Donald Trump’s latest indictment addresses his conduct in attempting to overturn the 2020 election, not his words, just as the protective order entered on Aug. 11 bans witness intimidation, not free speech.
In entering a mixed protective order, Judge Chutkan ruled that witness interview transcripts and recordings would be considered sensitive, subject to non-disclosure outside the courtroom, telling Trump’s counsel that, “Your client’s defense is supposed to happen in this courtroom, not on the internet … Disclosure of any of those materials creates too great a risk that witnesses may be intimidated.”
Protective Order Preserves Evidence and Protects Witnesses from Violence
In the run-up to his first criminal indictment, Trump posted a photo of himself with a baseball bat next to prosecutor Alvin Bragg’s head. A few hours later, Trump rant-posted about “death and destruction” if Bragg pursued criminal charges against him, threatening the same mob violence he orchestrated on J6. This week, a MAGA supporter parroted Trump’s online lust for political violence, advertised detailed plans to assassinate Democrats, and was fatally shot.
Trump’s violent online rhetoric had already caught a different judge’s eye when Jack Smith sought a protective order in the election fraud case. Smith’s motion relayed Trump’s threat, in call caps, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Smith left unsaid that Trump posted this threat two days after former VP Mike Pence - the key witness in the election fraud case - disputed Trump’s account of their J6 conversations on Fox and clarified that Trump had, in fact, urged him to violate the Constitution.
Trump’s response to the motion foretold his defense strategy, which attempts to re-cast his violent threats, ‘Stop the steal’ rallies, fake elector scheme, J6, and pressure campaign against Pence and other elected officials as “political speech” protected under the First Amendment.
Fraud, Threats of Violence, and Intimidation Are Not Protected Speech
If you advertise a dangerous product, ask a hitman to kill your husband, or hatch a Ponzi scheme, the First Amendment won’t defend you, even though your crime was committed through speech. Speech and statements made in pursuit of crimes, like consumer fraud, incitement, bank fraud, racketeering, insurance fraud, and conspiracy to commit murder, are prosecuted in federal court every day, and the First Amendment is irrelevant.
Trump is working to convince Americans that the 1st Amendment protects violence, fraud, intimidation, and conspiracy, but he will soon find that Americans are smarter than that. An ingenious and time-tested shield, the 1st A balances competing liberties by always guarding the difference and the interplay between speech and criminal conduct. As the election fraud indictment expressly acknowledges, “[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.”
But Trump didn’t stop at lying. After 60+ judicial challenges, fake elector, and official pressure schemes failed at the state level, Trump summoned his followers to Washington for a “wild” protest on J6 to block the electoral count at the federal level.
Trump then delivered a fiery speech on the ellipse, worked the crowd into a violent lather, told them to go to the capital, and watched the violence on TV for over three hours before asking the crowd to disperse. Enjoying the mayhem from the safety of his dining room, Trump watched as his supporters attacked capital police, chanting “hang Mike Pence,” and reportedly agreed that Pence deserved to be hung.
Although Trump’s “Stop the steal” attack on the US capital was an insurrection that should bar him from holding office again, Smith’s indictment targets Trump’s other conduct, rendering Trump’s free speech defense legally irrelevant.
Coercion Isn’t Protected Speech Either
The indictment identifies, in painstaking detail, Trump’s other criminal actions, including: trying to block the official certification of votes; supporting the fraudulent presentment of fake Trump electors; pressuring the vice president to set aside the electoral count; and extorting the Georgia Secretary of State to “find” 11,000 non-existent votes with a veiled threat of retaliation if he did not.
Trump privately admitted more than once that Biden defeated him, despite his public bombast to the contrary. But even if narcissism atrophies the brain to such an extent that Trump sometimes believed his own lies, there’s a criminal distinction between believing something and acting on it illegally. The only legal way to redress election fraud is to challenge it in court, which Trump tried and failed, repeatedly.
After consistent losses in front of Trump-appointed judges, Trump had no viable legal path to impede the official counting of the electoral votes.
Despite his best efforts to bend the 1st A from a protective shield into a violent sword, the American public knows the difference, and so, apparently, does Judge Chuktan.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.
