Is that the test going forward in terms of criminalizing political speech?” Turley continued.
“Smith is just not only going to have to just bulldoze through the First Amendment, he’s going to have to bulldoze through a line of cases by the Supreme Court,” he said.
In the meantime, former economic adviser to the Trump administration and Fox Business Network host Larry Kudlow received a shocking revelation from Harvard law professor Alan Dershowitz on Wednesday: Smith is putting himself at risk of legal action.
“You know the worst thing about this indictment, under the terms of this indictment, Jack Smith can be indicted. Let me explain to you why,” Dershowitz said. “The statute says the following, two or more persons conspire to injure and deny somebody the free exercise or enjoyment of any right or privilege secured him by the constitution.
“What if a court ultimately rules that Donald Trump had a right under the First Amendment to make his Jan. 6 speech and to do what he did? Then Jack Smith will have conspired to deny him of that right. That’s how serious this is,” Dershowitz said.
“Jack Smith … deliberately, willfully and maliciously leaves out the words that President Trump spoke on Jan. 6 in his terrible speech, which I disagree with, but what he said was, ‘I want you to assemble peacefully and patriotically,’” Dershowitz noted further (see below).
“Jack [Smith] leaves that out. That is a lie, a lie, an omission lie, and if you’re going to indict somebody for telling lies, don’t tell lies in the indictment,” Dershowitz continued. “If you’re going to indict somebody for denying people their constitutional rights, don’t deny them their constitutional rights by indicting them for free speech. That’s how hypocritical this is.”
“The Supreme Court has said in an opinion by Chief Justice [William] Rehnquist … under the First Amendment there is no such thing as a false opinion or a false idea. The response to a false idea is the marketplace of ideas or Election Day,” Dershowitz explained further.
“So you’re absolutely right, this is a very, very dangerous indictment, dangerous to the First Amendment and also dangerous to the Sixth Amendment because it directly goes after Trump’s lawyers, names them as unindicted coconspirators without giving their names, but basically says they’re criminals for giving him advice on how to challenge the election,” he said.