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      Trump Lawyers Assail Gag Order Request in Election Case

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      The former president’s legal team said that an order limiting his public statements about the case would strip him of his First Amendment rights.Lawyers representing former President Donald J. Trump against federal charges accusing him of seeking to overturn the 2020 election offered an outraged response on Monday to the government’s request for a gag order, saying the attempt to “muzzle” him during his presidential campaign violated his free speech rights.In a 25-page filing, the lawyers sought to turn the tables on the government, accusing the prosecutors in the case of using “inflammatory rhetoric” themselves in a way that “violated longstanding rules of prosecutorial ethics.”“Following these efforts to poison President Trump’s defense, the prosecution now asks the court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden,” one of the lawyers, Gregory M. Singer, wrote. “The court should reject this transparent gamesmanship.”The papers, filed in Federal District Court in Washington, came 10 days after prosecutors in the office of the special counsel, Jack Smith, asked Judge Tanya S. Chutkan, who is overseeing the election interference case, to impose a narrow gag order on Mr. Trump. The order, they said, was meant to curb Mr. Trump’s “near-daily” barrage of threatening social media posts and to limit the effect his statements might have on witnesses in the case and on the potential jury pool for the trial. It is scheduled to take place in Washington starting in March.The lawyers’ attempt to fight the request has now set up a showdown that will ultimately have to be resolved by Judge Chutkan, an Obama appointee who has herself experienced the impact of Mr. Trump’s menacing words.One day after the former president wrote an online post in August saying, “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” Judge Chutkan received a voice mail message in her chambers from a woman who threatened to kill her. (The woman, Abigail Jo Shry, has since been arrested.)Gag orders limiting what trial participants can say outside of court are not uncommon, especially to constrain pretrial publicity in high-profile cases. But the request to gag Mr. Trump as he solidifies his position as the front-runner for the Republican presidential nomination has injected a current of political tension into what was already a fraught legal battle.That tension has only been heightened by the fact that Mr. Trump has placed the election interference case — and the three other criminal indictments he is facing — at the heart of his campaign.His core political argument — that he is being persecuted, not prosecuted — may be protected in some ways by the First Amendment but has also put him on what could be a collision course with Judge Chutkan. Early in the case, she warned Mr. Trump that she would take measures to ensure the integrity of the proceedings and to keep him from intimidating witnesses or tainting potential jurors.Almost from the moment Mr. Trump was indicted, his legal team has raised a First Amendment defense, arguing that prosecutors had essentially charged him for expressing his opinions about the 2020 elections. In the new court papers, Mr. Singer repeated those arguments, adding that Mr. Trump’s public statements about the case had not intimidated anyone or prejudiced the jury pool.He also said the government’s proposed gag order was not narrowly tailored, as prosecutors had claimed. He called it “sweepingly broad” and “undefined,” encompassing any potential witnesses in the case — including those “who are actively waging political campaigns against President Trump.”“The prosecution would silence President Trump, amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution,” Mr. Singer wrote.Mr. Trump has long made a habit of attacking his enemies in vivid and often vicious fashion, making use of social media in particular. But now that he is a defendant, facing four indictments in four cities, his penchant for threatening and bullying those in his way has bumped up against the traditional strictures of the criminal justice system.In their request for the gag order earlier this month, prosecutors said Mr. Trump had repeatedly referred to Mr. Smith as “deranged” and has called Judge Chutkan “a radical Obama hack” and a “biased, Trump-hating judge.”They also noted that Mr. Trump has attacked the residents of Washington who one day will be called upon to serve as the jury pool for his trial. In one post, Mr. Trump claimed he would never get a fair hearing from those who lived in the “filthy and crime-ridden” city, which he said “is over 95% anti-Trump.”Mr. Singer played down the impact of these statements, saying that Mr. Trump had “never called for any improper or unlawful action” and that no one had truly been harmed by his words.“Every hearing in this case has gone forward on schedule, without incident,” he wrote, “and there is zero reason to believe that will change due to President Trump’s political expressions.”Picking up an argument it has used before, Mr. Trump’s legal team also sought to paint the prosecution of the former president as a political attack launched by President Biden — even though the case is being led by Mr. Smith, who was appointed by the Justice Department as an independent prosecutor.“At bottom, the proposed gag order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls,” Mr. Singer wrote. 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      Request for Gag Order on Trump Raises Free Speech Dilemma

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      By putting the prospect of political violence at the heart of their argument to limit the former president’s statements about the election case, federal prosecutors raised issues that have little precedent.The request by prosecutors that a judge impose a gag order on former President Donald J. Trump in the federal election-subversion case presents a thorny conflict between the scope of his First Amendment rights and fears that he could — intentionally or not — spur his supporters to violence.There is little precedent for how the judge overseeing the case, Tanya S. Chutkan, should think about how to weigh strong constitutional protections for political speech against ensuring the functioning of the judicial process and the safety of the people participating in it.It is one more example of the challenges of seeking to hold to account a norm-shattering former president who is being prosecuted in two federal cases — and two state cases — as he makes another bid for the White House with a message that his opponents have weaponized the criminal justice system against him.