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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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      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

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      In Belarus, the Protests Were Three Years Ago. The Crackdown Is Never-Ending.

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      The recent high school graduate selected her wardrobe carefully as she headed off to a summer folk festival.She dressed all in white, as is customary for the event, and wore a large flower wreath in her golden hair. But when it came to choosing a sash for her skirt, she grabbed a brown leather band, avoiding the color red.In Belarus, red and white are the colors of the protest movement against the country’s authoritarian leader, Aleksandr G. Lukashenko. And even the smallest sign of protest can land a person in jail. “I worry about attracting the wrong kind of attention from the authorities,” said the young woman, who spoke on the condition that her name not be used so she would not draw scrutiny.After claiming victory in a widely disputed presidential election three years ago — and violently crushing the outraged protests that followed — Mr. Lukashenko has ushered in a chilling era of repression.He is moving ever closer to his patron, President Vladimir V. Putin of Russia, positioning himself as an invaluable military ally to Russia in its war against Ukraine, but also cracking down on dissent in a way that is invisible to much of the world but rivals that of Mr. Putin’s punitive regime.Children in the Minsk region playing near the “Mound of Glory,” a memorial to those who fought in World War II.An exhibit at the Belarusian State Museum of the history of the Great Patriotic War.Belarusian security forces are rounding up opposition figures, journalists, lawyers and even people committing offenses like commenting on social media memes or insulting Mr. Lukashenko in private conversations with acquaintances that are overheard and reported.In particular, activists and rights groups say, the country’s security forces are intent on finding and punishing the people who participated in the 2020 protests. Belarusians are getting arrested for wearing red and white, sporting a tattoo of a raised fist — also a symbol of the protest movement — or for just being seen in three-year-old photographs of the anti-government demonstrations.“In the last three years, we went from a soft autocracy to neo-totalitarianism,” said Igor Ilyash, a journalist who opposes Mr. Lukashenko’s rule. “They are criminalizing the past.”Belarusians interviewed by The New York Times over three days this month echoed that sentiment, expressing fear that even a slight perceived infraction related to the revolution could bring prison time.The crackdown has made people much more cautious about overtly showing their anger at the government, said Mr. Ilyash. That, in turn, has prompted the authorities to focus on participation in old protests in an attempt to intimidate and stifle dissent.Scrutiny of Mr. Lukashenko’s repressive reign has increased since Russia’s invasion of Ukraine last year, and in particular in recent months.Belarus let the Kremlin invade Ukraine from its territory last year. In March, Russia announced it would station tactical nuclear weapons on Belarusian territory. Video evidence suggests Belarus is now housing forces from Russia’s Wagner paramilitary group, and on Thursday, the government said Wagner forces were training special Belarusian operations units only a few miles from the border with Poland.The security crackdown has thinned the ranks of lawyers: More than 500 have been stripped of their law licenses or left the profession or the country.And Belarus has become particularly perilous for journalists. There are now 36 in jail, according to the Belarusian Association of Journalists, after the arrest on Monday of Ihar Karnei, 55. He has written for the U.S.-funded Radio Free Europe/Radio Liberty, which Belarus has banned as an “extremist” organization. People can be sentenced to up to seven years in prison for just sharing its content.“In the last three years, we went from a soft autocracy to neo-totalitarianism,” said Igor Ilyash, a journalist whose wife, also a journalist, is imprisoned.Mr. Ilyash does not leave his apartment without a small backpack holding essentials that he would need in case he were detained and imprisoned.According to Viasna, a human rights group that shared the Nobel Peace Prize last year, security forces raided Mr. Karnei’s home and seized his electronic devices. He is in Belarus’s notorious Okrestina detention center, the group said, and neither his family nor his lawyers have had access to him.Belarus has criminalized most independent news outlets and the journalists’ association as “extremist,” which makes following them on social media a crime.Mr. Ilyash’s wife, the award-winning journalist Katsiaryna Andreyeva, was sentenced to eight years in prison in two separate cases and now labors in a penal colony as a seamstress, earning less than $4 a month, her husband said.In the prison, she is forced to wear a yellow badge on her chest identifying her as a political