Former President Donald Trump’s lawyers are framing the new indictment as an unprecedented battle over free speech that federal prosecutors can not win.
John Lauro, one of the lawyers on Mr. Trump’s defense team, is hammering home the message that this is the “first time the First Amendment has been criminalized.” He warned that President Biden’s Justice Department will make it “criminal to state your position and engage in political activity.”
“It is criminalizing speech for this reason: What the president saw in 2020 was all these irregularities going on — affidavits, sworn testimony, examples of instances where the rules were changed in the middle of the game,” Mr. Lauro said Wednesday on NBC’s “Today.” “He had every right to comment on that and act politically. In a criminal case what they would have to show is all that speech was not entitled to First Amendment protection.”
It is going to be impossible for the government to provide criminal and corrupt intent beyond a reasonable doubt, he said.
“They have to demonstrate beyond a reasonable doubt that No. 1 President Trump did not believe that all these irregularities were true and No. 2 that he did something to corruptly obstruct justice and they can’t prove that because everything he did was to get at the truth,” he said.
Mr. Trump on Thursday is expected to appear in a federal court in Washington for his arraignment on charges that he conspired to subvert the results of the 2020 presidential election.
It is yet another legal challenge with the threat of jail time pitted against Mr. Trump’s bid to return to the White House, coming on top of a previous federal indictment, state charges in New York and an expected indictment in Georgia.
The new four-count indictment, which was handed up Tuesday by a federal grand jury in Washington, accuses Mr. Trump of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstructing an official proceeding, and conspiracy against the rights of citizens.
Special counsel Jack Smith’s indictment draws a line between Mr. Trump’s right to claim — even falsely — that the 2020 election was stolen, and to challenge the results of the election “through lawful and appropriate means” and the “unlawful means of discounting legitimate votes and subverting the election results.”
Legal analysts are divided on the argument.
Jonathan Turley, who teaches constitutional law at George Washington University, said Mr. Smith “issued the first criminal indictment of alleged disinformation in my view.”
“If you take a red pen to all of the material presumably protected by the First Amendment, you can reduce much of the indictment to haiku,” Mr. Turley said on Twitter. “I felt that the Mar-a-Lago indictment [over mishandling classified documents] was strong. This is the inverse.”
But Ciara Torres-Spelliscy, professor of law at Stetson University College of Law, said a recent Supreme Court ruling in United States v. Hansen “blows Trump’s First Amendment arguments out of the water.”
The court said in the ruling that “words may be enough” for individuals to face criminal charges for encouraging unlawful acts, and assisting “a wrongdoer with the intent to further an offense’s commission.”
“The First Amendment wasn’t a shield for Mr. Hansen and it won’t be a shield for Mr. Trump either,” Ms. Torres-Spelliscy said in an email to The Washington Times.
Mr. Trump, meanwhile, continues to lead the 2024 presidential nomination race, according to polls that have previously shown his legal struggles have hardened his support and made it more of an uphill battle for his rivals.
A day before his court appearance, Mr. Trump on Wednesday continued to attack federal law enforcement officials.
“THIS UNPRECEDENTED INDICTMENT OF A FORMER (HIGHLY SUCCESSFUL!) PRESIDENT, & THE LEADING CANDIDATE, BY FAR, IN BOTH THE REPUBLICAN PARTY AND THE 2024 GENERAL ELECTION, HAS AWOKEN THE WORLD TO THE CORRUPTION, SCANDAL, & FAILURE THAT HAS TAKEN PLACE IN THE UNITED STATES FOR THE PAST THREE YEARS,” Mr. Trump wrote on Truth Social. “AMERICA IS A NATION IN DECLINE, BUT WE WILL MAKE IT GREAT AGAIN, GREATER THAN EVER BEFORE.”
Mr. Trump also faces federal charges in Florida for mishandling government secrets and state charges in New York for falsifying business records to cover up hush money payments in 2016 to two women and a hotel doorman.
An ongoing probe in Georgia is expected to yield another indictment for his attempts to overturn President Biden’s 2020 victory in the state.
Mr. Trump has denied any wrongdoing in every instance and accused prosecutors of doing Mr. Biden’s bidding to tilt the scales in the 2024 election.