The Trump indictment fails the Nixon test

By seeking to criminalise political lies, it comes up against protections laid out in the First Amendment.

The bottom line of the recent Trump indictment alleges that he knew or should have known that he lost the election fair and square, and that his actions in challenging the result were therefore corrupt and unlawful. 

The problem with the indictment is that the Supreme Court has repeatedly held under the First Amendment that there’s no such thing as a false opinion. Every American, and especially politicians, have the right to be wrong about their opinions. They also have the right to express their false opinions, at least as long as they honestly believe they are true. 

Imagine what the world would look like if every politician who told a fib in order to get elected were to be prosecuted and imprisoned. Our legislative sessions would have to be held in the Allenwood prison rather than in the halls of Congress. Lying has long been endemic in politics. That’s why we honour George Washington and Abraham Lincoln as truth-tellers among the array of politicians who don’t meet that standard. 

Indeed, this indictment itself fails to meet the standard of honesty that it requires of Donald Trump. In describing his speech of December 6, this is what it says: “Finally, after exhorting that ‘we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,’ the defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give members of Congress ‘the kind of pride and boldness that they need to take back our country’.” 

Yet the indictment omits two key words from that speech – “peacefully” and “patriotically” – which suggest that the speech itself was protected advocacy under the First Amendment rather than unlawful incitement. A lie by omission is as serious as a lie by commission, especially in the context of a legal document such as an indictment. 

Accordingly, for the US government to win its case, it will have to prove beyond a reasonable doubt that Donald Trump actually believed at and around January 6 that he had lost the election. 

The indictment alleges that many of his associates told him he had lost, but I am aware of no smoking gun testimony that Trump actually admitted that he believed them. On the contrary, many people can testify that Trump told them the election had been stolen and that they believe he believed that. 

As Thomas Jefferson wrote more than 200 years ago: “We have nothing to fear from the demoralising reasoning of some, if others are left free to demonstrate their error …” The constitutionally appropriate response to false political opinions is the open marketplace of ideas, not the closed prison cells of censorship. 

If this trial is held in the District of Columbia – one of the most anti-Trump areas of the nation – a skewed jury may well disregard the First Amendment and convict. But the appellate courts, especially the Supreme Court, could prioritise the First Amendment and reverse any conviction that violates the Constitution. 

The indictment endangers not only free speech but also the right to counsel. It describes several people who are believed to be Trump’s lawyers as unindicted co-conspirators. This makes it difficult for Trump to claim that he relied on their legal advice in challenging the election. It also sends a dangerous message to creative lawyers whose advice may be second-guessed by a prosecutor after the fact. As one of Trump’s lawyers in his first Senate impeachment trial, I am particularly concerned about the impact this indictment could have on the willingness of lawyers to represent him or other controversial politicians. 

All in all, this indictment does not seem to serve the interests of non-partisan justice. It appears to be yet another manifestation of the weaponisation of the criminal justice system for partisan advantage. 

When an attorney general authorises the prosecution of his president’s main political opponent in an upcoming election, the case must be so strong that it leaves no doubt as to its non-partisan credibility. It should meet what I call the “Nixon standard”. 

The case against Richard Nixon was so strong that members of his own party and independents supported his impeachment and possible prosecution. That standard does not seem to have been met in this case.