In recognition of the challenges posed to existing interpretations of the protections of the First Amendment, Hasen has called for adoption of a set of measures

that implicate First Amendment concerns including disclosure of the funders of both online ads and mass coordinated activities aimed at influencing elections; labeling deep fakes and other synthetic media as “altered”; tightening the ban on campaign expenditures by nonmedia foreign persons, entities and government; and enacting a narrow ban on empirically verifiable false election speech.

In an essay published Tuesday night on Slate, “U.S. v. Trump Will Be the Most Important Case in Our Nation’s History,” Hasen wrote:

The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment by far of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.

Hasen predicted that when tried, Trump will assert First Amendment defense, including his right to make false claims. But, Hasen argued:

Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.

Francesca Procaccini, a law professor at Vanderbilt, shares the view that in the contemporary political environment, there needs to be more regulation of speech. In an email, she wrote:

The left is split on how to respond to misinformation precisely because the left is historically committed to free speech and also to uplifting marginalized voices. It was once true that these concerns overlapped (the people’s voices who were being silenced were marginalized voices), but the script has become more complicated. Now, many on the left have increasingly come to understand that speech itself (whether false speech or hate speech) is also detrimental to marginalized communities.

“For my own part,” Procaccini wrote, “I believe speech and ideas have power, and like anything of great power, they require some democratic oversight.”

“The virality, anonymity and speed of the internet,” she continued, have “fundamentally changed the ‘circumstances’ and the ‘context’ of speech online, justifying different regulations on speech in that environment than we would want to impose in the physical public square.”

Since Citizens United, which effectively freed corporations and unions to spend money on electioneering communications and to advocate the defeat or election of candidates directly, “the left has been increasingly skeptical of a maximalist approach to free speech, given how the conservative Supreme Court has used the right to protect and advance conservative policy goals,” Procaccini argued. “Now that First Amendment-protected speech quite literally incited a riot and nearly a coup, long-running concerns about the weaponization of free speech appear more salient.”

Catharine MacKinnon, a law professor at the University of Michigan, expanded on the left critique of free speech jurisprudence in a 2020 article, “Weaponizing the First Amendment: An Equality Reading.” MacKinnon argued that:

Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful. Starting toward the beginning of the 20th century, a protection that was once persuasively conceived by dissenters as a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections in the dark.

Freedom of speech, MacKinnon continued,

has at the same time gone from a rallying cry for protesters against dominant power to a claimed immunity of those who hold dominant power. Thus weaponized, the First Amendment has morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.

Justice Elena Kagan used the phrase “weaponizing the First Amendment” in a 2018 dissent in Janus v. State, County and Municipal Employees. The majority decision was a devastating blow to public employee unions. It concluded that “states and public-sector unions may no longer extract agency fees (partial union dues) from nonconsenting employees.”

This procedure, the majority wrote,

violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

“There is no sugarcoating today’s opinion,” Kagan argued in her dissent:

The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment.

The majority, Kagan continued, “has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” The majority’s road “runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”

One of the most telling and damning allegations in the Fulton County indictment goes to the shocking sweep of the Trump plan to steal an election he knew he would lose. Act 1 of the indictment recounts how Trump discussed with an unindicted co-conspirator, four days before the election, the content of a speech “that falsely declared victory and falsely claimed voter fraud.”

This revelation not only punctures Trump’s defence that he believed he won the election and that it was stolen from him, but also displays the criminal intent with chilling premeditation. If he ever testifies in court, Trump will have to argue he firmly believed he was robbed of his victory by fraud before it happened.

The indictment’s charges against Trump go full circle, concluding with a reprise of his run at Brad Raffensperger, the Georgia Secretary of State. Trump again claimed he won and should be declared the victor in a letter to Raffensperger dated September 2021, almost a year after the election –  perhaps as a proffer of evidence that he still believed his own misrepresentations.

