In the last few months, we have gained valuable insights into former Special Counsel Jack Smith’s unprecedented effort to criminally prosecute President Donald Trump, at the time a former president and leading contender for the presidency.
In Injustice, Washington Post reporters Carol Leonnig and Aaron Davis, appearing to rely heavily on accounts from Smith’s top deputies, paint a picture of a prosecutor doggedly focused on one objective: prosecuting Trump. On New Year’s Eve, however, the House Judiciary Committee released the transcript of Smith’s closed-door deposition. While a prosecutor’s crusade to imprison a presidential candidate is troubling in itself, Smith’s deposition testimony was alarming, as it betrayed Smith’s utter disdain for the fundamental right to freedom of speech enshrined in the First Amendment.
Smith’s so-called “election interference” case in Washington, D.C., has long raised a fundamental question: What was the crime? In his deposition, Smith claimed Trump’s statements that the 2020 election was “rife with fraud” were “absolutely not” protected by the First Amendment and, indeed, formed the basis for his prosecution. Smith went on to claim that Trump would reject information that Smith believed he should have credited and reached out to individuals whom Smith deemed uncredible.
Whether you are the president of the United States or an anonymous poster on X, the First Amendment protects your right to speak about elections. The First Amendment’s guarantee of free speech is a critical check on the power of the government, as it prevents the government from punishing those who speak out against it. Punishing speech regarding an election is especially insidious: American history is replete with instances in which litigation has changed the results of elections, and election fraud has been proven.
For example, in Hawaii, a court-ordered recount changed the outcome of the presidential contest in that state. And it was only because President John F. Kennedy sent a slate of alternate electors to Washington that Kennedy’s victory in Hawaii was counted. Criminalizing the questioning of elections is an invitation for election fraud and, regardless, tramples on the right we all enjoy to criticize our government.
Smith’s disdain for the First Amendment did not end with his attempt to prosecute Trump for speaking about the 2020 election. Speaking about the Jan. 6, 2021, riot at the Capitol, Smith stated unequivocally that Trump “caused it.” The Department of Justice (before and after Smith’s appointment as special counsel) and the Jan. 6 Committee each spent years (and millions of dollars of taxpayer money) investigating the Capitol demonstration, and neither uncovered a shred of evidence that Trump had any role in planning the riot. Indeed, Smith never sought an indictment against Trump for inciting a riot, which would have been the obvious charge if Smith had uncovered such evidence. Yet Smith tried to justify his extraordinary claim that Trump caused the riot by saying Trump’s statements about the 2020 election “created a certain level of distrust.”
If an American — president or otherwise — could be criminally responsible for what others do in response to political speech, the possibilities for prosecution would be limitless. In the lead-up to the 2024 election, Trump survived two assassination attempts. The would-be assassins were surely radicalized by someone, likely media figures or other politicians who spent years falsely deriding Trump as a dictator or puppet of Vladimir Putin.
Politicians’ reckless rhetoric in the wake of George Floyd’s death led to massive riots in multiple American cities, causing the destruction of many small businesses. But the notion of a special counsel seeking an indictment of an MSNBC personality for the Trump assassination attempts or a Democrat member of Congress for the Black Lives Matter riots is downright farcical (as it should be).
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