Thinking out loud: 1st Amendment protects Trump’s speech but not his illegal actions

Published 6:00 am Saturday, August 12, 2023

Morrison

It was not surprising when former President Donald Trump was indicted on charges relating to the Jan. 6, 2021, attack on the U.S. Capitol. The indications that he would be indicted have been coming for months.

Trump’s indictment is unusual. It doesn’t simply list the charges against him. Instead, it is a “speaking indictment,” one which details the facts that underlie each of the charges. And it documents in spellbinding detail how Trump conspired to overturn the legitimate results of the 2020 presidential election, knowingly using false claims of election fraud to obstruct the legal process by which votes are collected, counted and certified.

The indictment demonstrates how Trump convinced supporters they could designate themselves as “electors,” and helped set up sham processes, not sanctioned by law, for counting and certifying votes; how Trump used false claims of election fraud to pressure state legislators and election officials to subvert the election process and change electoral votes cast for Biden; and how Trump attempted to have the Department of Justice send letters to officials in seven states falsely claiming that the DOJ had identified significant election concerns and urging state legislators to make it possible to choose the fraudulent electors over legitimate electors. It details how Trump called for his supporters to be present on Jan. 6 to pressure Congress to accept the false electoral votes, and finally, how Trump repeatedly pressured the vice president to reject the true electoral votes so that the votes of Trump’s own false “electors” could be counted instead.

The indictment also documents that despite his bellicose claims to the contrary, Trump was well aware that he’d lost the election. Trump’s trusted advisers and other officials repeatedly told him that his claims of fraud had been investigated — in many cases, by Trump’s own supporters — and that there was no large number of votes cast by dead voters, or by nonresidents or noncitizens, or that any significant number of ineligible votes had been cast in any state. There were no voting machines that had changed votes for Trump to Biden.

Trump’s defenders argue, disingenuously, that he is being prosecuted in violation of his First Amendment right to say whatever he wants about the election and its results. But the indictment itself notes that — like any other American — Trump is free to express his opinions about the election. Instead, Trump has been indicted for his illegal actions in conspiring to stay in office despite being defeated. And although words and speech may be protected, illegal actions are not.

The indictment is deeply disturbing because it documents Trump’s precise, step-by-step actions to maintain power after he knew he lost the election. The indictment shows that Trump was willing to undermine the trust of Americans in our own election process and to upend the stability of the United States itself to remain in power.

It shows how close our nation came to danger.

But the indictment is also hopeful. In addition to showing how Trump conspired to seize control of the government by illegally remaining in power, it documents how, time and again, individuals — state and federal legislators and officials — stood strong to protect our democratic process. They firmly asserted the truth: that there were never fraudulent votes in a number that would have altered the outcome of the election; that a candidate cannot just create an “alternative” electoral system with handpicked “electors” to replace the valid legal voting process; and that it is not legal, nor acceptable, for any government official to obstruct the process by which our votes are collected, counted or certified.

Below us, the town emanated a soft golden glow, and above, a million stars danced in the desert’s nighttime sky. Municipalities in Pima County discuss their lighting restrictions in terms of the benefits to nocturnal wildlife including migrating birds, the conservation of energy and the millions of tax dollars saved.

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