Are the Trump Election-Interference Indictments a ‘Criminalization’ of Speech and Politics?

Yesterday, we posted my column on Fulton County district attorney Fani Willis’s indictment of former president Donald Trump and 18 others. The column addressed the RICO conspiracy charge that is the foundation of the state of Georgia’s case, and in it I said I’d address some other issues in separate posts.

Let’s talk free speech.

I ended the RICO column comparing Biden Justice Department special counsel Jack Smith’s election-interference conspiracy charges to Willis’s RICO conspiracy count. A comparison with Smith’s indictment is also useful in considering the First Amendment issues that have been raised in these politically charged cases. In short, Willis’s indictment is more troubling on this score.

Up front, Smith acknowledges that, because of our robust commitment to free political speech, Trump and his confederates had a right to peddle even false information to the public – in this instance, about whether there had been outcome-determinative fraud in the 2020 election. People only get crosswise with the criminal law when their speech is part of the commission of a statutory crime.

Apropos of that, I have disagreed with Trump and others who portray Smith’s indictment as a “criminalization of free speech.” In a long discussion about the indictment last week with our old pal Jonah on The Remnant, and again yesterday with our friends at The Commentary Magazine Podcast, I tried to explain that, as far as “criminalization” is concerned, the First Amendment prohibits legislatures from making it a crime to utter particular words. Free-speech principles have never barred the use of words as evidence that an accused committed acts or conspiracies that the legislature has made crimes.

Indeed, it is a commonplace for prosecutors to introduce evidence of things said by a defendant to prove what he did and, especially, the mens rea components of the defendant’s knowledge and intent. That should be obvious. To reiterate my usual example, if in the back of the social club, a mafia boss tells an underling, “Whack that guy,” he does not have a valid First Amendment objection to the government’s introduction of that statement as evidence in his murder trial.

The discussion about the “criminalization of free speech,” and relatedly the “criminalization of politics,” is confusing because it conflates prudential considerations and legal rules. Those are two different things, and they must be distinguished.

I’ve frequently said I subscribe to former attorney general Bill Barr’s dictum about the crossroads of law and politics: Law enforcement should avoid intruding on the electoral process in the absence of a “meat and potatoes” crime — i.e., a really serious offense that is supported by convincing evidence. This approach recognizes that, while no one is above the law, not every criminal violation results in an indictment. Prosecutorial discretion always applies, and sometimes the public interest in prosecuting a crime is outweighed by other public interests.

One such interest, a critical one, is avoiding the appearance (let alone the reality) that politically motivated law-enforcement officials are putting their thumb on the scale to decide an election. To avoid undermining public trust in the nonpartisan administration of justice, prosecutors should thus avoid charging an esoteric crime that is difficult to grasp — one that may signal a prosecutor is creatively stretching the law to torment a political foe, rather than evenhandedly targeting misconduct that Congress meant to outlaw.

On the other hand, if a person commits a serious, easily grasped crime for which there is convincing evidence, being a candidate for office should not be immunity from prosecution. After all, if law-enforcement officials cited an upcoming election as a rationalization for failing to prosecute meat-and-potatoes crimes that would normally be charged, that would be a similarly sinister form of putting their thumb on the political scale.

All of that is prudential. There is no doubt that if there is a criminal offense, even a petty one, prosecutors are authorized to charge it. Prudential guidelines address whether they should charge it. They navigate the gray areas, there being lots of room for disagreement about what a “serious crime” is, what “convincing evidence” is, what weight should be accorded competing public interests, and so on. Prudentially, our presumption ought to be that, absent clear, serious crime, prosecutors should avoid intruding law enforcement into politics. When they intrude based on dubious crimes or flimsy evidence, we regard this as a criminalization of politics because it signals malevolence on the part of the prosecutor and/or the incumbent administration, which would not treat others, especially its political allies, the same way.

But let’s say the prosecutor charges a criminal case. At that point, we’re beyond prudential considerations. What’s done is done. Now, in the four corners of the indicted case, we must grapple with, not prudential guidelines, but the legal rules that govern how speech evidence is treated in criminal litigation.

According to the law, prosecutors get to use speech as evidence to prove crimes — not to penalize the speech itself. This distinction is not always easy to see. In an incitement case for example, the speech is the crime (which does not raise constitutional problems because free-speech principles do not protect incitement). But that’s rare. Usually, the utterance of the words is not a crime, but it can be used by prosecutors to prove crimes.

Take an example that often came up in my terrorism-prosecutor days. You have a First Amendment right to say, “America is an evil country that should be attacked.” Yet, if I’ve charged you with conspiracy to bomb a government building, I get to prove to the jury that you said, “America is an evil country that should be attacked.” I am not criminalizing your speech. The statement itself is not charged as a crime, and you are not in peril of being convicted for making the statement — the Constitution would forbid that. But if I have other evidence that connects you to the bombing of the building (e.g., you were seen surveilling it late at night, you purchased components that can be used in bomb-making, I have phone records showing that you’ve been in contact with a jihadist who built bombs overseas), then the Court is going to allow me to prove your statement. It is relevant to prove intent and motive in connection with the charge of bombing conspiracy. If you are found guilty, your conviction will be for bombing conspiracy, not for political dissent.

Bottom line: Whether it’s proper to use speech as evidence hinges on whether we are talking about its being evidence of a crime, as opposed to evidence that the accused holds unpopular views, or that he is a bad person in general.

In a subsequent post on this same topic of whether speech and politics are being criminalized, I’ll discuss why Fani Willis’s state election-interference indictment in Georgia is more troubling than Jack Smith’s federal election-interference indictment in Washington.