“Everything about these cases is making new law because there are so many gaps in the law,” said Paul F. Rothstein, a law professor at Georgetown University and a criminal procedure specialist. “The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap.”Citing a spate of threats inspired by the indictment of Mr. Trump in the election case, the special counsel overseeing the prosecutions for the Justice Department, Jack Smith, asked Judge Chutkan this month to order the former president to cease his near-daily habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.A proposed order drafted by Mr. Smith’s team would also bar Mr. Trump and his lawyers from making — or causing surrogates to make — public statements, including on social media, “regarding the identity, testimony or credibility of prospective witnesses.” The motion cited Mr. Trump’s attacks on former Vice President Mike Pence and former Attorney General William P. Barr, who refused to go along with his efforts to overturn the 2020 election.The draft order would allow Mr. Trump to say he denies the charges “without further comment.”Jack Smith, the special counsel, asked the judge to order Mr. Trump to cease his habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.Doug Mills/The New York TimesA version of the motion was unsealed late last week. Judge Chutkan, of the Federal District Court in Washington, has ordered Mr. Trump’s legal team to file any opposition to it by Monday and is likely to hold a hearing on the request next month. A spokesman for Mr. Trump has called the request “blatant election interference” and a corrupt and cynical attempt to deprive the former president of his First Amendment rights.Gag orders limiting what trial participants can say outside of court are not uncommon, especially to limit pretrial publicity in high-profile cases. Courts have held that orders barring participants from certain public comments are constitutional to avoid prejudicing a jury, citing the public interest in the fair and impartial administration of trials.The context of the gag request for Mr. Trump, though, is different in fundamental ways.Mr. Smith’s filing nodded to the potential for Mr. Trump’s statements to complicate the process of seating an unbiased jury in the case, which is scheduled to go to trial in March. But the request for the gag order focused primarily on a different concern: that Mr. Trump’s angry and vengeful statements about the proceedings against him are putting people in danger now.The motion cited “multiple threats” to Mr. Smith. It noted that another prosecutor, Jay I. Bratt, had been subject to “intimidating communications” after the former president targeted him in “inflammatory public posts,” falsely saying Mr. Bratt had tipped off the White House before Mr. Trump’s indictment in the case accusing him of mishandling classified documents.And it cited the case of a Texas woman who has been charged with making death threats to Judge Chutkan last month. She left the judge a voice message using a racist slur, court filings show, and said, “You are in our sights — we want to kill you.”“If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch,” the message said, adding that “you will be targeted personally, publicly, your family, all of it.”Prosecutors connected their request to the threats and harassment that election officials and other people carrying out election-related duties experienced after Mr. Trump attacked them in late 2020 as part of his false claims that the election had been stolen.“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” the motion said, adding: “Given the defendant’s history described above and the nature of the threats to the court and to the government, it is clear that the threats are prompted by the defendant’s repeated and relentless posts.”In that sense, the request for the gag order was as much about what is sometimes called stochastic terrorism — the idea that demonizing someone through mass communication increases the chances that a lone wolf will be inspired to attack the target — as it was about more traditional concerns of keeping a jury from being influenced by statements outside of court.The request raises both legal and political issues and carries the risk of playing into Mr. Trump’s hands.The former president and his defense team have made clear that they want people to think the case is about whether he had a First Amendment right to say whatever he wanted about the election. Mr. Smith sought to head off that move by acknowledging in the indictment that Mr. Trump had a right to lie to the public and by not charging him with inciting the Capitol riot.But the gag order request is directly about what Mr. Trump is allowed to say. Moreover, it has given him more fodder to portray the case as intended to undercut his presidential campaign — and, if he is under a gag order and loses again in 2024, to once again tell his supporters that the election was rigged.Judge Tanya S. Chutkan of the Federal District Court in Washington has ordered Mr. Trump’s legal team to file any opposition to the motion by Monday.Administrative Office of the U.S. Courts, via Associated PressWhen the motion became public, Mr. Trump riffed on it with apparent glee.“They want to see if they can silence me. So the media — the fake news — will ask me a question. ‘I’m sorry, I won’t be able to answer’ — how do you think we’ do in that election?” Mr. Trump said at a summit of religious conservatives. “So we are going to have a little bit of a fun with that, I think. That’s a tough one. Can you imagine?”Implicit in the ways he could “have a little bit of a fun” is the question of how Judge Chutkan could enforce any such order if Mr. Trump skirted its edges or even boldly defied its limits. It would be one thing for her to impose a fine, but if he refused to pay or to tone down his statements, a next step for a judge in a normal case would be to order imprisonment.Any such step in this case would be legally and politically explosive.At a hearing last month, Judge Chutkan vowed to “take whatever measures are necessary to protect the integrity of these proceedings” and warned lawyers for Mr. Trump that they and their client should consider their public statements in the case.“I intend to ensure the orderly administration of justice in this case, as I would with any other case,” she said, “and even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.”The judge also suggested that she could speed up the trial date as an alternative penalty. “The more a party makes inflammatory statements about this case, which could taint the jury pool or intimidate potential witnesses,” she said, “the greater the urgency will be that we proceed to trial quickly to ensure a jury pool from which we can select an impartial jury.”Most cases about gag orders affecting criminal defendants have focused on limits imposed on what their lawyers, not the defendants themselves, can say outside of court — in part because defense lawyers typically order their clients to say nothing in public about their cases anyway. That is one of many ways Mr. Trump operates from a different playbook.In a 1991 case, which prosecutors cited in their motion, the Supreme Court upheld local court rules that bar defense lawyers from making comments outside court that are substantially likely to materially prejudice a jury. Such a regulation, it said, “constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the state’s interest in fair trials.”But the Supreme Court also suggested that greater speech restrictions might be permissible on lawyers because they are officers of the court. The justices have never addressed what standard a gag order on a defendant must meet to pass First Amendment muster. A handful of appeals courts have addressed gag orders imposed on trial participants who are not lawyers and set different standards.Margaret C. Tarkington, a law professor at Indiana University, Indianapolis, and a specialist in lawyers’ free-speech rights, predicted that any gag order would be more likely to survive on appeal if Judge Chutkan barred Mr. Trump only from attacking witnesses and jurors. The First Amendment provides particularly strong protections for criticism of government officials, she noted.Still, Professor Tarkington acknowledged that a gag order that still permitted demonizing the judge and prosecutors would not address much of the concern that prosecutors are raising. She also said past gag-order cases offered few guideposts because Mr. Trump is such a unique figure: His megaphone and its potential impact on his more extreme supporters — as demonstrated by the Capitol attack on Jan. 6, 2021 — puts him in a different realm.