prisoner. When she is released in 2028, if the same government is still in power, she will still be considered an “extremist” and barred from certain activities, including journalism.Mr. Ilyash himself spent 25 days in prison, and with one criminal case against him still open, he is barred from leaving the country. He does not leave his apartment without a small backpack that contains the essentials for prison, in case he is detained: a toothbrush, toothpaste, spare underwear and socks.Activists and opposition figures are also being targeted. This month, the artist Ales Pushkin died in a penal colony at age 57. He is believed to be the third political prisoner to die in Belarusian custody since the protests began in 2020.Several of the country’s best-known political prisoners, like the leading opposition figure Maria Kolesnikova, have neither been seen by their family members or lawyers, nor permitted to write letters, meaning they have been out of touch for months.Viasna, the rights group, has identified almost 1,500 political prisoners in Belarus today, and a further 1,900 people convicted in what the group calls “politically motivated criminal trials.”“Arrests for what happened in 2020 are occurring practically every week, almost every day,” said Evgeniia Babayeva of Viasna, a human rights group that shared the Nobel Peace Prize last year.The Okrestina detention center in Minsk. Former inmates who spent time there described beatings and horrific conditions. “The security services are still watching people’s videos, and scouring social media and photos of the protests all these years later,” said Evgeniia Babayeva, a Viasna staff member who catalogs politically motivated detentions in Belarus from exile in Lithuania.Ms. Babayeva was arrested in July 2021, on the same day as the group’s founder, Ales Bialiatski, along with a handful of other colleagues. She was released only because she signed an agreement to collaborate with the security services, but she said she fled Belarus the same day.In March, Mr. Bialiatski was sentenced to 10 years in prison for “cash smuggling” and “financing actions and groups that grossly violated public order,” charges widely viewed by watchdog groups as spurious and intended to discredit the organization.On the surface, visitors to the country’s capital would have to look closely to see any signs that the protests in 2020 happened at all. Minsk, which takes pride in its cleanliness, is tidy, with a modern city center. Billboards trumpet 2023 as the “year of peace and creation,” and the roadside public gardens are manicured in national Belarusian motifs.But residents say a more ominous sensibility hangs over the city and the country. Cameras with facial recognition ability watch over public spaces and residential elevators, keeping tabs on ordinary Belarusians carrying out day-to-day activities.One evening in June, a Minsk resident was out for a walk when she was approached by the police, who reprimanded her for a simple administrative violation, less serious than jaywalking.A Belarusian military billboard in Minsk. Belarus and Russia have grown closer over the past few years, especially when it comes to the military.A Minsk resident who was jailed for a simple administrative violation while she was out walking.The officer searched her name in the police database, turning up evidence of previous detention for participation in the 2020 protests. Police officers soon drew up an accusation that she had cursed in their station — which she denies — and she was put into the Okrestina detention center for 10 days on a “hooliganism” charge.She shared a small cell with 12 other women, she said. There were no mattresses or pillows, and the light was on 24 hours a day. Though everyone became sick — she contracted a bad case of Covid — they had to share toothbrushes. There were no showers, and if a woman got her period, she was given cotton balls rather than pads or tampons.(The woman’s name and her offense are being withheld at her request because the information could identify her and draw retribution. Her identity was confirmed by The Times, and friends confirmed that she had given similar accounts to them.)The repressive environment is stifling people and prompting many to leave. The high school graduate who went to the celebration of the summer solstice and the Belarusian poet Yanka Kupala said she had attended because of a dearth of public events since 2020.“There is nowhere for us to go anymore,” she said, complaining that control was so tight that even traditional songs had been approved in advance by the authorities. She said most good musicians have been named “extremists” and left the country.Floral headwear was a popular choice for festival attendees.The festival in the Minsk region celebrated Kupalle, which is tied to the summer solstice.The girl said she planned to follow them, hoping to continue her studies in Cyprus or Austria. At least half of her classmates had already left Belarus.Another festivalgoer, Vadim, 37, said he had the impression that at least half of his friends had spent time in prison because of their political views.He said his wife had already emigrated, and he was contemplating joining her.“The war was a trigger for many people to leave,” he said.“Before, we thought this situation would eventually end,” Vadim said, “but once the war started, we knew it would only get worse.”A tour group near the Lenin Monument in Minsk. More

