What Fox Analyst Turley Gets Wrong About Trump (Nearly Everything)

@nationalmemo
Jonathan Turley

Jonathan Turley

Following news of former President Donald Trump’s recent federal and Georgia indictments, Fox News utilized its top legal contributor Jonathan Turley to promote faulty arguments in Trump’s defense. Fox News invited the George Washington University law professor to comment about Trump indictments in 22 appearances between August 1 and August 25, more than any other legal contributor.

A federal grand jury indicted Trump over his attempt to overturn the 2020 election results

  • Trump’s first August indictment focused on his attempts to overturn the 2020 election results. While Trump’s infamous claims of nonexistent voter fraud and appeals to illegally overturn the election were a central focus of the indictment, legal experts have pointed out that he is being charged for his alleged criminal actions, not for his speech.
  • On August 1, a federal grand jury indicted Trump on four charges. As CBS reported, these charges include “conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.” [CBS, 8/2/23]
  • The indictment specifically stated Trump had a right to free speech, even if his claims were false. The second page of the indictment noted that Trump “had a right, like every American, 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.” [The Washington Post, 8/19/23]
  • While Trump’s spoken words and social media posts are used as evidence in the indictment, that evidence is used to prove the motive behind his actions. As noted by legal experts, “Trump is being prosecuted for his deeds, not his words.” While Trump had the right to claim the election was stolen, he did not have the right to attempt to throw out the lawful results through a criminal conspiracy. [Media Matters, 8/10/23]
  • Former U.S. Attorney Barb McQuade told Salon: An indictment does not require “a recitation of all of the evidence.” She added, “All that is required is a brief, plain statement of the charge.” The Salon piece also quoted Hofstra University’s School of Law professor James Sample arguing it’s “reasonable” to anticipate the release of new evidence later into the trial. [Salon, 8/3/23]

Jonathan Turley pushed a false narrative that Trump is being charged for “free speech” and claims the indictment is a threat to the First Amendment.

  • Turley incorrectly claimed that DOJ special counsel Jack Smith was indicting Trump for misinformation. He stated that Trump is “being indicted for spreading lies. That's what the indictment says over and over again, and they insist that he knew they were lies.” [Fox News, The Story with Martha MacCallum, 8/3/23]
  • Turley stated Trump is “being charged with lying” and argued the indictment raises “free speech concerns.” He stated, “There are legitimate free speech concerns raised by these charges. Essentially he's being charged with lying and the government is saying you can make false statements in an election, but not if you know that they're false. But they don't really establish that he knew that they were false, even if that theory is correct.” [Fox News, America Reports, 8/3/23]
  • Turley argued that Trump is protected from charges in the January 6 indictment because of the First Amendment. He claimed, “It does not appear that this was motivated by new evidence, and in order to get a conviction, he [Smith] will have to use material that, in my view, is clearly protected by the First Amendment.” [Fox News, Special Report with Bret Baier, 8/1/23]
  • Turley floated the idea that indicting Trump and penalizing him over his actions on January 6 would “criminalize false political speech.” He claimed, “It's unlikely he [Trump] will get a trial put in front of the Florida trial, but they very well could help him out in moving these issues to the appellate court and asking them is this the criminalization of disinformation? Are you about to criminalize false political speech? Because in the past, the Supreme Court has been extremely skeptical of laws that attempt to do that.” [Fox News, Your World with Neil Cavuto, 8/3/23]
  • Turley pushed the notion that indicting Trump would be a “slippery slope” to criminalizing incorrect speech. He stated, “If you start to criminalize issues like that, you find yourself on a slippery slope where the Department of Justice can arrest politicians for not accepting what they deem the evident truth.“ [Fox News, The Story with Martha MacCallum, 8/2/23]
  • Turley claimed that the indictment and upcoming trial of Trump is a “free speech killing case.” He said, “If free speech defines us as a nation, this is a free speech killing case, and we need to deal with those implications.” [Fox News, America Reports, 8/2/23]
  • On Fox host Brian Kilmeade’s radio show, Turley accused Smith of inventing new law to go after Trump and attacking the First Amendment. Turley stated, “Smith is trying to create new law here, and he doesn't cite any new evidence. That should disturb people. There's got to be some point where you say enough -- when you start to take a hatchet to the First Amendment in this quest to nail Trump.” [Fox Radio, Brian Kilmeade Show, 8/2/23]

Trump was also indicted in Fulton County, Georgia, for his attempt to overturn election results in the state — not his “free speech”

Similar to the federal grand jury indictment, the Georgia indictment laid out Trump’s many comments and speeches as part evidence of motive for his attempts to overturn the 2020 election results.

  • District Attorney Fani Willis charged Trump and 18 others up to 20 years in prison for racketeering, specifically violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act. According to the indictment, Trump and more than a dozen allies, including former chief of staff Mark Meadows and lawyers Rudy Guiliani and John Eastman, “refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.” [Reuters, 8/15/23; Insider, 8/14/23]
  • Willis began her investigation two years ago after Trump’s January 2021 phone call with Georgia Secretary of State Brad Raffensperger was leaked. During the call, Trump suggested Raffensperger could help “find 11,780 votes” because “we won the state.” [The Associated Press, 7/31/23]
  • The investigation followed several main investigative threads. These include Trump’s call with Raffensperger, his attempt to get fake electors to certify his victory, his false claims of election fraud, his harassment of election workers, and Trump-associated Sidney Powell’s unauthorized access to Georgia’s election equipment. [The Associated Press, 7/31/23]
  • New York University law professor: “It’s not *the speech* that's criminal. It’s what the speech *does*: constitute an element of another crime.” New York University School of Law assistant professor Noah Rosenblum debunked the free speech argument, also writing, “Here, Trump is charged with conspiracy. But the lies he made about the election are part of showing his knowing fraud — an element of a crime.” [Twitter/X, 8/1/23]
  • Legal expert Marc Elias has asserted that to prove Trump guilty, prosecutors do not need motive. The government “does not need to prove motive” and jury’s will be instructed as such. [Popular Information, 8/3/23]
  • There is “no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.” In a piece for Slate, University of California, Los Angeles School of Law professor Richard L. Hasen also poked holes in the First Amendment defense, writing, “Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election.” [Slate, 8/1/23]
  • Turley argued the Georgia indictment could have a “chilling effect” on people wanting to challenge election results

