How Trump Could Be Saved by the Right to Lie

By Rick Esenberg

Wednesday, August 09, 2023

 

At the outset of the indictment of Donald Trump for conduct related to certification of the 2020 presidential election, prosecutor Jack Smith makes what many people — particularly non-lawyers — will regard as an extraordinary claim. He says 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.” Is that right? Do we have a constitutional right to lie?

 

The answer is that sometimes we do. In United States v. Alvarez, a leading case on the question, six justices (Roberts, Sotomayor, Breyer, Kagan, Kennedy, and Ginsburg) held that a statute making it a crime to falsely claim the receipt of military honors or medals was unconstitutional. In two separate opinions, each rejected the notion that speech loses its constitutional protection simply because it’s false. While there are some exceptions to this — defamation, perjury, commercial fraud — these justices were unwilling to place speech outside the protection of the First Amendment just because the speaker knows it to be false.

 

Three conservatives (Scalia, Thomas, Alito) dissented, arguing that false speech has no intrinsic First Amendment value. But even these justices found it was sometimes necessary to provide a “measure of strategic protection” to false statements in order to ensure sufficient “breathing space” for protected speech. This is particularly so with speech regarding matters of public concern where, Justice Alito wrote, it would be “perilous to permit the state to be the arbiter of truth.” There are areas of life where we may want people to err on the side of caution. Speech on matters of public concern — areas where we rely on the process of debate to ascertain the truth and correct erroneous consensus — is not one of them.

 

The indictment of Trump for his post-election conduct contains page after page of what can only be described as speech. Trump and his cohorts repeatedly claimed that there had been fraud and that the 2020 election had been stolen. They urged people who they claimed could do something about it — electors, state officials, members of Congress, former vice president Pence — to act. These claims were baseless, and the legal theories that Trump and some of his lawyers claimed would secure him a second term are half a bubble off plumb. But if Trump and his cohorts were free to lie, is there anything here that can be constitutionally punished?

 

Calling Trump’s action “fraud” does little work. While his conduct may fall into some everyday definitions of the term, criminal fraud has a particular meaning, centered on kickbacks, bribery, or wrongly obtaining property. If First Amendment “breathing room” gives people a right to lie in politics, then lying in politics can’t be fraud.

 

Nor are the constitutional difficulties solved by alleging that these speech activities might have “obstructed” a congressional proceeding to count the vote or, by causing certain votes not to be counted, interfered with a person’s right to vote. But most false speech on matters of public concern might cause government officials to act. If free speech requires that we not punish persons who are found to have lied because doing so would risk silencing speakers, this forbearance can’t be limited to speech that is certain to have no impact on the government. Put differently, if there is a right to lie in public debate, it does not work to call the lies “fraud,” “obstruction,” or “interference.”

 

There are at least two potential avenues for Smith. The first is to tie Trump’s speech to an illegal act. Not all actions in a conspiracy need to be criminal. It is lawful for me to drive my friend to the bank, but not if I know he intends to rob it, or even that he plans to present false identification to abscond with my Aunt Martha’s life savings.

 

The much-maligned “fake” Trump electors provide an opening to make this case, but it’s not clear it works. Fraud normally involves a misrepresentation that is intended to mislead. But the “votes” cast by these electors were not like phony identification. And while they can superficially be compared to forgeries, they aren’t that either. They were not calculated to fool or mislead anyone because no rational actor could have expected them to do so. They were an attempt — even if futile and silly — to preserve electoral votes for Trump should it ultimately be determined that he was the lawful winner of the states in which they were cast. The indictment is wrong — as a matter of law — to suggest that they “created” the controversy or that they themselves could have any effect.

 

Perhaps Smith recognizes this, by implying that the “fake” votes would be okay if the electors were just there in case the courts ultimately found that Trump won. The indictment says that certain Trump electors were “fooled” into thinking this. But, it goes on, the “real purpose” was not to win in court but to persuade Pence and Congress to delay the count. This, he concludes, was a crime because Pence had no power to do this.

 

But this doesn’t relieve our constitutional difficulty. It alleges that Trump was pushing a bad reading of the Twelfth Amendment. Advancing a bad legal theory is not fraud. Unless one lies about past court decisions, it is not even false in the sense of how we normally use that word. None of this could work unless Pence actually did have the power to recognize the Trump votes or send the matter back to the states. While one might argue that the harm was the delay that would have been caused by a court challenge, we remain in the realm of political speech.

 

Perhaps a narrower conviction may be brought based on something like a false sworn statement, or perhaps a jury can be persuaded that Trump’s request for fraudulent votes to be “found” in Georgia reflected something other than a statement that fraud existed. But the broad scheme to steal the election alleged here seems to consist entirely of false speech.

 

This is why so much attention has been focused on whether Trump has a “delusion” defense. Maybe he can win if he can show that he really believed these claims of fraud — or at least keep the prosecution from proving that he knew he hadn’t won. But this assumes that his knowledge of falsity precludes constitutional protection. Alvarez suggests otherwise.

 

Perhaps this case will be the occasion for clarification of legal doctrine. Maybe the Supreme Court can be asked to rule that, while false speech is protected, speech that a speaker knows to be false is not. But Trump does not admit he lied. A jury would have to interpret his alleged out-of-court statements (i.e., that Pence was “too honest” or that there would be a new president) as admissions. It might conclude that no reasonable person could have believed the case for fraud. A court might even base liability on his reckless disregard for the truth — a standard that applies in certain defamation cases and that certainly seems appropriate for Trump.

 

The Court has, at times, recognized that sufficiently robust intent and knowledge requirements may reduce an honest speaker’s fear of wrongful conviction. But any of this would require modification of Alvarez and might run the very risk that even Justice Alito and the conservatives found to be unacceptable. The rules you adopt in one case will be used in the next. Fact-finding can be an unpredictable process, and, particularly in our tribal destroy-your-enemies political climate, many speakers would be unwilling to run the risk of a post hoc determination that they knew what they said was wrong. They would err on the side of silence.

 

Trump had a political and moral duty not to claim he won the election unless he had proof. He should have been convicted by the Senate. I can’t understand even considering him for the GOP nomination. But criminal prosecution is another matter. Tim Carney put it well. Smith makes a great case against voting for Trump; “I had the right to lie” is not a great campaign slogan. But the case that he committed a crime that can be constitutionally prosecuted is much tougher to show.

 

I am a conservative who dislikes Trump and the specious claims of “stop the steal” a great deal. But I like the Constitution and free speech even more.