As predicted in advance by Byline Times, the lion’s share of the indictment was based on broad Georgia statutes criminalizing false statements and filings. 22 of the 41 felony counts involved false statements and documents. Many other overt acts listed in furtherance of the conspiracy consisted of misrepresentations which could have been charged as additional Racketeer-Influenced and Corrupt Organization or RICO counts.

The Fulton Country District Attorney is looking at the same facts as the federal indictment, but under different laws and with the potential for new uninvestigated evidence

Stephen Humphreys

The King of Falsehoods

Of 19 alleged RICO conspirators indicted, 14 were charged with knowing misrepresentations to state authorities. Strangely, two of the most outlandish proponents of the Big Lie, Sidney Powell and Jenna Ellis, were not charged with making false statements — perhaps because they did not do the speaking to state authorities, but were usually only backup singers to Rudy Giuliani on television — though that could be charged under the Georgia criminal statutes.

Their false statements may have also been omitted from the charges because even Donald Trump said their conspiracy theories sounded “crazy,” though he went along with their tales that Venezuelan dictator Hugo Chavez, dead since 2013, rigged the voting machines (one of the lies that cost Fox News $787 million, so far, in cases brought by voting machine companies).

One of the elements of the Georgia false statement criminal statute is that the misrepresentation is knowing.

Powell and Ellis’s state of mind could prove an evidentiary problem. But Trump’s declaration that they were off their rockers is excellent evidence that he knew his co-conspirators were spinning yarns about the stolen election.

It is no surprise that Trump himself is the undisputed misrepresentations champion, charged with six counts of false statements and false filings, with two additional counts involving forgery. It should also come as no surprise that Trump actually inflated some of the misrepresentations of his co-conspirators/co-defendants.

In Act 113 of the indictment, Trump told Georgia Secretary of State Brad Raffensperger, in the infamous phone call trolling for 11,780 more votes, that 250,000 to 300,000 “ballots were dropped mysteriously into the rolls” in the November 2020 election. Trump also claimed that “hundreds of thousands of ballots” were “dumped” into Fulton from an adjacent county. He said “thousands of voters were turned away from the polls after being told “a ballot had already been cast in their name.” Without showing his calculations, Trump claimed he won Georgia by 400,000 votes.

There was no source for any of this information in the indictment, even in the prior claims of Trump’s confederates.

Trump attributed 18,000 fraudulent votes for Biden at the State Farm Arena to Ruby Freeman, who Giuliani only accused of passing around “USB ports” like “vials of heroin.”

In apparent compensation, Trump reduced the claims for identifiable groups of people. Giuliani told the Georgia legislature 10,315 dead people voted. The Georgia lawsuit filed by Trump and John Eastman on the last day of 2020 claimed “as many as 10,315 or more” dead people voted in Georgia in 2020, but Trump told Raffensperger it was close to 5000. Raffensperger said the actual number was two dead people for whom votes were recorded.

According to the indictment, Trump told Raffensperger that 904 voters illegally registered at a post office box, down from “at least 1043“ listed in the lawsuit. Trump told Raffensperger there were 4502 unregistered voters, up from 2423 listed in the lawsuit.

In the infamous call, Trump appears to have omitted the claims in the lawsuit that over 66,000 underage Georgians voted, and over 2500 felons.

As Byline Times predicted, the verification of these knowingly false numbers formed the basis of one of the most glaring RICO felony misrepresentation counts. Because the verification of a lawsuit is made under oath, it could satisfy even the stricter requirements for perjury and federal false statements felonies.

As predicted, Trump’s Tweets played a role, with 13 being listed as overt acts in furtherance of the conspiracy. Though some are ambiguous, some of them include clear and verifiable knowing misrepresentations of matters under state jurisdiction.

Act 114, for example:

On or about the 3rd day of January 2021, DONALD JOHN TRUMP caused to be tweeted the Twitter account @RealDonaldTrump, “I spoke to Secretary of State Brad Raffensperger yesterday about Fulton County and voter fraud in Georgia. He was unwilling, or unable, to answer questions such the ‘ballots under the table’ scam, ballot destruction, out of state ‘voters’, dead voters, and more. He has no clue.”