“It’s a really hard argument in normal circumstances to say the government, who is prosecuting someone, can shut them up from defending themselves in public,” Professor Tarkington said. “What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power and the defendant has none. But in this case, you have a defendant who has very significant power.”In their motion to Judge Chutkan, prosecutors also cited an appeals court ruling in 2000 that involved a rare example of a defendant who challenged a gag order. A judge had prevented all trial participants from making statements outside the court “intended to influence public opinion” about the case’s merits, and the defendant, an elected insurance commissioner in Louisiana named Jim Brown, wanted to be exempted. But the appeals court upheld it.The motion said the Brown precedent showed that the reasoning of the 1991 Supreme Court case upholding gag orders on defense lawyers “applies equally” to defendants. But prosecutors omitted another seemingly relevant factor: The gag order was lifted for about two months to avoid interfering with Mr. Brown’s re-election campaign and reimposed only after the election was over.“Brown was able to answer, without hindrance, the charges of his opponents regarding his indictment throughout the race,” the appeals court noted, adding, “The urgency of a campaign, which may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications, has passed.” More

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      Behold the Free Speech Chutzpah of the Republican Party

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      A solid majority of Republicans continues to believe that Donald Trump won the 2020 election — evidence to the contrary notwithstanding. Virtually all Democrats believe that Trump did, in fact, lose the 2020 election and that Biden won fair and square.Now in an extraordinary display of chutzpah, Representative Jim Jordan, Republican of Ohio, and fellow Republicans on the House Judiciary Committee have accused Democrats of violating the First Amendment rights of election deniers.In a June 26, 2023, interim staff report, Jordan and his colleagues charged that the Biden administration “colluded with big tech and ‘disinformation’ partners to censor” those who claimed that Trump won in 2020.The report, “The Weaponization of CISA: How a ‘Cybersecurity’ Agency Colluded With Big Tech and ‘Disinformation’ Partners to Censor Americans,” makes the argument thatThe First Amendment recognizes that no person or entity has a monopoly on the truth, and that the “truth” of today can quickly become the “misinformation” of tomorrow. Labeling speech “misinformation” or “disinformation” does not strip it of its First Amendment protection. As such, under the Constitution, the federal government is strictly prohibited from censoring Americans’ political speech.These civil libertarian claims of unconstitutional suppression of speech come from the same Republican Party that is leading the charge to censor the teaching of what it calls “divisive concepts” about race; the same party that expelled two Democratic members of the Tennessee state legislature who loudly called for more gun control after a school shooting; the same party that threatens to impeach a liberal judge in North Carolina for speaking out about racial bias; the same party that has aided and abetted book banning in red states across the country.In other words, it is Republicans who have become the driving force in deploying censorship to silence the opposition, simultaneously claiming that their own First Amendment rights are threatened by Democrats.One of the most egregious examples of Republican censorship is taking place in North Carolina, where a state judicial commission has initiated an investigation of Anita Earls, a Black State Supreme Court justice, because she publicly called for increased diversity in the court system.A June 2 Law360 piece examined the racial and gender composition of the North Carolina judiciary and found “that out of 22 appellate jurists — seven state Supreme Court justices and 15 Court of Appeals judges — 64 percent are male and 86 percent are white.”The article then quoted Earls: “It has been shown by social scientists that diverse decision-making bodies do a better job. … I really feel like everyone’s voice needs to be heard, and if you don’t have a diverse judicial system, perspectives and views are not being heard, you’re not making decisions that are in the interests of the entire society. And I feel like that’s wrong.”On Aug. 15, the North Carolina Judicial Standards Commission notified Earls that it was opening an investigation “based on an interview you since gave to the media in which you appear to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision-making.”Earls’s interview, the notification letter continued, “potentially violates Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’”On Aug. 29, Earls filed suit in federal court charging that there is “an ongoing campaign on the part of the North Carolina Judicial Standards Commission to stifle” her First Amendment free-speech rights “and expose her to punishment that ranges from a letter of caution that becomes part of a permanent file available to any entity conducting a background check to removal from the bench.”At the center of Republican efforts to censor ideological adversaries is an extensive drive to regulate what is taught in public schools and colleges.In an Education Week article published last year, “Here’s the Long List of Topics Republicans Want Banned From the Classroom,” Sarah Schwartz and Eesha Pendharkar provided a laundry list of Republican state laws regulating education:Since January 2021, 14 states have passed into law what’s popularly referred to as “anti-critical race theory” legislation. These laws and orders, combined with local actions to restrict certain types of instruction, now impact more than one out of every three children in the country, according to a recent study from UCLA.Schwartz and Pendharkar also noted that “many of these new bills propose withholding funding from school districts that don’t comply with these regulations. Some, though, would allow parents to sue individual educators who provide banned material to students, potentially collecting thousands of dollars.”What’s more, “Most prohibited teaching a list of ‘divisive concepts,’ which originally appeared in an executive order signed by then-President Donald Trump in fall 2020.”The Trump order, “Combating Race and Sex Stereotyping,” included prohibitions on the following “divisive concepts”:That an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; that any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or that meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.The censorship effort has been quite successful.In a February 2022 article, “New Critical Race Theory Laws Have Teachers Scared, Confused and Self-censoring,” The Washington Post reported that “in 13 states, new laws or directives govern how race can be taught in schools, in some cases creating reporting systems for complaints. The result, teachers and principals say, is a climate of fear around how to comply with rules they often do not understand.”Larry Summers, a former president of Harvard who is a professor of economics there, argued in an email that issues of free speech are not easily resolved.The problem, Summers wrote, “comes from both sides. Ron DeSantis’s efforts to limit what he regards as critical race theory is deplorable as are efforts on Ivy League campuses to discredit and devalue those with unfashionable beliefs about diversity or the role of genes or things military.”But, Summers continued,It’s sometimes a bit harder than the good guys make out. What about cultures of intolerance where those who, for example, believe in genetic determinism are shunned, and graduate students all exhibit their academic freedom rights to not be the teaching fellows of faculty with those beliefs. Does ideological diversity mean philosophy departments need to treat Ayn Rand with dignity or biology departments need to hear out creationism?“What about professional schools where professional ethics are part of what is being instilled?” Summers asked:Could a law school consider hiring a lawyer who, while in government, defended coercive interrogation practices? Under what circumstances should one accept, perhaps insist on university leaders criticizing speech? I have been fond of saying academic freedom does not include freedom from criticism but when should leaders speak out? Was I right to condemn calls for divesting in Israel as antisemitic in effect, if not intent? When should speech be attacked?There is, at this moment, a nascent mobilization on many campuses of organizations determined to defend free speech rights, to reject the sanctioning of professors and students, and to ensure the safety of controversial speakers.Graduates of 22 colleges and universities have formed branches of the Alumni Free Speech Alliance “to support free speech, academic freedom, and viewpoint diversity.”At Harvard, 133 members of the faculty have joined the Council on Academic Freedom at Harvard, dedicated to upholding the free speech guidelines adopted by the university in 1990:Free speech is uniquely important to the university because we are a community committed to reason and rational discourse. Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching, and learning.Steven Pinker, a psychology professor at the school and a founder of the group, wrote in an email that achieving this goal is much tougher than generally believed:To understand the recent assaults on free speech, we need to flip the question: Not why diverse opinions are being suppressed, but why they are tolerated. Freedom of speech is an exotic, counterintuitive concept. What’s intuitive is that the people who disagree with me are spreading dangerous falsehoods and must be stifled for the greater good. The realization that everyone feels this way, that all humans are fallible, that however confident I am in my beliefs, I may be wrong, and that the only way we can collectively approach the truth is to allow opinions to be expressed and then evaluate them, requires feats of abstraction and self-control.The example I cited at the beginning of this column — the charge that the Biden administration “colluded with big tech and ‘disinformation’ partners to censor” the claims of election deniers — has proved to be a case study of a successful Republican tactic on several fronts.Republicans claimed the moral high ground as the victims of censorship, throwing their adversaries on the defensive and quieting their opponents.On June 6, The Washington Post reported, in “These Academics Studied Falsehoods Spread by Trump. Now the G.O.P. Wants Answers,” thatThe pressure has forced some researchers to change their approach or step back, even as disinformation is rising ahead of the 2024 election. As artificial intelligence makes deception easier and platforms relax their rules on political hoaxes, industry veterans say they fear that young scholars will avoid studying disinformation.One of the underlying issues in the free speech debate is the unequal distribution of power. Paul Frymer, a political scientist at Princeton, raised a question in reply to my email: “I wonder if the century-long standard for why we defend free speech — that we need a fairly absolute marketplace of ideas to allow all ideas to be heard (with a few exceptions), deliberated upon, and that the truth will ultimately win out — is a bit dated in this modern era of social media, algorithms and most importantly profound corporate power.”While there has always been a corporate skew to speech, Frymer argued,in the modern era, technology enables such an overwhelming drowning out of different ideas. How long are we hanging on to the protection of a hypothetical — that someone will find the truth on the 40th page of a Google search or a podcast with no corporate backing? How long do we defend a hypothetical when the reality is so strongly skewed toward the suppression of the meaningful exercise of free speech?Frymer contended thatWe do seem to need regulation of speech, in some form, more than ever. I’m not convinced we can’t find a way to do it that would enable our society to be more just and informed. The stakes — the fragility of democracy, the increasing hatred and violence on the basis of demographic categories, and the health of our planet — are extremely high to defend a single idea with no compromise.Frymer suggested that ultimatelyWe can’t consider free speech without at least some understanding of power. We can’t assume in all contexts that the truth will ever come out; unregulated speech does not mean free speech.From a different vantage point, Robert C. Post, a law professor at Yale, argued in an email that the censorship/free speech debate has run amok:It certainly has gone haywire. The way I understand it is that freedom of speech has not been a principled commitment, but has been used instrumentally to attain other political ends. The very folks who were so active in demanding freedom of speech in universities have turned around and imposed unconscionable censorship on schools and libraries. The very folks who have demanded a freedom of speech for minority groups have sought to suppress offensive and racist speech.The framing in the current debate over free speech and the First Amendment, Post contends, is dangerously off-kilter. He sent me an article he wrote that will be published shortly by the scholarly journal Daedalus, “The Unfortunate Consequences of a Misguided Free Speech Principle.” In it, he notes that the issues are not just more complex than generally recognized, but in fact distorted by false assumptions.Post makes the case that there is “a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely.” In fact, he writes, “the difficulty we face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased.”He specifically faults a widely read March 2022 Times editorial, “America Has a Free Speech Problem,” that warnedAmericans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.Post