Free Speech or Criminal Conduct? The Key Factor in the DOJ’s Case Against Trump

A key component of the Department of Justice’s second indictment of former President Donald Trump is that he spread “knowingly false claims” following the 2020 election. If Trump believes he won the election, he could argue his actions are protected under the First Amendment. 

Alan Dershowitz, a constitutional lawyer who previously defended Trump, told Newsweek (Center bias) that Trump could successfully argue his actions are protected under the First Amendment “unless the government can prove beyond reasonable doubt that he actually knew and believed he had lost fairly.”

Criminal Actions? The New York Times Opinion (Left bias) editorial board wrote, “Demonstrating Mr. Trump’s knowledge that he was lying will be central to the prosecution’s case when it comes to trial, because Mr. Smith wants to make clear that Mr. Trump wasn’t genuinely trying to root out credible instances of voter fraud.” The board drew a distinction between Trump’s words and Trump’s actions, arguing, “As much as defense lawyers are trying to frame the case as an attack on Mr. Trump’s free speech, the indictment makes clear that it was his actions after Election Day that were criminal.”

Impeachment Do-Over? The National Review (Right bias) editorial board argued the indictment seeks to “criminalize protected political speech” and “shouldn’t stand.” The board determined, “Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud” and that the “Biden Justice Department is attempting to use the criminal process as a do-over for a failed impeachment.”