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The Mind of Donald Trump: Why Proving a Lie Will Not Necessarily Secure a Conviction for Jack Smith
10 Aug 2023 ~~ By Jonathan Turley
The latest federal indictment of former President Donald Trump was handed down this week with all of the authority of papal infallibility. Pundits lined up to proclaim that case as the greatest prosecution in history.
Former Obama administration acting Solicitor General Neil Katyal even declared that the indictment touched off “the biggest legal case in our lifetimes, perhaps almost ever. It’s up there with cases like Dred Scott, it is up there with Brown v. Board of Education.” What was missing was any serious consideration of the implications of allowing the government to criminalize false statements in a campaign.
Trump was not charged with conspiracy to incite violence or insurrection. Rather, he was charged because he “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.”
In order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected.
The government acknowledges that the Constitution protects false statements made in campaigns, but it insists that Trump must have known that his statements were false and therefore was engaged in fraudulent statements to obstruct or challenge electoral results.
~Snip~
Under our current understanding of free speech, Democrats ranging from Hillary Clinton to Rep. Jamie Raskin (D-Md.) were engaged in protected speech when they called Trump illegitimate and challenged the certification of his win, even though they knew that their challenges were completely meritless. Yet this indictment suggests that Trump engaged (and indeed still engages) in criminal conduct by insisting that the 2020 election was stolen. Presumably, it also follows that tens of millions of Americans holding that same view are also involved in spreading the same false claims underlying the indictment.
Smith could still secure the cooperation of insiders to support a claim that Trump knew. Many of us have noted the sudden silence of former Chief of Staff Mark Meadows and a couple of former Trump lawyers who do not appear to be among the six referenced criminal co-conspirators. One of those six could also flip and say that Trump said that this was all an undeniable but useful sham.
~Snip~
The problem could come down to the judge. Even liberal pundits admit that Judge Tanya S. Chutkan, who has used past Jan. 6 cases to vent, is the “worst [judge] Trump could have got.”
Chutkan could effectively certify the deeper constitutional questions and let the parties seek appellate review. Or she could insist that Trump be tried before the constitutional questions are considered. Although the D.C. Circuit is not a friendly court to Trump, the Supreme Court would likely balk at the criminalization of false political speech.
That would mean that Chutkan could force a case to be tried that should not be tried. And even with a conviction, there would remain a serious threshold constitutional question that is not entirely answered by determining what was in the mind of Donald Trump.
Commentary:
If lying were a crime every politician in Washington who reneged on a campaign promise would be in prison. Notably our 46th president that as been caught in a myriad of lies.
It’s not an accident, or bad luck, that judge Tanya S. Chutka was chosen.
Today the majority of America believes that Trump is bein persecuted and Biden and his family are bein protected by the weaponized DoJ and FBI.
Under the regime of the Joe Biden and is Merry Maoist Marxist DSA Democrat cabal, these madmen madmen have taken us back to: the days of `the Inquisition`. You will now be charged for `Thoughtcrimes`.