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      Robert F. Kennedy Jr. Insists He Is Not Antisemitic During House Hearing

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      At a hearing convened by House Republicans, the Democratic presidential candidate defended himself against charges of racism and antisemitism.Robert F. Kennedy Jr. appeared before the House Select Subcommittee on the Weaponization of the Federal Government.Kenny Holston/The New York TimesThe Democratic presidential candidate Robert F. Kennedy Jr. came to Capitol Hill on Thursday and pointedly declared that he is neither an antisemite nor a racist, while giving a fiery defense of free speech and accusing the Biden administration and his political opponents of trying to silence him.Mr. Kennedy, an environmental lawyer who turned to anti-vaccine activism and has trafficked in conspiracy theories, was referring to the storm that erupted after The New York Post published a video in which he told a private audience that Covid-19 “attacks certain races disproportionately” and may have been “ethnically targeted” to do more harm to white and Black people than to Ashkenazi Jews and Chinese people.Mr. Kennedy appeared before the House Select Subcommittee on the Weaponization of the Federal Government — a panel created by Republicans to conduct a wide-ranging investigation of federal law enforcement and national security agencies. He said he had “never been anti-vax” and had taken all recommended vaccines except the coronavirus vaccine.Thursday’s hearing was devoted to allegations by Mr. Kennedy and Republicans that the Biden administration is trying to censor people with differing views. It was rooted in a lawsuit, filed last year by the attorneys general of Missouri and Louisiana and known as Missouri v. Biden, that accused the administration of colluding with social media companies to suppress free speech on Covid-19, elections and other matters.The subcommittee’s chairman, Representative Jim Jordan, Republican of Ohio and an acolyte of former President Donald J. Trump, opened the hearing by citing an email that emerged in that case, in which a White House official asked Twitter to take down a tweet in which Mr. Kennedy suggested — without evidence — that the baseball legend Hank Aaron may have died from the coronavirus vaccine.The tweet, which was not taken down, said Mr. Aaron’s death was “part of a wave of suspicious deaths among elderly” following vaccination. There was no such wave of suspicious deaths. As Mr. Kennedy often does, he phrased his language carefully; he did not explicitly link the vaccine to the deaths, but rather said the deaths occurred “closely following administration of #COVID #vaccines.”Representative Jim Jordan opened the hearing by citing an email in which a White House official asked Twitter to take down a tweet by Mr. Kennedy.Kenny Holston/The New York TimesThursday’s session had all the makings of a Washington spectacle. A long line had formed outside the hearing room in the Rayburn House Office Building by the time Mr. Kennedy arrived. Kennedy supporters stood outside the building holding a Kennedy 2024 banner.Despite the theater, the hearing raised thorny questions about free speech in a democratic society: Is misinformation protected by the First Amendment? When is it appropriate for the federal government to seek to tamp down the spread of falsehoods?Democrats accused Republicans of giving Mr. Kennedy a forum for bigotry and pseudoscience. “Free speech is not an absolute,” said Delegate Stacey Plaskett of the Virgin Islands, the top Democrat on the subcommittee. “The Supreme Court has stated that. And others’ free speech that is allowed — hateful, abusive rhetoric — does not need to be promoted in the halls of the People’s House.”Even by Mr. Kennedy’s standards for stoking controversy, his recent comments about Covid-19 were shocking. Representative Debbie Wasserman Schultz, Democrat of Florida, who is Jewish, tried unsuccessfully on Thursday to force the panel into executive session; she insisted that Mr. Kennedy had violated House rules by making “despicable antisemitic and anti-Asian comments.” She also helped organize Democrats to sign a letter calling on Republican leaders to disinvite him from the hearing.Mr. Kennedy waved the letter about during his opening remarks. “I know many of the people who wrote this letter,” he said. “I don’t believe there’s a single person who signed this letter who believes I’m antisemitic.”Mr. Kennedy has been steeped in Democratic politics for his entire life, but his campaign has drawn supporters from the fringes of both political parties. He has made common cause with Republicans and Trump supporters who accuse the federal government of conspiring with social media companies to suppress conservative content.Thursday’s hearing was billed as a session to “examine the federal government’s role in censoring Americans, the Missouri v. Biden case and Big Tech’s collusion with out-of-control government agencies to silence