FIRE: Trump jury’s burden of proof

FIRE statement on Trump indictments

President Trump approaches the Mic from the White House Balcony during a welcoming ceremony for the Washington Nationals Baseball team on the South Lawn.

As an unapologetic, nonpartisan defender of the right to free expression, FIRE vigorously opposes expanded application of criminal statutes to increase potential liability for speech protected by the First Amendment. While fraud and speech integral to criminal conduct do not enjoy First Amendment protection — the government may, for example, criminalize lying on an insurance claim, or passing a note to a bank teller to commit bank robbery — these exceptions must remain narrow and well-defined in our laws and jurisprudence. 

The federal indictment of former President Trump on charges related to his actions between the 2020 presidential election and President Biden’s inauguration implicates these First Amendment exceptions and the need for their narrow application. The Department of Justice correctly acknowledges that former President Trump had “every right” under the First Amendment to “speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” 

But the indictment argues former President Trump did far more than that. It claims he violated federal law by using “knowingly false claims of election fraud” to try to “get state legislators and election officials to subvert the legitimate election results” and “convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them.”

These actions, DOJ alleges, defrauded the United States and violated 18 U.S. Code § 1512, which prohibits “corruptly . . . obstruct[ing] . . . or imped[ing] any official proceeding, or attempt[ing] to do so.”

In the United States, no one is above the law and everyone is innocent until proven guilty. It will be up to a jury, in its role as factfinder, to decide whether former President Trump violated federal law. To convict, a jury must hold DOJ to its burden of proving beyond a reasonable doubt that former President Trump (1) knew his election fraud claims were false but repeated them anyway — “corruptly” — in an attempt to (2) have others ignore their legal duties in order to (3) prevent certification of the electoral vote. The First Amendment’s bar against criminalizing protected speech demands nothing less.

Since its founding more than two decades ago as the Foundation for Individual Rights in Education, FIRE has become the nation’s leading defender of fundamental rights on college campuses through our unique mix of programming, including student and faculty outreach, public education campaigns, individual case advocacy, and policy reform efforts. In 2022, FIRE changed its name to the Foundation for Individual Rights and Expression and announced an expansion initiative into off-campus free speech advocacy and legal defense.

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9 replies »

  1. SCOTUS Justice Anthony Kennedy: “The remedy for speech that is false is speech that is true,” Kennedy wrote for the court’s majority. “This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth…. Kennedy cited a 1927 case, Whitney v. California, to back him up and reprised a Justice Brandeis line from that opinion. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

    In my humble opinion, ‘The Big Lie’ is actually the Democrat’s assertion that the recent elections were fair and accurate. None the less, the Democrats have just as much right to lie about it as do the Republicans. They may all be liars. Time will tell.

    But what the Jack Smith indictments will give us, however (if the case isn’t thrown out of court), is the opportunity to reconsider the 2020 election through legal discovery. Is there evidence that the elections were fraudulent? Did the FBI and the DOJ put their weight on the scale by having the media censor free speech leading up to the 2020 election?

    Don’t get lost in the weeds of the current Joe/Hunter Biden corruption scandal just yet. Be patient. Avoid the distraction. Let this Jack Smith prosecutorial malfeasance go forward… because it will surely end up biting him, the rest of the Biden administration, and the never-Trump RHINOs, in the derriere.

  2. The prosecutor has played right into Trump’s hands. All he has to do is put the Pillow guy and Sid (the female lawyer) on the stand with their copious evidence that the election was stolen – evidence that has already been proven many times in court – and the case gets laughed out of court.

    Then, just for an added twist, Giuliani with his again proven evidence of Georgia shenanigans and the Pennsylvania guys who again have court-proven facts that more people voted in PA than were registered.

    A brilliant move by the most intellectual president ever.

    • It took me a bit to realize this is sarcasm. It’s sad the oatmeal brains actually believe this.

  3. Reality check: in sixty or so instances in which Trump or sympathizer’s filed court cases, substantially all were dismissed. Trump own hand-picked attorney general had told Trump that there was no evidence of outcome altering fraud.

    His own campaign manager told him the same thing.

    I suggest that when some sixty judges, one’s own attorney general, campaign manager and Republican governors and election officials, tell you that you lost the election, one might conclude “ he knew or should have known” that he lost.

    At that point do we not hold the President to the same standard of logic to which we hold our own children?

    Let’s get real!

    • So, when Hillary, Kamala, or Stacey Abrams, etc. crowed election fraud when a Democrat lost a major race, were they right or wrong? Winning at any cost is the goal and it has nothing to do with fairness. Rank choice voting robs voters of their votes, but it stands in places like Maine. Mail in ballots are a farce and should never, ever be allowed for all voters – only for those who cannot vote in person. Only a phantom hyperbole virus could make that happen. Identification verificication is required to board a plane, but not to register or vote? The good thing to come out of this federal prosecution case, the power to subpoena witnesses who have to answer, as well as discovery and evidence that will enter into the PUBLIC record facts that were surpressed for years. One thing is clear, gaslighting and corruption works on a populace too lazy and too hoodwinkned to think beyond the glare of spotlights and carefully worded scripts and headlines.

    • 1. You are right all the court casses were dismissed, never went ti trial. Which means the evidence was never heard by a jury.

      2. Wisconsin and Pennsylvania both changed their election laws during the election in violation of the U.S. Constitution as only the state(s) legislature can change the election laws of that state.

      Unconstitutional means illegal.

  4. James, not every case merits a trial. It merits a judge to read the complaint and to determine whether there is reason for pursuing further hearings.

    As for executive action in PA and WISC: one ought to recall that the President himself had declared a state of emergency that year as a public health measure.

    The alternatives would have been to deny those states the right yo vote in a presidential election, or to simply delay the election, or to run an election in which many voters would not have voted due to their health concerns.

    All the alternatives would have were problematic. Candidates could have raised questions of the legitimacy of the election.

    Officials in those states made their decisions. All candidates were treated the same within a state.

  5. I think those paying attention and think logically are aware of the democrats two tiered system pf injustice. That is shameful and un American, just as the post JFK democrats like it.

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