The indictment is conservatively charged, however, and did not include such tweets as felony counts, though they fit the broad Georgia statute.  There is nothing in the language of O.C.G.A. § 16-10-20 that requires the state to prove that a defendant made the defendant’s false statement directly to a department or agency of either a particular city or a county. Rather, the state need only show that the statement was made in a matter within the jurisdiction of one or more of those governments.

From my year-long experience consulting with Fani Willis about the scope of the conspiracy, she is staying well inside her legal limits to avoid creating an appeal issue that could drag out a Trump conviction for years. There could be a question whether some of the misrepresentations in the tweets—about Mike Pence’s power to reject Georgia’s electoral votes, for example, are matters under Georgia state jurisdiction, as required by the false statements statute. Nonetheless, the truth-challenged tweets definitely form an important part of the smoke and mirror atmospherics of the alleged RICO conspiracy.

After 16 days of lawyers questioning witnesses and presenting evidence, today prosecutors for Manhattan District Attorney Alvin Bragg will argue to the jury of five women and seven men in a courtroom downtown that Donald Trump knowingly and willingly committed 34 felonies.

The alleged crimes have nothing to do with Trump cheating on his wife with porn actress Stormy Daniels. That the single assignation in Lake Tahoe on July 13, 2006 occurred when first-time mother Melania was home in New York with infant Barron, who would celebrate his four-month birthday four days later, adds to the tawdriness, but not the legal exposure.

The first crime, as the assistant district attorneys will explain, was when Trump henchman Michael Cohen paid Daniels $130,000 in exchange for her keeping quiet. The money was wired on Oct. 27, 2016, 12 days before the Nov. 8 election and 20 days after the notorious “Access Hollywood” tape came out with Trump bragging about freely groping women.

Already wounded by his own voice and image on video, Trump had every reason to prevent Daniels from telling of their tryst which could torpedo his campaign and he conspired with Cohen to silence Daniels with the cash payment. Such a large sum meant to influence an imminent election was a federal campaign finance felony that Cohen would later plead guilty to and serve prison time for. Keep that Cohen crime in mind.

Trump’s crimes, according to the DA, would come after he was in the White House and he was repaying Cohen. In the ledgers of his real estate business, the Trump Organization, Trump had 34 times caused to have entered falsehoods that the money being sent to Cohen was for “legal expenses.” They were not “legal expenses.” Lying on business records in New York is a misdemeanor, but if it is done to further another crime, the misdemeanor becomes a felony.

Remember Cohen’s felony? Putting it together with the rigged books, you get 34 felonies by Trump from the fake notations listed in the records. If the money to Cohen was designated as “Stormy payoffs” there would be no lie and therefore no crime.

So Trump’s nature for him to lie about everything is what may finally sink him. Decades ago, Trump used to call reporters at this paper and elsewhere, falsely claiming to be PR man John Miller or John Barron, peddling some pro-Trump gossip. That may have been the origin of the name of Barron that would be bestowed on his youngest child.

These lies about the Cohen repayments are not the worst of Trump’s alleged crimes, like trying to overturn a fair presidential election in several states or subverting the certification by Congress or attempting to keep classified documents even when the federal government tried to recover. Those offenses go to his abuse of power when he held the highest office in the land.

At issue today and to be adjudged by the Manhattan jury this week are mundane lies by Trump, but they go to everything that Trump has been doing for nearly 78 years. He has always been a liar and a cheat and a charlatan, a nice word for a con man. That is his charm and his roguish appeal.

It’s fine for the host of a cheesy reality show, but it’s a terrible fit for a president.

WASHINGTON (AP) — Seeking to shame Republicans who are disloyal to him, former President Donald Trump distorted the Constitution’s meaning in asserting widespread voter fraud and insisting that state legislatures could overturn Joe Biden’s presidential win.

