Jack Smith’s Prosecution Of Trump Has A Major First Amendment Problem, Legal Experts Say

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Legal experts reacted to former President Donald Trump’s third indictment Tuesday, sounding the alarm on how the indictment against his alleged attempt to overturn the 2020 election prosecutes protected speech.

Trump was charged Tuesday with one count of conspiracy to defraud the United States, one count of conspiracy to obstruct an official proceeding, one count of conspiracy against rights and one count of obstruction of and attempt to obstruct an official proceeding, according to the indictment. Legal experts said the charges are built on speech protected by the First Amendment.

George Washington University law professor Jonathan Turley said Smith issued “the first criminal indictment of alleged disinformation.” “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.”

Turley also said on Fox News the indictment is “unfair at points,” noting that it “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.'”

The indictment states that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won” but then states he “also pursued unlawful means of discounting legitimate votes and subverting election results.”

Lawyer and Townhall columnist Kurt Schlichter called 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.” (RELATED: ‘Reduces To A Haiku’: Jonathan Turley Says Many Of The Charges In Trump’s Jan. 6 Indictment Are ‘Protected Speech’)

Former New York federal prosecutor Andy McCarthy said Smith had to stretch the statutes to capture Trump’s behavior. “[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.

“If you’ve got evidence that Trump committed incitement, then charge him with incitement,” he continued, adding that they “don’t have a prayer of a case like that.”
Constitutional lawyer Robert Barnes tweeted the indictment “threatens core First Amendment freedoms in an unprecedented manner, by making legal advocacy a crime, advocacy to Congress a crime, advocacy to courts a crime, advocacy to the public a crime.”

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