observes thatNo such right exists in any well-ordered society. If I walk into a room shouting outrageous slurs, I should expect to be shamed and shunned. Only a demoralized community would passively accept irresponsibly hurtful speech.People constantly “balance self-restraint against the need for candor.”Arguments that the protection of free speech is crucial to the preservation of democracy, Post maintains, “encourage us to forget that the fundamental point of public discourse is the political legitimation of the state. Our public discourse is successful when it produces a healthy public opinion capable of making state power answerable to politics.”In Post’s view, polarization “is not a simple question of speech. It is the corrosive dissolution of the political commitments by which Americans have forged themselves into a single nation. If we conceptualize public discourse as a social practice, we can see that its failures stem from this fundamental problem.”In this context, Post concludes,Politics is possible only when diverse persons agree to be bound by a common fate. Lacking that fundamental commitment, politics can easily slide into an existential struggle for survival that is the equivalent of war. We can too easily come to imagine our opponents as enemies, whose victory would mean the collapse of the nation.In such circumstances, Post continues,Political debate can no longer produce a healthy and legitimate democratic will. However inclusive we may make our public discourse, however tolerant of the infinite realms of potential diversity we may become, the social practice of public discourse will fail to achieve its purpose so long as we no longer experience ourselves as tied to a common destiny.“We cannot now speak to each other because something has already gone violently wrong with our political community,” Post writes. “The underlying issue is not our speech, but our politics. So long as we insist on allegiance to a mythical free speech principle that exists immaculately distinct from the concrete social practices, we shall look for solutions in all the wrong places.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      How Free Speech and Willful Blindness Will Play Out in the Trump Prosecution

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      More than a decade ago, a divided Supreme Court ruled in United States v. Alvarez that an elected member of a district water board in California could not be prosecuted criminally for lying to an audience about winning the Medal of Honor. The court ruled that efforts to criminalize mere lying, without linking the lie to an attempt to gain a material advantage, posed an unacceptable threat to robust exercise of First Amendment rights.Given that decision, Jack Smith, the special prosecutor investigating former President Donald Trump, was right in concluding that Mr. Trump has a First Amendment right to lie to the general public.So, where’s the legal beef in the indictment arising from the events that culminated in the storming of the Capitol brought by Mr. Smith against Mr. Trump? It’s in the fact that Mr. Smith isn’t merely charging the former president with lying; he is contending that Mr. Trump lied to gain an unlawful benefit — a second term in office after voters showed him the exit. That kind of speech-related behavior falls comfortably within what the justices call “categorical exceptions” to the First Amendment like true threats, incitements, obscenity, depictions of child sexual abuse, fighting words, libel, fraud and speech incident to criminal conduct.As the court put it in 1949 in the case of Giboney v. Empire Storage and Ice Co., “it rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”That is why Mr. Smith will most likely seek to prove that the former president was engaged in “speech incident to criminal conduct” when he and his co-conspirators lied to state legislators, state election officials, gullible supporters, Justice Department lawyers and Vice President Mike Pence in an illegal effort to prevent Joe Biden from succeeding him as president. Since Mr. Trump is charged with, among other crimes, conspiracy to defraud the United States and to deprive people of the right to have their votes counted, Mr. Smith would clearly be right in arguing that the Alvarez decision doesn’t apply.Characterizing Mr. Trump’s words as “speech incident to criminal conduct” would neatly solve Mr. Smith’s First Amendment problem, but at a substantial cost to the prosecution. To win a conviction, the government must persuade 12 jurors to peer inside Mr. Trump’s head and find beyond a reasonable doubt that he knew he was lying when he claimed to be the winner of the 2020 election. If Mr. Trump actually believed his false assertions, his speech was not “incident to criminal conduct.”How can Mr. Smith persuade 12 jurors that no reasonable doubt exists that Mr. Trump knew he was lying? The prosecution will, no doubt, barrage the jury with reams of testimony showing that the former president was repeatedly told by every reputable adviser and administration official that no credible evidence of widespread electoral fraud existed, and that Mr. Pence had no choice but to certify Mr. Biden as the winner.But there also will likely be evidence that fervent supporters of Mr. Trump’s efforts fed his narcissism with bizarre false tales of result-changing electoral fraud, and frivolous legal theories justifying interference with Mr. Biden’s certification as president-elect. Those supporters could include Rudy Giuliani; Sidney Powell, a lawyer and purveyor of wild conspiracy theories; Jeffrey Clark, the acting head of the Justice Department’s civil division, who apparently plotted with Mr. Trump to unseat the acting attorney general and take control of the department; and John Eastman, the lawyer who hatched the plan that Mr. Pence refused to follow to keep Mr. Trump in power.Maybe Mr. Trump himself will swear to his good faith belief that he won. With all that conflicting testimony, how is a conscientious juror to decide for sure what was really going on inside his head?The answer lies in the Supreme Court’s doctrine of “willful blindness.” A dozen years ago, in the case of Global-Tech Appliances v. SEB, Justice Samuel Alito, writing for all but one justice, ruled that proof of willful blindness is the legal equivalent of proving guilty knowledge.As Justice Alito explained it: “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”In other words, when a defendant, like Mr. Trump, is on notice of the potential likelihood of an inconvenient fact (Mr. Biden’s legitimate victory), and closes his eyes to overwhelming evidence of that fact, the “willfully blind” defendant is just as guilty as if he actually knew the fact. While this argument is not a slam dunk, there’s an excellent chance that 12 jurors will find, beyond a reasonable doubt, that Mr. Trump hid from the truth by adopting willful blindness.Burt Neuborne is a professor emeritus at New York University Law School, where he was the founding legal director of the Brennan Center for Justice. He was the national legal director of the American Civil Liberties Union from 1981 to 1986.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Georgia Case Against Young Thug Hints at How Trump Case Could Unfold

