Another Heated Indictment; What About First Amendment?

By Bill Doughty–

In June we said the top summer read is not a book. It is the short, free, and compelling indictment of the former president and his valet, former Navy CSCS Waltine Nauta for taking, concealing, and lying about classified documents, including military and intelligence secrets.

It an uncomfortable but necessary read for anyone interested in national security, protecting the rule of law, and accountability for those who violate the Constitution. The original indictment was updated with a superseding indictment last week that included more details and another defendant, valet Carlos De Oliveira.

Now there is another, perhaps even more important late-summer “must-read”: the second federal indictment of former President Donald J. Trump, unveiled by Special Prosecutor Jack Smith, this time for conspiracies to defraud the United States, obstruct an official proceeding, and prevent rights to vote and have votes counted; as well as the “obstruction of and attempt to obstruct an official proceeding.”

Arguably, it is not just a right but also a duty for every citizen to read this latest indictment, which refers to Trump as the Defendant. While Trump has the expectation and right to a presumption of innocence until his guilt is proven, this indictment shows a lot of evidence of smoke. And where there is smoke…

Constitutional Duty

Military service members, federal employees, elected lawmakers, and national leaders take an oath to uphold and protect the Constitution, so the indictment has special relevance to them.

It narrates the details and presents some of the evidence of the Defendant’s efforts, along with co-conspirators to change the results of the 2020 presidential election by disseminating knowingly false claims designed to “create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”

“Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results.”

The indictment lists several conspiracies as well as the relevant laws Trump violated. “Each of these conspiracies –– which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud –– targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (‘the federal government function’).”

Efforts to subvert the election culminated on January 6, 2021, when Trump and some of his co-conspirators assembled, riled up, and then aimed a mob of protesters toward the U.S. Capitol. Many members of the mob violently assaulted law enforcement officers and sought to assassinate Speaker of the House Nancy Pelosi, Vice President Mike Pence, and others. Their ultimate goal was to stop the counting of electoral votes that would show the results of the election.

“This federal government function –– from the point of ascertainment to the certification –– is foundational to the United States’ democratic process and until 2021, had operated in a peaceful and orderly manner for more than 130 years,” Special Prosecutor Jack Smith writes.

The United States Constitution is mentioned several times in the indictment.

Where There Is Smoke…

Lawyers and apologists for the former president have said that Trump had a First Amendment freedom-of-speech right under the Constitution to say anything he wanted to say.

Supreme Court Justice Robert Jackson (1892-1954) called the First Amendment’s right to free speech a “fixed star in our constitutional constellation.” However, the Supreme Court has determined their are limits to speech, especially when crimes and violence are involved.

Justice Oliver Wendell Holmes Jr. (1841-1935) wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Later, Holmes called for a “clear and present danger” test, writing, “it is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.”

Considering the violence of J6, in which several people were killed, lawmakers were threatened, and a coup was attempted, one could argue that the First Amendment freedom-of-speech clause does not apply. In fact, Smith addresses the issue in the third paragraph of the indictment, noting “The Defendant had a right, like every American, to speak publicly about the election…”

The question is not about speech, but about actions. And just because an attempted coup was not successful, it does not abrogate the crime of attempting one. In Holmes’s example of the sin of shouting fire in a crowded theatre, there doesn’t have to be an actual fire for such an act to be a crime.

Trump is being arrested and arraigned today in the federal courthouse in Washington D.C., the same courthouse where more than one hundred J6 insurrectionists have been arraigned.