speech.” One of the lawyers involved in that case, D. John Sauer, also testified, as did Emma-Jo Morris, a journalist at Breitbart News, and Maya Wiley, the president and chief executive of the Leadership Conference on Civil and Human Rights.Mr. Kennedy showed a flash of the old Kennedy style, invoking his uncle, Senator Edward M. Kennedy of Massachusetts, a Democrat and legislative giant who frequently worked across the aisle. He called for kindness and respect, recalling how his uncle brought Senator Orrin G. Hatch, the Utah Republican with whom he partnered on major legislation, to the Kennedy compound in Hyannis Port, Mass.And Mr. Kennedy was joined by a former member of Congress: Dennis J. Kucinich, who served in the House as a Democrat from Ohio and is Mr. Kennedy’s campaign manager.“We need to elevate the Constitution of the United States, which was written for hard times,” Mr. Kennedy declared at one point, “and that has to be the premier compass for all of our activities.”Amid the vitriol, members of both parties did come together around a lament from Representative Gerald E. Connolly, Democrat of Virginia.“I’ve been in this Congress 15 years, and I never thought we’d descend to this level of Orwellian dystopia,” Mr. Connolly said.Representatives Chip Roy, Republican of Texas, and Harriet M. Hageman, Republican of Wyoming, nodded their heads and smiled. “I agree with that,” they said in unison. More

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      Supreme Court to Hear Dispute Over ‘Trump Too Small’ Slogan

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      In earlier cases, the justices struck down provisions of the trademark law that discriminated based on the speaker’s viewpoint.The Supreme Court agreed on Monday to decide whether a California lawyer may trademark the phrase “Trump too small,” a reference to a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding: “And you know what they say about guys with small hands.”The lawyer, Steve Elster, said in his trademark application that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”A federal law forbids the registration of trademarks “identifying a particular living individual except by his written consent.” Citing that law, the Patent and Trademark Office rejected the application.A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the office to allow the registration.“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” Judge Timothy B. Dyk wrote for the court. “As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”The size of Mr. Trump’s hands has long been the subject of commentary. In the 1980s, the satirical magazine Spy tormented Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.“Look at those hands, are they small hands?” Mr. Trump said, displaying them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court. Solicitor General Elizabeth B. Prelogar said Mr. Elster was free to discuss Mr. Trump’s physique and policies but was not entitled to a trademark.The Supreme Court has twice struck down provisions of the trademark law in recent years on First Amendment grounds.In 2019, it rejected a provision barring the registration of “immoral” or “scandalous” trademarks.That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”A bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.In 2017, a unanimous eight-justice court struck down another provision of the trademarks law, this one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”The decision, Matal v. Tam, concerned an Asian American dance-rock band called The Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.The new case, Vidal v. Elster, No. 22-704, is arguably different, as the provision at issue does not appear to make such distinction. In his Supreme Court brief, Mr. Elster responded that “the statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the president of the United States.” More

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      Burhan Sönmez on the Tensions Between Politics and Art in Turkey

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      Burhan Sönmez, who is president of PEN international, discusses the tension between politics and art and the role of literature in authoritarian societies.The momentous Turkish presidential election, whose second round will take place on Sunday, has more than just geopolitical consequences; it is a watershed for culture as well. Since 2016, after a failed coup against President Recep Tayyip Erdogan, the government here has cracked down on artists, writers, filmmakers and academics, who have experienced censorship, job losses and a climate of fear.For the novelist Burhan Sönmez, who is part of the country’s ethnic Kurdish minority, the upheavals of the Erdogan years are only the latest chapter in an ongoing struggle between Turkish power and Turkish art.Born outside Ankara in 1965, where his first language was Kurdish, he worked as a human rights lawyer but went into exile in Britain after a police assault. He has written five novels, including the prizewinning “Istanbul Istanbul,” “Labyrinth” and “Stone and Shadow,” newly out in English by Other Press. His novels delve into imprisonment and memory, with echoes of Fyodor Dostoyevsky and Jorge Luis Borges.
