A number of legal experts say former President Donald Trump stands a good chance of having the U.S. Supreme Court intervene in his federal case for alleged election interference to his benefit.
The Epoch Times reported on Friday that “his best case is that the charges encroach on his First Amendment rights, but he might also successfully assert presidential immunity or argue the law was impermissibly stretched by prosecutors,” experts told the outlet.
Special counsel Jack Smith charged Trump on Aug. 1 with obstructing electoral vote counting by Congress on Jan. 6 and conspiring to do so in order to stay in power, allegations that largely rest on a legal finding that Trump’s speech on Jan. 6, 2021, before the riot was tantamount to “incitement.”
The alleged conspiracy involved spreading false claims that fraud and illegalities influenced the election outcome. These false claims were purportedly utilized in efforts to persuade various officials to overturn the election results.
Trump’s legal team has filed numerous motions seeking to have the charges dismissed based on constitutional grounds, statutory grounds, presidential immunity, and for malicious prosecution. While some of these claims are considered weak at best, experts suggest that others may have persuasive merit.
Much of Trump’s argument rests on his legal team’s assertion that his speech was protected under the First Amendment and that he never intended to direct anyone to try and disrupt the process of counting electoral votes in favor of then-President-elect Joe Biden.
“The prosecution seeks to install itself as America’s censor, with roving authority to criminally prosecute all who speak out against its approved narratives,” his lawyers wrote in a Nov. 22 brief. “The prosecution has no such mandate. Accordingly, the indictment is unconstitutional on its face and must be dismissed.”
Rob Natelson, one of America’s preeminent constitutional scholars who’s written extensively on the original meaning of the Constitution and the First Amendment in particular, agrees with the Trump team’s argument that if the claim that Trump’s speech amounted to a conspiracy to obstruct a government proceeding, then federal prosecutors could also go after anyone who advocated against government-mandated COVID-19 lockdowns and mask mandates, among other actions.
“Lying is protected by the First Amendment, except in a few cases such as fraud, lying to law enforcement, and defamation,” Natelson said.
“It has to be so: Otherwise, as Trump’s lawyers claim, every statement would be open to investigation into the speaker’s motives. The effect would be, as the Supreme Court says [in previous cases], a severe ‘chilling effect’ on speech,” he added.
