It’s bad enough that one of the main Republican talking points regarding Donald Trump’s latest federal criminal charges is an attempt to erase the distinction between free speech and criminal conspiracy to defraud the U.S. government, obstruction of an official proceeding, and conspiracy against rights. What’s worse is that the traditional media is, in its “neutral” mode of reporting, taking these claims seriously.
It’s one thing for Trump’s lawyers to attempt to defend him in media interviews, saying things like, “So the First Amendment protects President Trump in this way: After 2020, he saw all these irregularities, he got affidavits from around the country, sworn testimony, he saw the rules being changed in the middle of the election process—as a president, he’s entitled to speak on those issues.” Anyone is entitled to speak on those issues, however wrong or dishonest they are. It’s when they cross the line from talking to doing—and speech can be action when it’s pressuring other people to break laws or inciting violence—that they run into problems. But Trump’s lawyers have to defend him somehow.
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It’s another thing entirely for The New York Times to run the headline “Trump Election Charges Set Up Clash of Lies Versus Free Speech,” as in, the question is whether Trump’s lies are constitutionally protected free speech:
The indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.
As this suggests, part of what the special counsel has to prove is that Trump knew he was making false statements when he used speech to do things like pressure state lawmakers to overturn his election loss or encourage his supporters to show up at the U.S. Capitol on Jan. 6, 2021. Even though the indictment is unlikely to represent everything prosecutors know, it does show that Trump knew he was being dishonest. For example, there’s the quote from Trump telling Mike Pence “you’re too honest” when Pence again refused to say he would block the certification of the election results.
Another thing the special counsel can prove is that Trump didn’t just talk. He took action, including promoting false electors and trying to use the Justice Department to conduct sham investigations. As Rep. Jamie Raskin, a former constitutional law professor, explained, ““[Y]ou can say ‘I think the currency is phony and everybody should be allowed to make up their own money … but the minute that you start printing your own money, now you run afoul of the counterfeit laws, and it’s the exact same thing with the Electoral College.”
The experienced federal prosecutors on the special counsel’s team did anticipate the exact legal issues that Republicans are trying to raise—and in anticipating them, they answered them in the indictment. But the fact that an argument has already been rebutted never stopped a Republican from making it.
If The New York Times engaged in silly both-sidesing, The Wall Street Journal went straight over to showing its partisan loyalty with a truly ridiculous editorial:
In other words, Mr. Trump can lie about the election all he wants. But the indictment says Mr. Trump broke the law when he acted on those lies. Those actions include lobbying state officials to hunt for voter fraud, working with his conspirators to stand up substitute electors in seven states, and trying to persuade Vice President Mike Pence that he had the power to refuse to count electoral votes on Jan. 6.
Yes, that’s pretty much the core of it.
This is a remarkably broad theory of “conspiracy to defraud the United States,” and one with troubling implications far beyond the fate of Mr. Trump. Mr. Smith’s theory seems to be that if a President and his “co-conspirators” are lying, and then take action on that lie, they are defrauding the U.S.
I mean … yes, that seems to be his theory? Because that’s how it works. The logic of this is hard to even pick apart because it literally defines the crime and acts like it’s some outlandish new legal theory to prosecute it. As Ian Millhiser responded, “’The left wants you to believe Trump committed a crime merely because the prosecution proved beyond a reasonable doubt that he committed an actus reus enumerated by a criminal statute while also possessing the requisite mens rea, and otherwise meeting the elements of the crime.’”
If the words used in planning or advocating a crime universally got free speech protections, how would the government ever prosecute mob bosses who ordered hits? Or anyone at the top of an organized crime operation who was issuing orders, not carrying them out? This is a ludicrous argument, but it—and the related argument that Trump was not lying because he was delusional enough to believe the false claims—is what the defense has. That’s fine if you’re a lawyer paid to defend Trump. It’s obnoxious but not startling coming from Republicans who have defined their party around the idea that Trump is never, ever wrong. But the media—even parts of the Murdoch-owned media like the WSJ—needs to do better.
Conservatives cried about how the “woke” (whatever that means) “Barbie” movie would fail. It didn’t. In fact, the film has struck a chord with American and international audiences. Daily Kos writer Laura Clawson joins Markos to talk about the film and the implications of the Republican Party’s fixation on mythical culture wars, which is failing them in bigger and bigger ways every day.
