Editor’s note: The Smith report, which presents a detailed account of the evidence against Donald Trump that the counsel’s office had amassed, touches on a number of First Amendment issues.
In addition to being twice impeached during his first term in the presidential office, Donald J. Trump was the subject of multiple legal investigations after he left office in 2021. He faced prosecutions in Georgia for election tampering (now on hold because of possible conflicts of interest in the district attorney’s office), faced and lost two civil suits involving the defamation of journalist E. Jean Carroll, and was convicted of 43 felony counts in connection to falsifying documents related to hush money payments to a porn star. He was also investigated by Special Counsel Jack Smith for federal offenses related to improperly keeping and storing classified materials at Trump’s Mara Lago residence, and for multiple offenses connected with his attempt to subvert the election results of the 2020 election.
Trump vigorously contested these charges and asserted executive privilege, largely winning a decision in Trump v. United States (2024) that narrowed what Smith could investigate. This decision also delayed bringing the criminal cases against him to trial until he was elected to a second nonconsecutive term, after which existing policies of the Department of Justice prevented him from being prosecuted during his presidency.
Special Counsel Smith nonetheless issued a report on Jan. 7, 2025, explaining what indictments he had pursued related to Trump’s interference with election results and why he believed Trump would have been convicted had the cases gone to trial. The report, which presents a highly detailed account of the evidence against Trump that the counsel’s office had amassed, touches on a number of First Amendment issues.
Here are the charges against Trump by special counsel Jack Smith
The specific charges for which the grand jury found probable cause to indict Trump were: “conspiring to obstruct the government function of selecting and certifying the President of the United States, in violation of 18 U.S.C. § 371; obstructing and attempting to obstruct the official proceeding on January 6, 2021, in violation of 18 U.S.C. § 1512(c)(1); conspiring to obstruct the official proceeding, in violation of 18 U.S. C. § 1512(k); and conspiring to violate the federal rights of citizens to vote and have their votes counted, in violation of 18 U.S.C. § 241.” (p. 33 of Smith Report).
Smith documented how President Trump had continued to make false and inconsistent statements regarding electoral fraud even after losing case after case in the courts, after being told by his advisors that the claims were false, and after admitting privately that he had lost the election. Smith also documented how Trump has sought to replace actual state electoral certificates with false ones and how this impacted the voting rights of citizens.
Smith further argued that Trump could not defend himself against charges by claiming that his attorneys had advised him to act in that fashion in cases where they were conspiring with him. Smith cited a lower court decision that observed that “A criminal lawyer has no license to act as a lawyer-criminal” (p. 56).
Jack Smith distinguished free speech from illegal conduct
With attention to First Amendment issues, Smith indicated that that it was important not to criminalize conduct that he described simply as “hardscrabble politics” (p. 44). Looking specifically at the first charge, he indicated that the conspiracy requirements that had been outlined “ensured that common political conduct or political speech does not fall within the scope of the defraud clause” (p. 45).
Anticipating that Trump might raise other First Amendment concerns against his indictments, Smith quoted a court opinion that recognized that “the First Amendment ‘embodies our profound national commitment to the free exchange of ideas,’ and it bars the government from ‘restrict[ing] expression because of its message, its ideas, its subject matter, or its content’” (p. 59). Citing United States v. Williams (2008), Smith further observed that “it is well established that the First Amendment does not protect speech that is used as an instrument of a crime.” (p. 59).
Smith recognized Trump’s right “to speak publicly about the 2020 presidential election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” Smith believed, however, that the evidence was sufficient to show that Trump had not only made false statements, but that he had made them knowingly and in furtherance of a conspiracy to obstruct the election results. He observed that the district court reviewing the indictments explained that “Mr. Trump was ‘not being prosecuted for his ‘view’ on a political dispute; he [was] being prosecuted for acts constituting criminal conspiracy and obstruction of the electoral process.”
Smith explains why he decided against Insurrection Act charges
Smith not only explained the charges that he had filed, but one that he did not. Specifically, he decided not to pursue prosecution under the Insurrection Act, in connection with Trump’s actions and inactions during the attack on the U.S. Capitol Building on Jan. 6, 2021. That act provided for a fine or imprisonment for any individual who “incites, sets on foot, assists, or engages in a rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”
In justifying the decision not to pursue this indictment, Smith indicated that case law interpreting this act “are scarce and arose in contexts that provided little guidance regarding its potential application in this case” (p. 62). Although some courts had concluded that the actions of January 6 constituted an “insurrection,” there were difficulties in distinguishing an insurrection from a “riot,” and there were litigation risks involved in “employing this long-dormant statute” (p. 63). These difficulties were further compounded by the fact that Trump was president during the time of this event and that it did not therefore constitute an attempt at “overthrowing a sitting government” (p. 64).
Smith explains why he chose against ‘incitement’ charges
Smith observed that “There does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection” (p. 65). Although Smith believed that reasonable arguments could be made that Trump’s Ellipse Speech would fit under the standard for “incitement” that the Supreme Court had established in Brandenburg v. Ohio (1969), he noted that his office had not developed “direct evidence—such as an explicit admission or communication with co-conspirators—of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6” (p. 66).
Justifications for indictments
In justifying Smith’s thwarted attempts to prosecute Trump, Smith argued that he believed these efforts served “a substantial federal interest”; that Trump was not subject to effective prosecutions by other jurisdictions for the crimes Smith was investigating; and that there was not “an adequate non-criminal alternative to prosecution” (p. 68).
Much as Special Counsel Robert Mueller had done in his report summarizing his investigation of possible Russian interference in the 2016 presidential election, Smith observed that his report “should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person” (p. 68).
Speech and Debate Clause
In summarizing his investigation, Smith did address problems that had arisen under the Speech and Debate Clause in Article I, Section 6 of the U.S. Constitution that prohibited members of Congress from being questioned about their speech or debate within that body.
Vice-president Mike Pence had invoked this privilege in connection with his role as president of the Senate. Smith noted that the U.S. Court for the District of Columbia had concluded that this clause shielded Pence’s testimony in two areas, namely (1) Mr. Pence’s drafting and recitation of the statement he made on the floor of the Senate on January 6; and (2) internal advice from Mr. Pence’s staff about the scope of his authority on January 6” (p. 111). Pence had not appealed this ruling.
Smith addressed Trump’s threats against witnesses, others during the case
Smith also identified the problem that he and others faced with respect to threats and harassment. He noted that Trump has used his power as president and his access to social media to threaten witnesses as when he posted on Truth Social “IF YOU GO AFTER ME, I’M COMING AFTER YOU” (p. 113) and to issue threats directed specifically to prosecutors, judges, their staffs, their family members, and to poll workers. Smith observed that, in issuing a number of gag orders restricting these comments, the D.C. Circuit of Appeals had sought to balance “the freedom of speech guaranteed by the First Amendment” against the necessity “to ensure the fair and orderly administration of justice in criminal cases” (p. 114).
Smith also explored issues related to presidential immunity that had hindered the prosecution.
Smith did not release to the public a second volume of his report detailing charges that Trump retained highly classified documents largely because cases against two co-conspirators are still active.
Smith clearly believes that Trump was guilty of a number of serious crimes related to election interference and that he would have been convicted had Trump been tried for these offenses prior to his reelection.
If Smith is correct, then Trump’s success in delaying the implementation of justice resulted in justice being denied to the American public.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.