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Jack Smith’s Jan 6. Indictments Are An Attack On Political Speech

Special Counsel Jack Smith
Image CreditYouTube/C-Span

And you don’t have to be a Trump supporter to see it.


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 Donald Trump if you like. I’m certainly no fan. If Trump wins in 2024, Congress can impeach and remove him if they choose. But just as there was no special set of rules that could keep Trump in the White House in 2020, there shouldn’t be an exclusive set of rules to keep him out, either.

Yet 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 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. 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 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 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 Trump incited “imminent lawless action” on Jan 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, 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 Hillary Clinton or Joe Biden, but for others.) This, however, isn’t about mere double standards anymore.

When, in 2000, the Supreme Court finally stopped Al 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 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 Gore — or Stacey Abrams or Hillary Clinton or Ron Klain or John Kerry or Bennie Thompson or Barbara Lee or Maxine Waters or Raúl Grijalva or James Clyburn or Ed Markey or Nancy Pelosi, or many others who have tried in various ways to challenge election results in the past. It’s to say that Trump’s actions laid out in the indictments aren’t crimes, either.

Obviously, Democrats don’t believe precedents will apply to them in the future. And considering the way our federal institutions are run these days, they’re probably right. Has a single notable Democrat shown any hesitancy about prosecuting the leading opposing presidential candidate over speech crimes? I haven’t seen one. Increasingly, the contemporary political left has stopped viewing our institutions as tools of stability, law, or neutrality. Rather, they see them as tools for enacting political ends. And when those institutions fail to do so, they are useless and corrupt. Just look at what they’re doing to the Supreme Court right now.

Perhaps Smith doesn’t really expect Trump to end up in prison over any of these indictments. As his foray into the partisan prosecution of former Virginia Gov. 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 Jan. 6 — and hysterical claims about American democracy’s near demise — the centerpiece of the 2024 election.

Granted, allowing Joe 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.

This article has been updated.

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