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?
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.
Persons:
Smith, Mike Pence, Joe Biden, Trump, Alvarez, doesn’t, Smith’s, Trump’s, reams, Pence, Biden, Rudy Giuliani, Sidney Powell, Jeffrey Clark, John Eastman
Organizations:
Justice Department, Justice
Locations:
United States