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      The racketeering case against Young Thug has been marked by a plodding pace, an avalanche of pretrial defense motions and pressure on lower-level defendants to plead guilty.On its face, the criminal case accusing former President Donald J. Trump and 18 of his allies of conspiring to overturn his 2020 election loss in Georgia has little in common with the other high-profile racketeering case now underway in the same Atlanta courthouse: that of the superstar rapper Young Thug and his associates.But the 15-month-old gang case against Young Thug — which, like the Trump case, is being prosecuted by Fani T. Willis, the Fulton County district attorney — offers glimpses of how State of Georgia v. Donald John Trump et al. may unfold: with a plodding pace, an avalanche of pretrial defense motions, extraordinary security measures, pressure on lower-level defendants to plead guilty, and a fracturing into separate trials, to name a few.Young Thug, whose real name is Jeffery Williams, was indicted in May 2022 along with 27 others under Georgia’s Racketeer Influenced and Corrupt Organizations statute, known as RICO. Like Mr. Trump’s RICO indictment, the charging papers described a corrupt “enterprise” whose members shared common illegal goals.Prosecutors claim that Mr. Williams is a founder of Young Slime Life, or YSL, a criminal street gang whose members were responsible for murders and other violence, drug dealing and property crimes, with the purpose of illegally obtaining “money and property.” (The defendants say YSL is simply a record label.)But the case against Mr. Williams has been whittled to eight defendants, from an initial 28. Some defendants have had their cases severed because they struggled to find lawyers or were fugitives from justice, among other reasons. As is common in big racketeering cases, others have accepted plea deals, making admissions along the way that could help prosecutors in their effort to convict the remaining defendants.After raucous courtroom outbursts from fans and a number of bizarre incidents — including alleged efforts to smuggle drugs into court — security has been ratcheted up, with members of the public and the news media barred from the courtroom.And remarkably, the case has been stuck in the jury selection phase since January, with many potential jurors claiming they would suffer hardships if forced to participate in a trial that was originally estimated to last six to 12 months. On Thursday morning, a young woman — one of more than 2,000 potential jurors to come through the courthouse doors — was grilled about her life, her future plans to pursue medical training and whether serving would present a hardship.Young Thug, whose real name is Jeffery Williams, was indicted in May 2022 along with 27 others under the state’s RICO law.Steve Schaefer/Atlanta Journal-Constitution via A.P.She said it would not. When asked if she knew of Young Thug, she said she did, and that she liked his music — which, she added, would make hearing the case “surreal,” although she also said she could be fair-minded.The YSL indictment is significantly more complex than the Trump case, describing nearly 200 criminal acts as part of a bloody gang war that played out for at least eight years in a city considered to be a hotbed of music industry innovation. The authorities have said that a crosstown rivalry between YSL and a gang called YFN was exacerbated in 2015 with the murder of Donovan Thomas, a behind-the-scenes connector instrumental in several rap careers.In the aftermath of the killing, the authorities say, many in the city picked sides as retaliatory shootings spilled across Atlanta.It is a world far removed from White House meetings and voting software. But experts say the Trump case, with its own famous lead defendant and sprawling nature, could encounter some similar complications.In Mr. Trump’s indictment, prosecutors also outlined a “criminal organization,” made up of power players like Mark Meadows, the former White House chief of staff, and Rudolph W. Giuliani, Mr. Trump’s former personal lawyer, and obscure Trump supporters like Scott Hall, an Atlanta bail bondsman who was charged with helping to carry out a data breach at a rural Georgia elections office.The Trump team’s shared goal, according to the indictment, was “to unlawfully change the outcome” of Georgia’s 2020 presidential election in Mr. Trump’s favor.Ms. Willis, a veteran prosecutor, has said she appreciates the way that RICO indictments allow for the telling of big, broad, easily digestible stories. Both the YSL and Trump indictments paint pictures of multifaceted “organizations,” showing how the defendants are connected and what they are accused of, which are described across dozens of pages as “acts in furtherance of the conspiracy.”These acts include both discernible criminal activity — like murder and aggravated assault in the YSL case and “false statements and writings” and “conspiracy to defraud the state” in the Trump case. But they also include noncriminal “overt acts” meant to further the goal of the conspiracy.Ms. Willis’s office has proposed that the Trump trial begin in March.Amir Hamja/The New York TimesIn the YSL indictment, the “overt acts” include Mr. Williams’s performing rap songs with violent lyrics — a legal strategy that has set off a heated debate about free speech and whether hip-hop, a quintessentially Black art form, is the target of racist scapegoating. Last year, Mr. Williams’s defense team filed a motion seeking to exclude the lyrics from the case, but the judge has yet to rule on it.Chris Timmons, a trial lawyer and former Georgia prosecutor, said he expected a similar free speech fight to erupt, at least in court, over Mr. Trump’s Twitter posts. Mentions of tweets he posted in the months after the 2020 election pepper the 98-page indictment as it describes efforts in Washington to set up bogus pro-Trump electors in Georgia and other states, to cajole legislators in those states to accept them, and to pressure Mike Pence, then the vice president, to throw a wrench in the final Electoral College vote.Some of the tweets in the indictment might seem rather bland in a different context. “Georgia hearings now on @OANN. Amazing!” Mr. Trump tweeted on Dec. 3, 2020 — a month after Election Day — referring to a far-right TV network’s airing of a state legislative hearing in which his supporters made a number of untrue allegations about election fraud.In other instances, Mr. Trump tweeted outright lies about election fraud. “People in Georgia got caught cold bringing in massive numbers of ballots and putting them in ‘voting’ machines,” he posted in December 2020.Mr. Timmons said he expected Mr. Trump’s lawyers to try to throw out his Twitter posts, as well as a recording of a call that the former president made to Brad Raffensperger, Georgia’s secretary of state, on free speech grounds.“They’re going to try to suppress the recording of the phone call, and probably try to suppress any tweets that were sent, and any text messages, anything along those lines, as violative of the First Amendment of the United States Constitution,” he said.In another parallel with the YSL case, the Trump case is almost certain to see multiple pretrial motions from a bumper crop of defense lawyers. One defendant, Mr. Meadows, has already filed a motion to move the case to federal court.Both Mr. Trump and Jeffrey Clark, a former Justice Department official who is among the defendants, may also file for removal, which would broaden the jury pool beyond liberal Fulton County into more Trump-friendly areas.Harvey Silverglate, a lawyer representing John Eastman, a defendant in the Trump case charged with helping to plan the bogus elector scheme, said this week that he expected a number of defendants to try to sever their cases.