Jack Smith’s January 6 Indictments Are an Attack on Political Speech

If recklessly lying to voters were a crime, most everyone in D.C. would be serving life in solitary confinement at Supermax. But in a liberal democracy, as frustrating as it often is, political misconduct is settled by voters and elections, not partisan prosecutors or rioters.Feel free to campaign and vote against President Trump if you like. I’m certainly no fan. If Mr. Trump wins in 2024, Congress can impeach and remove him if they choose. Yet just as there was no special set of rules that could keep Mr. Trump in the White House in 2020, there shouldn’t be an exclusive set of rules to keep him out, either.Special Counsel Jack Smith’s indictments over Jan. 6 read like a political oppo document cobbled together by some partisan House staffers who perfunctorily tacked on the last-minute novel legal reasoning.Though numerous commentators who have an aversion to Mr. Trump have pointed out the weakness of the indictments, it’s quite telling how little media-approved historians and legal “experts” even bother defending the underlying legal case. Mr. Trump is evil, a threat to “democracy,” and really what else is there to discuss? In the Trump-addled politics of our age, it is virtually impossible for either side to compartmentalize the process and the person if that person happens to be Mr. Trump.In this case, the precedent would criminalize and chill political speech. People keep assuring me the indictments aren’t really about the expression but rather about defrauding the government. Sorry, the entire case is predicated on the things Mr. Trump said or believed or didn’t say or didn’t believe.All of it should be protected under the First Amendment. “Spreading lies” — prosecutors leaned on the thesaurus hard, finding about two dozen ways of repeating this fact — or entertaining theories offered by crackpot lawyers, or trying to convince faithless electors to do things that people have been trying to convince faithless electors to do for a long time, are all unethical, not criminal.Nowhere do the indictments come anywhere in the vicinity of making the case that Mr. Trump incited “imminent lawless action” on January 6. At least no more than, say, the entire Democratic Party had a hand in inciting the 2020 Black Lives Matter riots — the most destructive in American history. This is a dangerous road to go down.Yes, Mr. Trump’s Mar-a-Lago classified documents case is an exercise in the selective use of power for political ends, but it has a basis in law and recent precedent. (Not for Secretary Clinton or President Biden, but for others.) This, however, isn’t about mere double standards anymore.When, in 2000, the Supreme Court finally stopped Vice President Gore’s conspiracy to overturn the outcome of the presidential election, no serious person contemplated throwing him or his lackeys in prison. Since that time, Democrats haven’t only been lying about elections, they have tried to stop the certification of every national election as well.When they fail, people like Congressman Adam Schiff will use a DNC political oppo document to concoct a conspiracy, illegally leaking classified documents — in carefully curated snippets to mislead the country — to overturn the will of the American voter. This effort also resulted in expensive investigations that defrauded the American people.The point isn’t that we should imprison Mr. Gore — or Stacey Abrams, or Mrs. Clinton, or Ron Klain, or Secretary Kerry, or Representatives Bennie Thompson, Barbara Lee, Maxine Waters, Raul Grijalva, and James Clyburn, or Senator Markey, or Speaker Pelosi — or many others who have tried in various ways to challenge election results in the past. It’s to say that Mr. Trump’s actions laid out in the indictments aren’t crimes, either.Perhaps Mr. Smith doesn’t really expect Mr. Trump to end up in prison over any of these indictments. As his foray into the partisan prosecution of former Virginia governor,. Bob McDonnell, overturned 8-0 by the Supreme Court, this case is grounded on a “boundless” reading of statute. The law isn’t the point. The point is likely to make January 6 — and hysterical claims about American democracy’s near demise — the centerpiece of the 2024 election.Granted, allowing Mr. Biden’s record to be the central issue of that 2024 campaign is potentially disastrous for Democrats. These indictments, however, create a deterioration of law that Americans will have to live with long after the next presidential election.Creators.com

Jack Smith’s January 6 Indictments Are an Attack on Political Speech

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