FIRE statement on 2020 election indictment of former President Donald Trump

As an unapologetic, nonpartisan defender of the right to free expression, FIRE vigorously opposes expanded application of criminal statutes to increase potential liability for speech protected by the First Amendment. While fraud and speech integral to criminal conduct do not enjoy First Amendment protection — the government may, for example, criminalize lying on an insurance claim, or passing a note to a bank teller to commit bank robbery — these exceptions must remain narrow and well-defined in our laws and jurisprudence. 

The federal indictment of former President Trump on charges related to his actions between the 2020 presidential election and President Biden’s inauguration implicates these First Amendment exceptions and the need for their narrow application. 

The Department of Justice correctly acknowledges that former President Trump had “every right” under the First Amendment 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.” 

But the indictment argues former President Trump did far more than that. It claims he violated federal law by using “knowingly false claims of election fraud” to try to “get state legislators and election officials to subvert the legitimate election results” and “convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them.” These actions, DOJ alleges, defrauded the United States and violated 18 U.S. Code § 1512, which prohibits “corruptly . . . obstruct[ing] . . . or imped[ing] any official proceeding, or attempt[ing] to do so.”

In the United States, no one is above the law and everyone is innocent until proven guilty. It will be up to a jury, in its role as factfinder, to decide whether former President Trump violated federal law. To convict, a jury must hold DOJ to its burden of proving beyond a reasonable doubt that former President Trump (1) knew his election fraud claims were false but repeated them anyway — “corruptly” — in an attempt to (2) have others ignore their legal duties in order to (3) prevent certification of the electoral vote. 

The First Amendment’s bar against criminalizing protected speech demands nothing less.