He’s wrong on all those fronts.

TRUMP: “Had Mike Pence referred the information on six states (only need two) back to State Legislatures … we would have had a far different Presidential result.” — statement Wednesday urging Republicans to push out Rep. Liz Cheney as the No. 3 House Republican in favor of Rep. Elise Stefanik, who voted to overturn Biden’s victory in key states.

THE FACTS: Trump’s trash talk about his former vice president is fantasy.

Pence had no authority under the Constitution, congressional rules, the law or custom to refer the results back to the states.

On Jan. 6, Pence presided over the congressional tally of Electoral College votes, carrying out his ceremonial duty to announce who has won the majority of votes for president and vice president, when the proceedings were interrupted by a mob of angry Trump supporters whom Trump had exhorted to “fight like hell” earlier that day after falsely claiming election fraud.

Pence had no path for avoiding his pro forma certification of Biden as the next president and Kamala Harris as vice president. After the proceedings were interrupted for several hours by angry protesters, the congressional tally resumed and Pence officially declared Biden the winner early the next morning on Jan. 7.

Nor did state legislatures have recourse in changing the election result. The Constitution gives state legislatures a role in the process of selecting a president by determining the “manner” in which presidential electors are appointed to the Electoral College. States did that, by passing laws specifying how electors would be chosen and then by certifying their election results in early December.

“There was no role for the vice president to refer matters back to state legislatures,” said Richard Hasen, an election law professor at the University of California, Irvine. “This is not a thing.

“Instead, it was up to Congress to count the valid electoral college votes submitted by the states, which it did.”

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TRUMP: The election was “corrupt” and “was indeed The Big Lie.” — statement Thursday.

THE FACTS: To be clear, no widespread corruption was found and no election was stolen from Trump.

Biden earned 306 electoral votes to Trump’s 232, the same margin that Trump had when he beat Hillary Clinton in 2016, which he repeatedly described as a “landslide.” (Trump ended up with 304 electoral votes because two electors defected.) Biden achieved victory by prevailing in key states such as Pennsylvania, Michigan, Wisconsin, Arizona and Georgia.

Trump’s former attorney general, William Barr, found no evidence of widespread election fraud. Trump’s allegations of massive voting fraud also have been dismissed by a succession of judges and refuted by state election officials and an arm of his own administration’s Homeland Security Department.

No case has established irregularities of a scale that would have changed the outcome.

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TRUMP: “The 2020 Election … didn’t even have Legislative approvals from many States (which is required under the U.S. Constitution).” — statement Thursday.

THE FACTS: Whether the Constitution requires “legislative approvals” is questionable.

Trump appears to be referring to the legal argument, made in several lawsuits he backed before and after the November election, that the Constitution gives the power of election administration exclusively to state lawmakers.

But the Supreme Court opted not to take up any of those cases and rule on the issue.

Had the justices sided with Trump, it would have invalidated a number of pandemic-era accommodations like expanded mail voting that were put in place not by state legislatures, but by governors, state election officials and judges.

At least a third of the justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented when the court in February declined to take up consideration of the lawsuits, indicating they were sympathetic to the argument and saying the case could be a guide for future elections.

States issued a number of rulings and orders to ensure voters could cast ballots while staying safe during a pandemic, including a Pennsylvania Supreme Court opinion that extended the receipt deadline for mail-in ballots in that state by 3 days after the Nov. 3 election.

But there’s no indication in any of the lawsuits that those changes would have altered a state’s election results. On two occasions before the election, in fact, the Supreme Court had declined to intervene in the Pennsylvania case.

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TRUMP: “Had gutless and clueless MINORITY Leader Mitch McConnell (he blew two seats in Georgia that should have never been lost) fought to expose all of the corruption that was presented at the time, with more found since, we would have had a far different Presidential result. … Never give up!” — statement Wednesday.

