Bad January 6 Takes

Image by Quinta Jurecic.

Jason Willick, opinionist, in The Washington Post:

The strongest part of Trump’s Jan. 6 indictment has its own weaknesses

You see, the indictment makes a whole big deal of how Trump totally had a First Amendment right to tell all the lies he wanted about the 2020 election, and yet:

Yet the bulk of the indictment is devoted to recounting instances where Trump did just that. It summarizes at length his false tweets, his false retweets, and his false statements to supporters, advisers, state politicians and his own vice president. The indictment shows that after losing the 2020 election, the former president launched a malicious campaign of political lies.

Trump’s many lies, the indictment says, were “integral to his criminal plans” to overturn the 2020 election. But if Trump “had a right” to lie about the election, by the indictment’s own admission, then which acts make him subject to prosecution? The charges are at their weakest for failing to clearly disentangle the two.

Sit down, kid, and I'll see if I can explain.

You see, in our happy constitutional republic, may God bless it, we actually have many rights. For instance every American individual has a right (discovered by Justice Scalia in 2008—apparently it was right there in the Second Amendment all the time! it just looked like it was saying something completely different) to keep and bear firearms for personal use. And yet we do not have a right to take our firearm to Fifth Avenue in Manhattan and shoot some random person dead with it. How, you ask, can that be? Because your right to keep and bear firearms does not mean you are allowed to use it to commit crimes, such as homicide. So keep it in your pants.

The same goes for your God-given right under the First Amendment to tell all the fool lies you want. You can! But you cannot use a lie to commit a crime, such as libel or perjury. I bet you already knew that, if you thought about it. So does Trump, for that matter: for example, Trump never sat in a courtroom under oath and told the judge that the 2020 election was stolen from him. He saved that, wisely, for his patsies in the press and his rally audiences.

He's not so good on the defamation side, having just lost $5 million last April for his lies about the author E. Jean Carroll, and being likely to lose more in the near future.

In the same way, you also cannot use a lie to commit fraud, and Trump seems to have some trouble grasping that. For instance, if you own a multilevel marketing scheme disguised as a university, you are allowed to brag to your friends, falsely, about what a great university it is, but not to the rubes who are shelling out the money for the worthless classes. When you lie to them about the quality of the classes and they believe you to the extent of giving you the money, you are setting yourself up to be forced to pay a $25-million settlement, as then-President Trump finally did in the Trump University case in 2018, after he'd exhausted all the avenues of appeal.

Lies are to fraud what guns are to homicide. Constitutionally speaking. You can keep and bear them, absolutely, but you need to watch what you do with them. 

That's why Trump's lies about the 2020 election are mentioned in the indictment, because of what he used them for. He falsely claimed that he had won the election ("by a lot") and Democrats had fraudulently stolen it, not just for fun, or wounded pride, but as an essential part of his conspiracies to defraud the United States and to obstruct and disrupt official proceedings and to deprive people of their rights. Allegedly. He had to tell his lies to make these things, the things with which he is charged in the indictment, happen.  

The lies he told are listed in the indictment because they are the weapons he used (and there is no "stand-your-ground" exception). The caution about First Amendment free speech rights is provided in the indictment to make it clear that Trump's charges have nothing to do with that. Obviously the prosecutorial team knows that Trump's lawyers will claim his free speech rights are being assaulted, so they are carefully foreclosing that as a defense. If you really can't understand that, you need to look for another job.