OPINION:
Special counsel Jack Smith’s 45-page indictment paints a picture of former President Donald Trump ruthlessly ignoring the law and the advice of those around him as he “spread lies … that he had actually won” the 2020 election.
The indictment is both weak and dangerous: weak because prosecutors will not be able to prove that Mr. Trump didn’t believe that he won the election, and dangerous because criminalizing political speech is a bridge too far.
The calculating Donald Trump portrayed in the indictment bears little resemblance to the Donald Trump whom the left has spent the last seven years deriding as blustering, reality-challenged and ego-driven. The entire indictment falls apart if Mr. Trump actually believed that there was significant election fraud and that the election had been stolen.
But the beauty of our justice system is that Mr. Trump doesn’t have the burden of proving anything, Prosecutors must prove Mr. Trump’s mental state beyond a reasonable doubt.
The indictment alleges that Mr. Trump knew his claims were false because his closest allies told him so. The first person Mr. Smith identifies is former Vice President Mike Pence.
Mr. Pence, the man Mr. Trump called a traitor and other vicious names, is someone whose counsel on the integrity of the 2020 election Mr. Trump esteemed? Please.
Mr. Smith makes a linear connection between what Mr. Trump heard from some people and what he believed to be true. Yes, many of his advisers told him the election was stolen. Mr. Smith’s indictment is notably silent about all of the people who, for a variety of reasons, chose to tell the president exactly what he wanted to hear.
Why is it not equally valid to suppose that those advisers had just as much impact on what Mr. Trump believed?
Mr. Trump chose to spend his last days in office surrounded by people telling him that America needed to “stop the steal.” Mike Lindell, the pillow guy, was an enthusiastic voice arguing that the election was stolen. Patrick Byrne, the founder of Overstock.com, informed Mr. Trump that there were deep conspiracies behind the “stolen” election.
Mr. Trump accepted advice from several friendly attorneys who convinced him that they could prove widespread fraud.
These voices, among others in the “election was stolen” camp, are the ones Mr. Trump heard. It is irrelevant if their message permeated because Mr. Trump liked what they had to say. Prosecutors must still prove that Mr. Trump knew he was promoting a lie.
America’s justice system allows a prosecutor to bring a weak indictment with untested legal theories because a defendant, even a former president, has due process protections. Mr. Smith will be judged in a court of law, in the court of public opinion, and by history for seeking this indictment.
I suspect the judgment will not be favorable.
Mr. Smith’s far greater offense, which will forever be part of his legacy, is his refusal to respect the First Amendment’s protections of speech — even factually incorrect speech. Mr. Trump, like every American, has a right to think anything he wants. He is entitled to his views, however reality-challenged others may believe them to be.
Mr. Smith’s flimsy indictment is part of a distressing attack by those on the left on “disinformation.” Our system of public discourse and our Constitution not only allow but actually encourage viewpoint expression, including incorrect and inaccurate beliefs.
Yes, freedom of expression implies that there will be disinformation. The antidote to disinformation is correct information, not cancel culture or criminalizing speech.
Whether Mr. Trump’s “Stop the Steal” campaign stemmed from an intent to lie or a good-faith belief that the election results were fraudulent will be decided by a jury and federal appellate courts.
What we do know is that his campaign to reverse the election results was stymied by his own vice president, by a majority of Republican U.S. senators and a significant minority of members of Congress, by governors, secretaries of state and countless state legislators who disagreed in good faith with the premise that the election results should be overturned.
The chilling consequences of Mr. Smith’s indictment will result in less debate, less discourse, less political engagement, and more fear. In stretching the law to cover facts and create a criminal case that shouldn’t exist, Mr. Smith is undermining the very system of representative government that rejected Mr. Trump’s efforts in the first place.
• Rep. Ken Buck is a former federal prosecutor and is currently a congressman from Colorado’s 4th District. He is a member of the House Foreign Affairs and Judiciary committees. He voted to certify the electors on Jan. 6, 2021.
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