Prosecutors Say Trump’s Election Lies Aren’t All Shielded By The First Amendment


In a new filing in federal court, the team of Special Counsel Jack Smith rips into arguments made by former President Donald Trump’s team in the case brought by Smith that accuses Trump of attempted election interference. In one section, federal prosecutors upend Trump’s claims that targeted comments of his should be considered to be protected under the First Amendment. Trump is seeking a dismissal of his charges on grounds including those Constitutional arguments.

In short, the prosecutors outlined a series of previously established legal precedents that they say clearly establish how criminal laws can be applied to speech such as Trump’s clamoring against the results from the 2020 presidential race. Also under dispute is advocacy from Trump for various government figures to take action that would have furthered his clearly established ambitions of staying in power despite losing. Smith called Trump’s interpretation of the case against him “self-serving.”

“Accordingly, insofar as the defendant used speech to commit the charged conspiracies aimed at defrauding the United States, corruptly obstructing official proceedings, and unlawfully depriving citizens of their constitutional rights, that speech was unprotected under the First Amendment. A conspiracy is “not protected by the First Amendment merely because, in part, it may have involved the use of language,”” prosecutors argued to the judge. The latter portion of that passage quotes a 1990 federal court case.

“The defendant invokes (ECF No. 113 at 12-13) the Supreme Court’s decision in McDonald v. Smith, 472 U.S. 479 (1985), to argue that his conversations with government officials were protected under the Petition Clause of the First Amendment, but that case in fact confirms that speech is not immune from the application of criminal law simply because it concerns a matter of public importance,” the government continued.

Considering the precedent already established in this case, in which Smith accuses Trump of essentially targeting both government operations and the expression by everyday Americans of their right to vote, it seems unlikely that presiding Judge Tanya Chutkan will rule for Trump, but the matter could quickly go to appeal. The clincher in Smith’s argument is, in part, that Trump didn’t even stop at mere speech, instead attempting to effectuate an election subversion conspiracy. Check out the full filing here.