The latest indictment of former President Trump threatens to destroy the First Amendment and give the federal government the unprecedented power to criminalize political lies, constitutional law professor and Fox News contributor Jonathan Turley warned Saturday.
Trump was indicted this week on four charges related to Special Counsel Jack Smith’s investigation into 2020 election interference and the Jan. 6 Capitol riot, including conspiracy to defraud the United States. Trump pleaded not guilty to all charges in a Washington, D.C., courtroom Thursday.
In an op-ed for The Hill, Turley wrote that Smith’s indictment essentially charges Trump for spreading “lies that there had been outcome-determinative fraud in the election,” which he said is a dangerous proposition for the First Amendment.
“In order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected,” he wrote.
Specifically, Turley said Smith’s charges assert that Trump knew the statements he made about the 2020 election were false and said if Trump does believe he won, “the indictment collapses.”
In an effort to show Trump knew he lost legitimately, the indictment explains that many people advised him that he lost. Turley said Trump sought out people who said he won but that he is allowed to do this.
“Trump is allowed to seek out enablers who tell him what he wants to hear,” Turley wrote. “All presidents do this. (Joe Biden, for example, ignored virtually unanimous legal opinion and relied upon a single law professor’s say-so to justify an obviously unconstitutional executive action that later had to be reversed.)”
Turley also warned that successfully charging Trump in this way sets up the “dangerous” precedent of giving the government the power to determine what’s true and what isn’t.
“There is no limiting principle to this indictment,” Turley wrote in The Hill. “The government would choose between which politicians are lying and which are lying without cause.”
Turley said there is a “constitutional problem” with trying to “criminalize lies” in this way. He said a 2012 Supreme Court case, United States v. Alvarez, found that it’s unconstitutional to criminalize lies and that the court recognized that ruling otherwise would give the government “broad censorial power unprecedented in this court’s cases or in our constitutional tradition.”
“So, even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements,” Turley wrote.
Turley added that even if Judge Tanya Chutkan supports Smith’s case, “the Supreme Court would likely balk at the criminalization of false political speech.”