“BEING WRONG DOES NOT MAKE TRUMP A CRIMINAL” – Legal opinion by Alan Dershowitz, Emeritus Professor at Harvard Law School (redacted at DT 3/7/23):
“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 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, and false ones, as long as they honestly believe they are true.
Lying has long been endemic in politics. That’s why we honor George Washington and Abraham Lincoln as truth-tellers among the array of politicians who don’t meet that standard.
The indictment fails to meet the standard of honesty that it requires of Donald Trump. In describing his speech of December 6, 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’.”
It 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 a legal indictment.
To win its case, the US Government 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.
If this trial is held in the District of Columbia – one of the most anti-Trump areas of the nation – a jury may disregard the First Amendment and convict. But the appellate courts, especially the Supreme Court, could prioritize the First Amendment and reverse a conviction that violates the Constitution.
The indictment endangers free speech and the right to counsel, naming 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 sends a dangerous message to creative lawyers whose advice may be second-guessed by a prosecutor after the fact.
This indictment does not seem to serve the interests of non-partisan justice and is yet another manifestation of the weaponization of the criminal justice system for partisan advantage.
When an attorney general authorizes 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”.
That standard does not seem to have been met in this case.”