    Turley questioned if Trump’s actions in Georgia were actually a crime before claiming the indictment may hurt the ability to challenge elections. Turley stated, “Is it a crime to raise them [unproven election claims]? Is it a crime, even if these allegations were untrue, to make them, to a state legislature or to a court or to the public at large. The concern is that you can create a chilling effect.” [Fox News, Hannity, 8/14/23]

    • Turley insisted Trump did not commit a crime and that the indictment will criminalize election challenges. He stated, “It's excessive and I think it's also dangerous. It essentially criminalizes challenges to elections. … Democrats and Republicans challenge these elections routinely. … They aren't crimes. They are seeking judicial review.” [Fox News, America’s Newsroom, 8/15/23]
    • Turley again claimed the indictment could criminalize election challenges in the country and compared Trump’s actions to previous election challenges by Democrats. He insisted, “This is creating a slippery slope for all elections across the country. It is the criminalization of election challenges. And I can name off the top of my head 10 Democratic politicians that could be accused of similar conduct -- challenging elections with very little evidence.” [Fox News, Special Report with Bret Baier, 8/15/23]
    • Turley argued Trump’s tweets and speeches were being treated as a separate criminal act in the indictment when in fact they exist to display motive behind his actions. He said, “You look at this indictment, and every call, every tweet, every speech seems to be a separate criminal act that composes this conspiracy.” [Fox News, Fox & Friends, 8/15/23]
    • Turley warned the Georgia indictment would potentially set a precedent based around criminalizing what is in someone’s mind. He claimed, “We can all debate what was in Donald Trump's mind but is that really the basis of a criminal case? Is that what you want for future cases?” [Fox News, Hannity, 8/14/23]

    But Trump’s call to Raffensperger was not an earnest attempt to legally challenge Georgia’s election results

    • Trump did not mention a recount at any point during the call. Furthermore, Georgia had already undergone two recounts prior to the call. As Mediate’s Michael Luciano states, “By the time Trump unsuccessfully leaned on Raffensperger, Georgia had already conducted two recounts. Moreover, telling an elections official to “find” votes in one’s favor as Trump did is not “making a case for a recount.” That is asking the official to make one the winner of an election.” [Mediate, 8/24/23]
    • The call demonstrated how Trump was not willing to accept there were no remaining paths to challenge the election results in Georgia. As Washington Post columnist Philip Bump writes, “A candidate simply hoping to ensure that all avenues were closed — even after months of scrutiny and multiple recounts — would receive information that those avenues had already been demonstrably closed with resignation and acceptance. That was not the way Trump received Raffensperger’s pushback.” [The Washington Post, 8/25/23]

    While initially critical of Trump’s call to Raffensperger, Turley has been defending it

    • On January 3, 2021, Turley called Trump’s request for Raffensperger to “find” him votes, an “opportunistic move to secure the 16 electoral votes.” He wrote, “Telling Raffensperger to ‘find’ the votes on the Saturday before the certification is breathtaking. … I am mystified by the request as I am the logic. Such an opportunistic move to secure the 16 electoral votes would not work to change the outcome.” [Twitter/X, 1/3/21]
    • Over two years after critiquing the call, Turley claimed Trump’s call to Raffensperger, which initially sparked Willis’ investigation, was “widely misrepresented.” He stated that the call “has been taken as an invitation for fraud. There is, of course, a more obvious explanation and that is the Georgia officials were saying that further state recounts might not be necessary. And it would be natural for Trump to say look, you only need to find 11,000 [votes] to turn the outcome of this election. So I don't need that many votes. Thus, a state recount is justified.” [Fox News, Hannity, 8/14/23]
    • Turley argued that when Trump asked Raffensperger to “find” votes he was actually asking for a recount. He stated, “It makes perfect sense when you are challenging an election to say I only need around 11,000 votes. So if you do a statewide review, that's not a lot in a state like Georgia. That's not criminal. That's making a case for a recount” [Fox News, Hannity, 8/23/23]

    Turley has been criticized for his legal commentary for years

    • The Nation’s justice correspondent Elie Mystal described Turley as “essentially the poster child for Trump apologists with legal credentials.” Mystal also wrote that Turley is “best known for going on TV and arguing that Trump cannot be held accountable for whatever crimes were most recently revealed” and that “his role is defending or sanitizing the wildly illegal or unprecedented behavior of Trumpworld.” [Balls and Strikes, 9/20/22]
    • Stanford Law professor Robert Weisberg described Turley as someone who “gleefully reports court decisions that go against Biden or other Democrats—and almost never or barely mentions any that the GOP loses.” In a piece titled “What Happened to Jonathan Turley, Really?” Weisberg wrote that with Turley, “we see Republican sycophancy rendered in a sober scholarly tone with pearl-clutching sanctimonious nostalgia for some pre-political era of American law.” also claimed Turley was “the anti-left Paul Revere.” [Slate, 11/18/22]
    • University of North Carolina Law professor Carissa Byrne said Turley is not only “hypocritical” but has also made a “serious breach of academic ethics and professionalism.” [Twitter/X, 1/18/21, 1/18/21]

    Reprinted with permission from Media Matters.

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