Trump's Principal Defense to Election Meddling Must Fail
The First Amendment Protects Free Speech, But Not Crimes of State Set in Motion by Oral Instructions
Former President Trump has finally been charged with the serious crimes of State that he committed in full view in 2020 and early 2021. The only scandal about this latest round of indictments is that it took so long for the current Administration to bring them.
But late is better than never: a republic governed by rule of law cannot overlook crimes of State committed by a departing President who seeks by any means at hand to cling to power for the sake of vanity and venal ambition.
Just imagine for a moment what would have happened if, say, President Obama had unambiguously lost his bid for re-election, then in a desperate effort to remain in power he did his level best to undermine public confidence in our elections, schemed to reverse the outcomes and appoint false electors in pivotal states, litigated nearly sixty baseless lawsuits to challenge the election results, tried in various ways to prevent or sabotage the peaceful transfer of power, and bestirred his partisans to terrorize election workers, ransack the Capitol, and thereby cause five deaths and many injuries. Does anyone believe it would have taken the next Administration nearly three years to bring charges?
But better late than never, I say.
I now turn to Trump’s risible defense to the charges, which is premised on an absurd argument. According to Trump, the First Amendment protected his right to express doubts about the integrity of the election that he lost, and prosecuting him criminally for expressing such doubts violates his sacrosanct right of free speech.
This one is simple for me to refute. Trump had no more right to give unlawful oral commands, which is what he did, than a mobster has to instruct a hitman to murder a rival mobster. The analogy is both apt and fitting. I fully explain these points below.
First, Trump unquestionably held a right under the First Amendment to express as much doubt as he wished about the outcome of the election. If along the way he defamed anyone, he could be made to pay civil damages, but only upon a showing that he made materially false statements of fact with positive knowledge of their falsity or a reckless, cavalier indifference as to whether his statements of material fact were true or false. That is rightly the high standard that must be met to prove defamation against a public official or public figure. Even so, Trump apparently crossed this line so many times that it is a wonder to me that he has not been sued into the dust.
Regardless, Trump held a constitutional right to express his doubts about the outcome of the election. But that is not all that he did: Trump’s right of free speech did not confer on him a license to issue unlawful commands or scheme to undermine our elections, which is what he demonstrably attempted to do by taking the following acts:
Trump tried to instruct his Justice Department to sow doubt about the integrity of our elections, to seize voting machines, and to indicate publicly that it might impose martial law on the basis of a sham pretext — outcome-determinative voting fraud, which definitively did not occur. This effort failed only because Trump’s own Attorney General refused to go along, and then a massive number of career prosecutors threatened to resign en masse when Trump tried to hire a successor who would carry out these instructions.
Trump and his closest advisors plotted with and tried to coerce Republican officials in closely contested States in order to have them appoint bogus slates of electors from those States. These efforts failed because most Republicans were unwilling to go along with the scheme.
Trump and his closest advisors tried to coerce Vice-President Pence to recognize these false electors during the certification of the next President. To his historic credit, Vice-President Pence refused and even played the part of a hero on that fateful day of January 6, 2021. It was perhaps the only time that I ever admired him, but I did at the time.
Trump and his closest advisors tried to strong-arm election officials in closely contested States to fabricate supposed instances of election fraud in order to reverse the outcomes in those States. That is called election-tampering. It is a felony. A sitting President should not conspire to commit it. These efforts likewise failed, but Trump, his team, and his supporters harassed and threatened election officials in these States, ceaselessly seeking to have them overturn the election results.
During one call, which was recorded, Trump personally tried to strong-arm the Republican official in charge of Georgia’s election, urging him to “find” just enough votes to reverse the outcome.
Trump and his closest advisors worked with attorneys and partisans to bring fifty-nine absolutely baseless lawsuits to challenge the integrity of various statewide election contests. These cases were textbook examples of malicious prosecutions, which by definition are lawsuits brought without any basis in fact or law for an improper purpose. Usually, the improper purpose is to extort a nuisance settlement from an unlucky defendant, but in this instance Trump’s improper purpose was to use baseless lawsuits to sow public doubt over the outcome of a national election that he unambiguously lost by more than seven million votes and seventy-four electoral votes.
Trump repeatedly and successfully exhorted and incited his militants to harass and terrorize Democrats, election-poll workers, election officials, and even members of Congress while they certified President Biden’s election.
Before the election, Trump had his postmaster general try to change postal procedures to prevent or hinder the timely counting of mail-in votes, which Trump and his pollsters understood would be cast mostly by those who favored Biden.
To sow public doubt, Trump seized upon, contrived, and incessantly repeated completely bogus claims of election fraud. These claims rose to the level of actionable defamation. Trump used these claims as a pretext for issuing the above instructions and taking the above acts, which constitute election tampering writ large, and for which he has finally been indicted.
For these offenses, Trump and his closet advisors must be prosecuted to the full extent of the law and without fear or favor. Otherwise, we no longer have a republic governed by rule of law.
As for me, I am a true “live-and-let-live liberal” and therefore the very opposite of a law-and-order conservative. But when it comes to crimes of State, I am all in favor of resolute prosecution: if we lose our Republic and therefore our right to elect our leaders, then we must live at the pleasure of a despot, who might possibly be wise and benevolent, but is more likely to be corrupt and unfair; and no matter what kind of despot we might have, we will have no recourse against him.
[I clarify that, being a tolerant liberal, I am very different from our modern progressives, who at bottom are intolerant puritans with a strong punitive streak, and who in my estimation richly deserve Churchill’s immortal rebuke: “He has all of the virtues that I abhor, and none of the vices that I esteem” (or something like that). But here I digress.]
Indeed, I cannot sufficiently emphasize that this latest round of indictments against Herr Trump has been necessary ever since he committed crimes of State in public view in late 2020 and early 2021.
Let his prosecution and punishment serve as an example for the ages: if a man abuses the most powerful office in the country to try to cling to power and rob us of our essential liberties and democracy, he must pay a heavy price.