“Bringing in that many defendants and that many counts is an unmanageable criminal case,” he said, referring to the fact that each defendant is charged with racketeering and at least one of 40 other criminal charges.Mr. Silverglate, who said his client was innocent, added, “This is a case that wouldn’t reach trial in two years.”Ms. Willis’s office has proposed that the Trump trial begin in March, but the chances of that happening seem vanishingly slim. Mr. Meadows’s removal effort alone is likely to trigger a federal appeal, a process that could take months to resolve.While dragging out a case can hurt the prosecution, as witnesses forget or even die, the mere prospect of a multiyear legal ordeal can help convince some defendants to take a plea, as probably happened in the YSL case.Mr. Timmons, who tried numerous RICO cases, said that prosecutors often hoped to secure pleas from the lower-level players and work up toward the defendant at the top of the list, who is often the most prominent or powerful among them.“Your goal is to roll that up like a carpet, working at the bottom and working your way to the top,” he said.The Trump case may prove different from the YSL case in that rappers’ careers might survive a guilty plea (unless they are deemed snitches), while lawyers convicted of felonies lose their licenses — and there are numerous lawyers on the Trump indictment. Those lawyers may choose to hang on and fight an epic legal battle with Ms. Willis, a formidable prosecutor who has been trying RICO cases for years.Mr. Trump is running for re-election while facing indictments in Florida, New York and Washington, D.C., as well as in Georgia. If he is concerned about how his legal troubles could affect his popularity, he might find hope in the fact that Mr. Williams released his latest album while in custody, and saw it debut at the top of a Billboard chart this summer. More

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      The Prosecution of Donald Trump May Have Terrible Consequences

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      It may be satisfying now to see Special Counsel Jack Smith indict former President Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom of speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster.But even if the prosecution succeeds in convicting Mr. Trump, before or after the election, the costs to the legal and political systems will be large.There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Mr. Trump if he is nominated.This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator, a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information, transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele Dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, where the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump. They are the circumstances that for very many will inform whether the prosecution of Mr. Trump is seen as politically biased. This is all before the Trump forces exaggerate and inflame the context and circumstances, and thus amplify their impact.These are some of the reasons the Justice Department, however pure its motivations, will likely emerge from this prosecution viewed as an irretrievably politicized institution by a large chunk of the country. The department has been on a downward spiral because of its serial mistakes in high-profile contexts, accompanied by sharp political attacks from Mr. Trump and others on the right. Its predicament will now likely grow much worse because the consequences of its election-fraud prosecution are so large, the taint of its past actions so great and the potential outcome for Mr. Biden too favorable.The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will likely inspire ever-more-aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposite party, to the detriment of sound government.It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth-shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. Going forward, these practices will likely be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.Many of these consequences of the prosecution may have occurred in any event because of our divided politics, Mr. Trump’s provocations, the dubious prosecution of him in New York State and Mr. Smith’s earlier indictment in the classified documents case. Yet the greatest danger comes from actions by the federal government headed by Mr. Trump’s political opponent.The documents case is far less controversial and far less related to high politics. In contrast to the election fraud case, it concerns actions by Mr. Trump after he left office, it presents no First Amendment issue and it involves statutes often applied to the mishandling of sensitive government documents.Mr. Smith had the option to delay indictment until after the election. In going forward now, he likely believed that the importance of protecting democratic institutions and vindicating the rule of law in the face of Mr. Trump’s brazen attacks on both outweighed any downsides. Or perhaps he believed the downsides were irrelevant — “Let justice be done, though the heavens fall.”These are entirely legitimate considerations. But whatever Mr. Smith’s calculation, his decision will be seen as a mistake if, as is quite possible, American democracy and the rule of law are on balance degraded as a result.Watergate deluded us into thinking that independent counsels of various stripes could vindicate the rule of law and bring national closure in response to abuses by senior officials in office. Every relevant experience since then — from the discredited independent counsel era (1978-99) through the controversial and unsatisfactory Mueller investigation — proves otherwise. And national dissensus is more corrosive today than in the 1990s, and worse even than when Mr. Mueller was at work.Regrettably, in February 2021, the Senate passed up a chance to convict Mr. Trump and bar him from future office, after the House of Representatives rightly impeached him for his election shenanigans. Had that occurred, Attorney General Merrick Garland may well have decided not to appoint a special counsel for this difficult case.But here we are. None of these considerations absolve Mr. Trump, who is ultimately responsible for this mammoth mess. The difficult question is whether redressing his shameful acts through criminal law is worth the enormous costs to the country. The bitter pill is that the nation must absorb these costs to figure out the answer to that question.Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, is a co-author of “After Trump: Reconstructing the Presidency.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      in Elections

      Trump Election Charges Set Up Clash of Lies Versus Free Speech

