Fox News contributor and constitutional law professor Jonathan Turley published an opinion editorial on The Hill on Saturday.
The legal scholar argues that the current indictments against former president Donald Trump threaten to undermine the First Amendment.
Turley questions the underlying premise of the indictment, that allegedly false remarks about the election by Trump were not protected because he supposedly knowingly made fraudulent statements to challenge the election results.
“The government acknowledges that the Constitution protects false statements made in campaigns, but it insists that Trump must have known that his statements were false and therefore was engaged in fraudulent statements to obstruct or challenge electoral results,” Turley wrote.
“As a threshold matter, one problem is immediately evident. If Trump actually did (or does) believe that he did not lose the election, the indictment collapses. And so in an effort to demonstrate his knowledge, the indictment details how many people told Trump that he was wrong about the election and wrong about the law. I was one of those voices. Trump did not listen to me, most legal analysts or even his White House counsel. Instead, he listened to a small group of lawyers who assured him that a challenge might succeed and that there was evidence of massive election fraud.”
Turley concludes that Trump’s decision to affiliate with people who agreed with him about the stolen election is not grounds for indictment, adding that the habit of politicians seeking yes-men is far from unique to Trump.
“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.)”
Turley claims that the entire case against Trump could “collapse” if it could be proven that Trump sincerely believes that the 2020 election was stolen. He expresses discomfort with the precedent set by this case, which he argues would position the United States federal government as the “arbiter of truth.”
“[E]ven assuming Trump knew his claims were false, there would still remain the controversial effort to link his false claims to the actions of others in challenging the election. And even then, there remains the constitutional problem of criminalizing political lies,” Turley continued. “And even with a conviction, there would remain a serious threshold constitutional question that is not entirely answered by determining what was in the mind of Donald Trump.”
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