THE FACTS: That’s an empty exhortation. Railing against McConnell, who earlier criticized him for egging protesters on before the Jan. 6 Capitol riots, Trump seemingly suggests it’s not too late to fight to overturn the November election.

But it is.

While legislative Republicans in Arizona are challenging the outcome with an unprecedented effort to audit the election results in Maricopa, the state’s most populous county, the audit’s findings will not affect Biden’s victory in the state or nationwide.

Future elections may be a different matter, though, as Republican-led legislatures push changes to election laws.

“They can’t change the 2020 election, but they can use it as a predicate for new restrictive voting laws,” said Hasen, the election law professor.

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Associated Press writer Calvin Woodward contributed to this report.

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EDITOR’S NOTE — A look at the veracity of claims by political figures.

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Find AP Fact Checks at http://apnews.com/APFactCheck

Follow @APFactCheck on Twitter: https://twitter.com/APFactCheck

(CNN) It was a bad week for the Big Lie — former President Donald Trump and his allies’ false claims that widespread fraud is to blame for his 2020 election loss.

In one battleground state, Republican senators issued a report that eviscerated Trump’s lies about voter fraud. In another, a judge undercut Trump’s supporters’ hopes to examine nearly 150,000 mail-in ballots. And one of Trump’s closest allies, Rudy Giuliani, was suspended from practicing law in New York.

Trump and his conspiracy-minded supporters have eagerly been anticipating the conclusion of the problem-plagued audit of Maricopa County’s results in Arizona, but regardless of its final report, it will have no impact on the 2020 election results, as the election was already certified. Trump repeated his election lies at a rally in Ohio Saturday night, but last week’s blows underscored the reality that their options to continue contesting the 2020 election are narrowing.

In Michigan, the Republican-led state Senate Oversight Committee said in a report released Wednesday that there was “no evidence of widespread or systematic fraud” in the state’s 2020 election. The report included a stinging condemnation of the lies about voter fraud pushed by Trump and his supporters.

“Our clear finding is that citizens should be confident the results represent the true results of the ballots cast by the people of Michigan,” the committee, chaired by Republican state Sen. Ed McBroom, said in its report. “The Committee strongly recommends citizens use a critical eye and ear toward those who have pushed demonstrably false theories for their own personal gain.”

Then, in Georgia on Thursday, a judge dismissed most of a lawsuit that claimed fraudulent mail-in ballots had been cast in Fulton County, the state’s largest county, in last year’s election — a blow to the pro-Trump plaintiffs’ bid to conduct an in-person examination of nearly 150,000 mail-in ballots with high-powered microscopes.

The judge dismissed seven of the lawsuit’s nine claims against Fulton County officials, only allowing the plaintiffs’ request for digital images of the ballots under the state’s open records law to move forward. Biden won the state by 12,000 votes, and Georgia officials have already audited the 2020 results three times, including a hand recount.

“Last year, I told President Trump and others who push the Big Lie to ‘put up or shut up.’ It’s been six months and no proof of wrongdoing has been produced. Enough is enough — this whole circus must end,” Robb Pitts, the chairman of the Fulton County Board of Commissioners, said in a statement.

The same day, Giuliani, who had been Trump’s personal lawyer and one of Trump’s closest allies in advancing lies about the 2020 election, was suspended from practicing law in New York state by an appellate court that found he made “demonstrably false and misleading statements” about the 2020 election.

In a ruling released following disciplinary proceedings, the court concluded that “there is uncontroverted evidence” that Giuliani, the former Manhattan US attorney, “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.”

Giuliani’s “conduct immediately threatens the public interest and warrants interim suspension from the practice of law,” the court wrote.

Trump has railed against the actions that challenge his lies about the 2020 election. He attacked his political opponents on Saturday in front of an Ohio crowd that chanted “Trump won” and issued statements last week riven with more falsehoods.

Targeting Michigan’s McBroom and state Senate Republican leader Mike Shirkey, he included both senators’ phone numbers in a statement that said: “Call those two Senators now and get them to do the right thing, or vote them the hell out of office!”