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      The indictment of former President Donald J. Trump over his efforts to retain power accuses him of conspiracies built on knowing falsehoods. His supporters say he is protected by the First Amendment.Running through the indictment charging former President Donald J. Trump with conspiring to overturn the 2020 election was a consistent theme: He is an inveterate and knowing liar.The indictment laid out how, in the two months after Election Day, Mr. Trump “spread lies” about widespread election fraud even though he “knew that they were false.”Mr. Trump “deliberately disregarded the truth” and relentlessly disseminated them anyway at a “prolific” pace, the indictment continued, “to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”Of course, Mr. Trump has never been known for fealty to truth.Throughout his careers in business and politics, he has sought to bend reality to his own needs, with lies ranging from relatively small ones, like claiming he was of Swedish and not German descent when trying to rent to Jewish tenants in New York City, to proclaiming that President Barack Obama was not born in the United States.If you repeat something enough, he has told confidants over time, people will believe it.By and large, this trait has served him well, helping him bluster and bluff his way through bankruptcies and then to the White House and through crises once he was there: personal scandals, two impeachments and a special counsel’s investigation when he was in office.But now he is being held to account in a way he never has been before for what a new special counsel, Jack Smith, is asserting was a campaign of falsehoods that undermined the foundations of democracy.Already, Mr. Trump’s lawyers and allies are setting out the early stages of a legal strategy to counter the accusations, saying that Mr. Trump’s First Amendment rights are under attack. They say Mr. Trump had every right to express views about election fraud that they say he believed, and still believes, to be true, and that the actions he took or proposed after the election were based on legal advice.Jack Smith, the special counsel, announced an indictment of former President Donald J. Trump in Washington on Tuesday.Doug Mills/The New York TimesThe indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.While a judge and jury will ultimately decide how much weight to give each, Mr. Trump and his allies were already on the offensive after the indictment.“So the First Amendment protects President Trump in this way: After 2020, he saw all these irregularities, he got affidavits from around the country, sworn testimony, he saw the rules being changed in the middle of the election process — as a president, he’s entitled to speak on those issues,” Mr. Trump’s defense lawyer in the case, John Lauro, said on Wednesday in an interview on CBS.”What the government would have to prove in this case, beyond a reasonable doubt, is that speech is not protected by the First Amendment, and they’ll never be able to do that,” he said.Representative Elise Stefanik of New York, the No. 3 Republican in the House, said in a statement that Mr. Trump had “every right under the First Amendment to correctly raise concerns about election integrity in 2020.”Representative Gary Palmer of Alabama, the chairman of the Republican Policy Committee, called the indictment a “criminalization of disinformation and misinformation, which raises serious concerns about the public’s right to speak openly in opposition to policies they oppose.”Legal experts were skeptical about the strength of those claims as a defense. They pointed out that the indictment said on its second page that all Americans had the right to say what they wanted about the election — even if it was false. But, the indictment asserts, it is illegal to use those false claims to engage in criminal conduct, the experts said.An individual’s free-speech rights essentially end as soon as those words become evidence of criminality, they said. In the case of the indictment against Mr. Trump, the prosecutors argue that Mr. Trump used his statements to persuade others to engage in criminal conduct with him, like signing fake slates of electors or pressuring Vice President Mike Pence to block or delay Electoral College certification of President Biden’s victory.According to the indictment, Mr. Trump “knowingly” used “false claims of election fraud” to try to “convince the vice president to accept the defendant’s fraudulent electors, reject legitimate electoral votes or send legitimate electoral votes to state legislatures for review rather than counting them.”The indictment goes on to say that when those efforts failed, Mr. Trump turned to using the crowd at the rally on the Ellipse “to pressure the vice president to fraudulently alter the election results.”Samuel W. Buell, a professor of law at Duke University and a lead federal prosecutor in the Justice Department’s prosecution of Enron, said that it “won’t work legally but it will have some appeal politically, which is why he is pushing it.”“There is no First Amendment privilege to commit crimes just because you did it by speaking,” Mr. Buell said.Referring to both public and private remarks, Mr. Buell said that “there is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts.”Referring to the fictional television mafia boss Tony Soprano, Mr. Buell added, “Tony Soprano can’t invoke the First Amendment for telling his crew he wants someone whacked.”For decades, Mr. Trump’s penchant for falsehoods and exaggerations was well known in New York City. He was so distrusted by Mayor Ed Koch in the 1980s that one of the mayor’s deputies, Alair Townsend, famously quipped, “I wouldn’t believe Donald Trump if his tongue were notarized.”Mr. Trump spoke with journalists by phone while pretending to be a spokesman representing himself, in order to leak information about his business or his personal life. He claimed to have dated women who denied being involved with him. He claimed that he lived on the 66th through 68th floors of Trump Tower, which in fact has only 58 floors.Reaching the presidency did not lead to a change in his habits. The Washington Post’s fact checker identified more than 30,000 false or misleading claims from him over his four years in office, a figure equivalent to 21 a day.Mr. Trump has already tried to invoke the First Amendment in civil cases related to the attacks on the Capitol on Jan. 6, 2021. In February 2022, a federal judge in Washington ruled that lawsuits related to whether he incited the crowd that stormed the Capitol could proceed, in part because the First Amendment did not protect the speech he gave on the Ellipse before the riot.“Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a president’s speech,” Judge Amit P. Mehta of the Federal District Court in Washington ruled. “But the court believes this is that case. Even presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the president from liability.”The experts and defense lawyers who read the indictment against Mr. Trump said that claiming that he was relying on the advice of lawyers was likely to provide Mr. Trump with a stronger defense than if he invoked the First Amendment.In the interview on CBS, Mr. Lauro leaned into that argument, saying that Mr. Trump had a “smoking gun of innocence” in a memo that the conservative legal scholar John Eastman wrote for him. The memo said Mr. Trump could ask Mr. Pence to pause the congressional certification of the election. Mr. Eastman was not a White House lawyer at the time.“John Eastman, who is an eminent scholar, gave the president an option — several options,” Mr. Lauro said.Alan Feuer More