The indictment of Donald Trump for speaking out against the results of the 2020 election, and in the words of the indictment, fomenting “a conspiracy to defraud the United States,” has been challenged by legal commentators from both political parties. These jurists consider the prosecutor’s “novel legal theories” dubious or even preposterous, not to mention unconstitutional. If successful, this politicization of the legal system that attacks one candidate for the presidency and benefits the other, carries with it a huge moral hazard.
Democrat legal scholar Jonathan Turley has identified this risk: “The hatred for Trump is so all-encompassing that legal experts on the political left have ignored the chilling implications of this indictment. This complaint is based largely on statements that are protected under the First Amendment. It would eviscerate free speech and could allow the government to arrest those who are accused of spreading disinformation in elections.”
This corruption of First Amendment law––one already judged unconstitutional in several Supreme Court decisions–– will further empower significantly the already growing threats to free speech. “Woke” Dems for decades have been weakening this foundation of every free government and society. But if Trump’s political enemies can treat the ex-president this way with impunity, then we all will be further down the road to tyranny.
Part of sketchy federal prosecutor Jack Smith’s shambolic reasoning is the charge that Trump “lied” about the integrity of the 2020 election. That Trump is a serial liar is a NeverTrump cliché, reflecting his enemies’ inability or indifference to distinguish rhetorical hyperbole, a feature of political speech since ancient Athens, from a willful lie. As Salena Zito memorably said, when Trump uses such exaggerations, “the press takes him literally, but not seriously; his supporters take him seriously, but not literally.”
Moreover, how does Smith determine that Trump knew he was lying? As Kimberley Strassel writes, “But how do you prove legally that Trump truly didn’t believe his false claims? And even if you can prove that Trump lied, how do you legally distinguish his falsehoods from the lies other political leaders have told over the years?”
As Strassel explains Smith’s argument, though Trump has a First Amendment right to lie, “Yet if that politician is advised by others that his comments are untruthful and nonetheless uses them to justify acts that undermine government ‘function,’ he is guilty of a conspiracy to defraud the country. Dishonest politicians who act on dubious legal claims? There aren’t enough prisons to hold them all.”
Under this standard, Strassel continues, Al Gore and George W. Bush obviously believed they had won the 2000 election, and probably had advisors who told them they may not have when they filed lawsuits. Or take Barack Obama, who invented a presidential right to declare the Senate was in recess so he could make appointments without confirmation by the Senate. Obama, though probably advised that the ploy was unconstitutional, still claimed he had the authority. “Under Mr. Smith’s standard,” Strassel concludes, it was “a lie that Mr. Obama used to defraud the public by jerry-rigging the function of a labor board with illegal appointments.”
The fact is, no one knows if Trump is lying when he talks about the “stolen election.” But given Trump’s cocky self-assurance and hair-trigger sense of grievance, it’s more likely that he sincerely believes that he really did win.
More interesting is the claim, made by both Democrat and Republican NeverTrumpers, that the election was fair and square, and Trump knows that but persists in lying to salve his wounded ego, or more seriously, to illegally overturn Biden’s victory. And this assertion rests on a big fat begged question: That it is a self-evident fact that the election was legal, and there was only fabricated or dubious evidence suggesting otherwise.
But neither alternative, fair or “stolen,” at this point is a fact but an opinion with varying levels of supporting evidence. What happened after the election was the bipartisan establishment by fiat proclaimed that the probity of the election is a fact, as Attorney General William Barr did when on December 1, 2020––barely a month after the election–– he said there was no evidence of electoral fraud.
Yet there was plenty of evidence that something was anomalous about this election. It took place on the heels of violent protests including arson, property damage, and assaults, all openly supported by numerous Democrats. A confused, gaffe-prone, old white guy, Joe Biden, campaigned from his basement, while Donald Trump was attracting thousands of enthusiastic supporters to his rallies.
Covid panic and lockdowns provided an excuse for increasing the use of notoriously corruptible mail-in ballots, nearly double the number used in 2016. There were last minute changes in election laws, and other irregularities in handling, verifying, and counting mail-in ballots. And very suspicious was the unseemly haste shown by the bipartisan political establishment with its Oz-like “pay no attention to the man behind the curtain” dismissal of legitimate concerns.
Nor was the election a landslide victory that would have made charges of fraud obviously incredible. The 2020 election, however, ultimately came down to a mere 49,000 votes among three states––a total, as Matt Margolis pointed out, that is a “much smaller number than the extra votes counted in New York City.” If votes in those three states had gone the other way, Trump would have won.
Finally, the progressive Dems have long operated under the principle of “any means necessary.” If they were willing to corrupt the FBI, the IRS, the CIA, the DOJ, Homeland Security, and the FISA court in order to knee-cap the Trump administration with a transparently dishonest “Russia hoax”; to hold rigged House impeachment and January 6 hearings redolent of Stalin’s show trials; and to viciously smear a Supreme Court nominee with decades-old preposterous charges of sexual assault––they certainly were not going to miss an opportunity to take back the presidency by juking the numbers of mail-in ballots and forging some signatures.
And don’t forget the irrational, hysterical, bipartisan hatred of Donald Trump that has driven the political guild’s bizarre behavior for six years, and empowered federal prosecutors to trash the law and the Constitution for political gain.
But none of these anomalies were thoroughly investigated on a nationwide level. Nor are they sufficient enough to support a claim that the election was in fact “stolen.” But it does show that believing the election was rigged is not a conscious lie, or a conspiracy beyond the bounds of reason, or the fever-dream of “smelly Walmart shoppers” and “deplorable” MAGA lowbrows.
This common sense take on the 2020 election suggests that the prosecutor’s “novel legal theory”–– predicated on reading Trump’s mind to show that he in fact lied, and then transforming that lie into a conspiracy to defraud the government––is an assault not just on justice, but on our right to free speech, just another tool like “political correctness,” “hate speech,” “microaggressions,” and “cancel culture” that have been chipping away at the First Amendment for decades.
But we know what the “lies” and “conspiracy” angst is all about. The Dems are stuck with a bumbling, stumbling, addled candidate underwater in the polls, obviously in cognitive decline, and tainted with credible hard evidence that at least since his VP days, he has participated in a criminal enterprise to monetize his office, and serially lied about it since the 2020 campaign. And his policy record at home and abroad is one of abysmal and expensive failures.
The Democrats’ game plan to compensate for these weaknesses is first to enraged MAGA supporters enough that they get him the nomination; then to bleed Trump financially as he fights four indictments, and to distracting him from campaigning; to have their minions in the media give front-page coverage to nothing other than Trump’s legal travails in order to misdirect voters away from Biden’s failures; and to make sure that the trials begin before election day. By then, they hope that a critical mass of voters will choose Biden as the lesser of two evils.
Finally, more troubling is the corrupt DOJ and FBI acting like a mashup of Tom Hagen and Luca Brasi, attacking Biden’s likely opponent in 2024, and using federal prosecutors to indict Trump, knowing an equally corrupt corporate media will spin the optics of the indictments and likely trials into a PR weapon for damaging Trump.
In other words these indictments are not about justice or truth or the Constitution. They are about raw, any-means-necessary power, and the “fundamental transformation” of our free Republic into a tyrannical oligarchy.
That’s what’s at stake in 2024: whether or not we can keep our Republic and our freedom.