In another statement, he complained about the Justice Department’s Georgia lawsuit: “Actually, it should be the other way around! The PEOPLE of Georgia should SUE the State, and their elected officials, for running a CORRUPT AND RIGGED 2020 PRESIDENTIAL ELECTION—and for trying to suppress the VOTE of the AMERICAN PEOPLE in Georgia.”

Of Giuliani, he said: “Can you believe that New York wants to strip Rudy Giuliani, a great American Patriot, of his law license because he has been fighting what has already been proven to be a Fraudulent Election?”

Arizona audit wrapping up

Another important moment could come when the results of the so-called audit ordered up by state Senate Republicans and conducted by Cyber Ninjas — a Florida-based company with no experience auditing elections, led by a chief executive who had advanced Trump’s lies about voter fraud on social media — are released.

The Twitter account for the audit tweeted Friday night that “paper examination and counting are finished today.” And the individual hand count which looked at two races, the 2020 presidential and US Senate contest, finished days ago, according to Arizona audit spokesman Randy Pullen.

But the Arizona Senate Republicans have not stated when their report will be released.

“Everybody is anxiously awaiting the result!” Trump said in a Wednesday statement.

That, though, was another falsehood.

Trump’s most ardent supporters are awaiting the report on the audit’s findings — which is likely to be delivered first to state Senate Republicans, who would then determine how to release it.

However, experts in conducting and auditing elections and observers of Arizona’s proceedings have repeatedly said that the Cyber Ninjas’ methods are deeply flawed and could easily introduce errors into its final tallies. Those problems have made the audit’s findings more likely to be used as a propaganda tool by Trump’s supporters than a document that is taken seriously outside the “Stop the Steal” movement — a rallying cry adopted by Trump and his supporters.

Arizona Secretary of State Katie Hobbs, a Democrat who is running for governor, has maintained a list of problems that observers on the floor of the Veterans Memorial Coliseum in Phoenix have noticed.

Among the recent updates: “insecure cybersecurity practices” used by Cyber Ninjas; misplaced ballots; and auditors writing directly on the original labels on Maricopa County’s ballot boxes, which Hobbs’ document notes “violates the agreements and questions the reliability and integrity of all the county records.”

Justice Department targets Georgia law

The legal battles and audits are only one front of the ongoing fight over the 2020 election. In Republican-led states, including Florida, Georgia and Iowa, GOP lawmakers and governors have already enacted new laws that will make voting more difficult. Republican lawmakers in Michigan, Arizona, Texas and other states are also advancing restrictive voting measures.

President Joe Biden’s Justice Department said Friday it is suing the state of Georgia over its new restrictive voting law.

The state law imposes new voter identification requirements for absentee ballots, empowers state officials to take over local elections boards, limits the use of ballot drop boxes and makes it a crime to approach voters in line to give them food and water.

Republicans had cast the measure as necessary to boost confidence in elections after the 2020 election and Trump’s repeated and unsubstantiated claims of fraud, but Democrats in the state have called the new law voter suppression and likened it to Jim Crow-era voting laws.

“These legislative actions occurred at a time when the Black population in Georgia continues to steadily increase and after a historic election that saw record voter turnout across the state, particularly for absentee voting, which Black voters are now more likely to use than White voters,” Justice Department Civil Rights Division leader Kristen Clarke said in a news conference. “Our complaint challenges several provisions of SB 202 on the grounds that they were adopted with the intent to deny or abridge, Black citizens, equal access to the political process.”

Georgia Gov. Brian Kemp, a Republican, issued a defiant statement in response to the department’s announcement, calling the lawsuit “born out of the lies and misinformation the Biden administration has pushed against Georgia’s Election Integrity Act from the start.”

Kemp accused the administration of “weaponizing the US Department of Justice to carry out their far-left agenda that undermines election integrity and empowers federal government overreach in our democracy.”