The legal rationale for former President Donald Trump’s defense against his latest federal indictment is starting to take shape, and several experts told the Daily Caller that they expect the former president to mount a robust argument that all his statements made in the wake of the 2020 elections fell under protected free speech.
Trump, who is charged with obstructing the collection, counting, and certification of votes following the 2020 elections, made statements that even if untrue fell under his First Amendment rights, said George Washington University professor Jonathan Turley.
“If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku,” he said. “I felt that the Mar-a-Lago indictment was strong. This is the inverse.”
The indictment is “unfair” to Trump at times, Turley points out, which “quotes Trump in his speech about encouraging people to go to Capitol Hill, but like the January 6th committee, it omits where he says, ‘you should go peacefully.’”
Shortly before the indictment, Turley appeared on Fox News to claim that the investigation into the Biden family’s business practices would go down as “one of the greatest corruption scandals in history.”
The indictment claims that President Trump had a right to “claim, falsely, that there had been outcome-determinative fraud during the election and that he had won” but went into criminal territory when he “pursued unlawful means of discounting legitimate votes and subverting election results.”
Lawyer and Townhall columnist Kurt Schlichter disagreed, calling the indictment “45 pages of First Amendment protected activity.”
“It’s 45 pages of First Amendment protected activity broken up by four captions listing conspiracy statutes that do not apply,” he tweeted. “It’s not a conspiracy to use free speech and attempt to participate in the political system no matter how badly our garbage elite wants it to be.”
No matter how bad you think this disgraceful bogus indictment is, it’s worse.
It’s 45 pages of First Amendment protected activity broken up by four captions listing conspiracy statutes that do not apply. It’s not a conspiracy to use free speech and attempt to participate in the…
— Kurt Schlichter (@KurtSchlichter) August 1, 2023
Former New York federal prosecutor Andy McCarthy said Smith is pushing legal boundaries by pursuing the latest charges against Trump rather than letting his failed impeachment process be the end of the investigation.
“[Smith] has extravagantly stretched these statues in order to try and capture this behavior and that’s because this is a proxy for what should have been a political impeachment process they’re leaving to the criminal justice system, the failure of Congress to carry out a successful impeachment,” McCarthy said.
The case against Trump’s actions following the 2020 elections is the second to be handed down by Smith, an appointee of U.S. Attorney General Merrick Garland who has a history, according to Trump, of committing “political hit jobs” against politicians. The cost of Smith’s first case against Trump, which alleges he mishandled classified documents, is on pace to cost taxpayers $25 million in just one year.