      Sönmez now lives in Istanbul and Cambridge, and in 2021 he was named president of PEN International, where he has been an outspoken defender of freedom of expression in Turkey and elsewhere.I spoke to Sönmez over video a few days after the first round of the Turkish general election, in which Erdogan finished a half-point shy of an absolute majority. This interview has been edited and condensed.Istanbul has always been a city of arrivals. When did you first come here?During the military-coup era, the 1980s. I was born and grew up in a small village in central Turkey. It’s in the middle of the countryside, like a desert village, without electricity. I moved to Istanbul to study law, and the next phase of my life began after I went to exile in Britain. So now I can combine those different spaces — small village, big Istanbul and then Europe. They all come together and sometimes they separate.Frequently, there’s an indeterminacy of setting in your novels, not only of geography but of time. You rarely use the obvious tells of technology or current affairs that some authors use to ground a reader in time.Particularly in my novel “Istanbul, Istanbul,” I didn’t state a specific year, or period, when the events take place. When people read it, everyone feels that this is the story of their generation.For better and for worse!Yes. But, you know, only a naïve writer would feel proud of that. You would say, “OK, I am reflecting the feelings of different generations in a single novel.” In fact, it comes from the society itself in Turkey. Every generation has gone through the same suffering, the same problems, same oppression, same pain. So it is not a literary talent, actually, to bring all those times into a single story.In “Istanbul, Istanbul,” the narrators are prisoners, held without charge in underground cells, who tell one another stories. What their stories sketch in aggregate is a kind of dream-state Istanbul, where freedom is always abbreviated but with which freethinkers and artists remain hopelessly in love.This really started in the 1850s, when the first liberal intellectuals were oppressed by the Ottoman sultan and went into European exile. When we look at this history over time, 150 or 170 years, we see that, with every decade, governments used the same methods of oppression against writers, journalists, academics, intellectuals.But the tradition of oppression also created a tradition of resistance. And now look: After 20 years of the rule of Erdogan, still nearly half of society is against him strongly. We haven’t finished. This is partly our history of resistance.Turkey, like America, has a strong political fault line between the cities and the countryside. But your novels have crisscrossed from Istanbul to rural Anatolia and back.Especially in my last novel, “Stone and Shadow,” I wrote about this, comparing the eastern, middle and also the western part of Turkey over the last 100 years.What’s the difference between life in a small village in rural Turkey and in Istanbul? You could say it’s the difference between living in a small hut with a gas lamp and living on a street with flashing neon lights. Two different worlds, two different eras.But you should understand: Istanbul is now also part of rural Turkey. There has been a huge migration from the countryside. When I went to study in Istanbul, the population was about five million. Now it’s 17 million. It’s not easy for a big city to create a new citizen, a new cultural spirit.On that subject, one of the most disturbing themes of this election has been the demonization around refugees. I wonder how it sounds to you, as a former refugee yourself.The sad thing for Turkey now, we’ve seen a new rise of nationalism — in the color of racism, actually — against immigrants. There’s open racism against Syrians and Afghan people in Turkey. And every side, every political platform, has different ways of legitimizing this.Right-wingers say, “These people are underdeveloped Arabs. This is a backward race.” From secular progressive people, you hear, “Oh, they’re right-wing Islamist militants. They are here to support Erdogan, and to invade our country, to turn it into an Islamic republic.” In every case, racism or hatred of immigrants is on the top of the agenda.Nationalism now dominates almost every political movement.Yet there’s a rare lightness and freedom to your characterization of these political themes. “Labyrinth,” the story of a musician who loses his memory after jumping into the Bosporus, barely hints at the upheavals of the Erdogan years, when the amnesiac sees a torn poster of the president and confuses him for a sultan.We know the difference between art and journalism. Journalism speaks directly. Speaking this different language of art, we feel that we are no longer in the field of society, of politics. A political matter or a historical fact is just a color in my novel. That is real power. When I write a novel, I feel that I unite the past and the future. Because the past is a story and the future is a dream.Has there been a self-censorship of artists and writers in Turkey over the last few years?Well, first, every year more than 500 new Turkish novels are being published. When I was at the university, the number of new novels published in Turkish was about 15 or 20. That’s an enormous difference.With the young generation, I see that they are brave. Despite all this oppression, this danger of going to prison or being unemployed, young people are writing fearlessly. They are writing about Kurdish issues, about women’s issues, about L.G.B.T. issues, about political crimes in Turkey.Hundreds of writers are like this: writing openly, and at some point a bit dangerously, for themselves. This is something of which we should be proud.As president of PEN International, you have a particularly close view of the state of free expression. Have things gotten any better in Turkey since the crackdowns of 2016-2017, when thousands of academics and journalists were arrested or purged?No, no, it’s not better. In Turkey, we never got to distinguish between bad and good. It was always: bad or worse.In Turkey, PEN International has been supporting writers in prison. For myself, being a lawyer, I have the opportunity to go to prisons. Anytime I go to Turkey, I use this advantage. I go and I see Selahattin Demirtas, or Osman Kavala, so many people. It is sad to see great people are still in prison.But also it is great to see that we have solidarity. At the end of my novel “Istanbul, Istanbul,” I used an epigraph by a Persian Sufi from the Middle Ages. He says, “Hell is not the place where we suffer, it’s the place where no one hears us suffering.” I know that if I am arrested, I will never be left alone.I probably shouldn’t ask you what you expect when Turks vote in the presidential runoff next Sunday. …No, you should ask. I think we’ll win. I’m too optimistic in life, and very naïve. More