Georgetown University constitutional law professor Jonathan Turley warned in a column this week that if former President Donald Trump is convicted of charges filed against him by special counsel Jack Smith, it will have permanent and damaging effects on a key right.
Trump faced another federal indictment on four charges connected to Smith’s investigation into 2020 election interference and the Jan. 6 Capitol riot. The charges include conspiracy to defraud the United States. On Thursday, Trump pleaded not guilty to all charges during a court appearance in Washington, D.C., Fox News reported.
In a published op-ed for The Hill, Turley argued that Smith’s indictment effectively accuses Trump of disseminating “lies that there had been outcome-determinative fraud in the election,” a concerning notion for First Amendment rights.
“In order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected,” he wrote.
Turley noted that Smith’s charges rest on the allegation that Trump knew his claims about actually winning the 2020 election were false but made them anyway. He noted further that if Trump does believe he won, “the indictment collapses.”
The indictment aims to demonstrate that Trump was aware of his legitimate election loss by noting that numerous individuals advised him of the fact. But Turley countered that Trump actively sought out those who claimed he won, adding that kind of action and behavior is within his rights.
“Trump is allowed to seek out enablers who tell him what he wants to hear,” Turley wrote. “All presidents do this. (Joe Biden, for example, ignored virtually unanimous legal opinion and relied upon a single law professor’s say-so to justify an obviously unconstitutional executive action that later had to be reversed.)”
Additionally, Turley cautioned that if Trump were to be charged and convicted in this manner, it could establish a “dangerous” precedent, granting the government the authority to decide what constitutes truth and falsehood.
“There is no limiting principle to this indictment,” Turley wrote. “The government would choose between which politicians are lying and which are lying without cause.”
Turley also noted that he believes there is a “constitutional problem” with trying to “criminalize lies” in the way Smith is attempting. He referenced a 2012 Supreme Court case, United States v. Alvarez, where the high court found that it is unconstitutional to criminalize lies. He said the court also recognized that the opposition decision would give the federal government “broad censorial power unprecedented in this court’s cases or in our constitutional tradition.”
“So, even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements,” Turley wrote.
