The Humongous Hole In Defendant Trump's 'Free Speech' Argument

The ink wasn’t dry on the print-outs of Tuesday’s indictment of Defendant Trump before his supporters and lawyers and even his rivals for the Republican presidential nomination were all over the airways with the bogus defense that nothing he did back in 2020 was a crime because it was all “free speech” protected by the Constitution.

He was charged with conspiracy, stupid.

Under the laws of the United States, a criminal conspiracy is committed when at least two people agree to commit a crime at some point in the future, and at least one overt act is taken in furtherance of the agreement. Speaking is the crime in a conspiracy. If you’re a mob boss, and you conspire to, say, import a half-ton of cocaine, you don’t have to go out and drive the speed boat or fly the plane delivering the cocaine to the United States. All you have to do is conspire with others to commit the crime and take an act necessary to do it, such as provide the money to buy the drugs at their source, or put one of your co-conspirators in touch with the man who has the money or the man who has the drugs.

You can be convicted of a criminal conspiracy even if the crime alleged is not in fact carried out or accomplished. In the above example, no drugs have to be paid for or brought by boat or flown to the U.S. for the criminal conspiracy to have been committed. All the defendant charged has to do is talk about the crime with his or her co-conspirators and take a step towards its commission.

Five members of a militia group called the Wolverine Watchmen were convicted last year of conspiring to kidnap Michigan Governor Gretchen Whitmer. Two of them were convicted of the most serious kidnapping charges and face life in prison. The other three were convicted of lesser charges carrying 12, 10, and 7 years in prison. Governor Whitmer was never kidnapped, but all five men conspired to kidnap her verbally and in text messages and other communications and committed overt acts such as purchasing weapons and materials necessary to make explosive devices that they planned to use in commission of the crime.

They talked and they acted and they are going to jail.

There is no right to free speech when it comes to planning to commit a crime, just as there is no right to privileged communication with your lawyer if you speak to your lawyer about a crime you plan to commit. It’s called the “crime-fraud exception” to the rule privileging communications between a lawyer and his or her client. In other words, no free speech for that, bub.

Three of the charges in the indictment of Defendant Trump are conspiracies: conspiracy to defraud the United States by corruptly planning to impair or defeat a lawful function of the government, the counting and certification of electoral ballots on January 6, 2021; conspiracy to obstruct the same lawful proceeding, that is the counting and certification of electoral ballots; and conspiracy to deny the people of the United States their right to vote and have their votes accurately counted.

Defendant Trump is charged with a fourth count, that of obstructing or attempting to obstruct an official in the carrying out of his duties. This count is not a conspiracy, apparently because it covers Defendant Trump’s direct communications with Vice President Pence in attempting to get him to agree to delay, obstruct, or even cancel the counting and certification of electoral ballots on January 6.

The indictment contains a lot of description of communication, or speech, between Defendant Trump and his co-conspirators planning to commit the crimes of impairing or obstructing the counting of electoral ballots as well as planning to deny citizens their right to have their votes counted in the election of 2020. The indictment describes multiple meetings in the Oval Office between the Defendant and his co-conspirators when they discussed the fake elector scheme, the scheme to get state legislators to decertify their legitimate electoral ballots, and even a plan to use the U.S. military to seize voting machines and re-run the election so that Defendant Trump would win.

Overt acts were committed in the carrying out of the various schemes. Sample fake elector ballots were sent to Republican officials in all seven battleground states; phone calls and other forms of communication were used to influence or convince people who were not co-conspirators, such as Secretary of State Brad Raffensperger in Georgia, to falsify election results. Officials of battleground states such as Michigan were invited to the Oval Office so that they could be pressured to use their power as legislators to overturn the election in their states.

The indictment puts defendant Trump right in the middle of all of it, either in the Oval Office personally, or on the phone, or in meetings elsewhere with one or more of his co-conspirators in committing the crimes charged in the indictment. Defendant Trump met personally with Vice President Pence in the commission of the crime alleged in Count Three, obstruction of an official of the government in the carrying out of his duties.

People around this country are charged every day with that crime when they are alleged to interfere with a policeman who is arresting them for a crime as minor as a traffic violation. Interfering with a cop or a vice president is the same, in the case of local or state cops, a state crime, in the case of the Vice President, a federal crime.

There are many witnesses described by their titles in the indictment who will be called upon to testify against Defendant Trump for having tried to get them to help him carry out his plans to overturn the election. Some of the witnesses talked with Defendant Trump’s co-conspirators, who in turn talked to Defendant Trump. All of it was part of the conspiracies alleged in the indictment.

It is unknown whether the co-conspirators will be charged at a later date in separate indictments or one joint indictment with the same crimes they conspired to commit with Defendant Trump, but if I were to guess, there are six people who probably didn’t sleep well last night, and whose bank accounts are already smaller because they have had to engage lawyers of their own in contemplation of charges against them in the future. It was reported last night that lawyers for at least two of the co-conspirators have already contacted the Office of the Special Counsel making arguments against charging their clients. What this means has not been revealed, but it could mean that the lawyers were offering up the cooperation of their clients in return for reduced charges or even no charges when the time comes for the Justice Department (DOJ) to deal with them and their crimes.

We’re probably also going to hear a theory of the defense that Defendant Trump cannot be charged for actions he took while he was president, making some sort of case that he did everything as part of his official duties. This could be called the heads-I-win-tails-you-lose defense, because the same people, Defendant Trump included, were only too happy to use the DOJ rule against indicting a sitting president on charges that he committed offenses while he was in office. They loved crowing that the DOJ would have to wait until he was not the president to charge him. Well, that day has come, and the heads-I-win-tails-you-lose defense is as bankrupt and bogus as the free speech defense.

What all of Defendant Trump’s defenses amount to is the idea that he was above the law as president, and now he’s above the law because he is a candidate for president. We will all have to wait with bated breath for the citation of the constitutional provision that we don’t have presidents, we have kings, because that is what Defendant Trump’s defense amounts to.

One further note. Not enough has been made of Count Four in the indictment, “Conspiracy Against Rights.” This is the so-called Ku Klux Klan count, using a law written after the Civil War to make it possible to charge Klan members and others for denying freed slaves their right to vote.

Well, in this case, the charge is that Defendant Trump and his co-conspirators attempted to deprive millions of their right to vote and have their vote counted. There were attempts to disallow tens of thousands of votes in Pennsylvania and other states for one bogus reason or another, attempts to wipe the legitimate votes of citizens from the count because they were alleged to be dead or to be non-citizens. This is the single most serious count in the indictment because it is personal to everyone who voted, and it is so profoundly anti-democratic. We can’t have a democracy without the right to vote, and that is precisely what Defendant Trump is accused of. He tried to take away our votes. That is the biggest crime of all.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

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