The First Amendment grants broad berth to statements made by political candidates. Although candidates can be prosecuted for libelous statements they make about others, the bar the Supreme Court set in New York Times Co. v. Sullivan (1964) for proving libel is particularly high with respect to other public figures. It is essentially up to the voters to decide on the weight and credibility of non-libelous statements and allegations. Whether a presidential candidate will, if elected, bring about prosperity, involve the nation in foreign wars, or control immigration are largely matters of public opinion rather than statements of provable fact. However, statements made by a presidential candidate can also be limited within a court of law.
Current indictments against Trump
Among other cases and indictments, Donald Trump is being prosecuted in the District of Columbia on four criminal charges – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against the rights of individuals to vote and to have one’s vote counted. Currently, Trump is appealing to the Court of Appeals the decision of the U.S. District Court that he does not have presidential immunity for any and all criminal acts that he may have committed while still in office. The United States Supreme Court rejected special prosecutor Jack Smith’s bid to by-pass the Court of Appeals and have the Supreme Court immediately consider the issue.
Smith’s attempt to limit Trump’s speech at trial
As Smith awaits the decision of the Court of Appeals and possibly thereafter a decision by the Supreme Court, he has chosen to continue pressing forward with the original prosecution. As such, he has filed a preliminary motion (known as a motion in limine) before Judge Tanya Chutkan of the U.S. District Court in the District of Columbia. It requests that, if the trial does proceed, Trump and his counsel should be prevented from making specific statements and claims before the jury.
Smith notes that “the defense has repeatedly used rhetoric that may be acceptable on the campaign trail but not in a trial” and argues that the focus of the criminal trial should be “about the facts and the law, not politics.” In the case at hand, Smith is seeking to exclude defense allegations (some of which are already under consideration by the judge) that the prosecution against him is politically motivated, that it is “selective and vindictive,” that it is initiated by or coordinated with the Biden administration, that any violence that resulted on Jan. 6, 2021, was the result of poor law enforcement, that the violence was stirred by foreign sources, or that it was provoked by undercover agents.
Although Smith asserts that all such allegations are false and baseless, he does not seek to bar them from consideration by the judge or from public view. He does say that they should be barred from the ears of jurors in the courtroom, where the federal Rules of Evidence are designed to winnow truth from falsehood and narrowly focus the jury on the facts and circumstances surrounding the four indictments.
Relevant Rules of Evidence
Under federal Rules of Evidence 401 and 402, evidence that is irrelevant to the claims at issue in the case is not allowed to be presented to the jury. Relevant evidence is any evidence that tends to make a claim more or less probable. Although Donald Trump will likely argue that his claims of election interference and vindictive prosecution are relevant to his prosecution for conspiracy and obstruction related to the Jan. 6 events, Jack Smith is preemptively arguing that such claims can still be barred by the Rules of Evidence.
Smith relies heavily on Rule 403, which provides that “The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Smith alleges that, just because a claim can be made, that claim should not necessarily be presented to a jury, because it will unfairly prejudice the jury, confuse the actual issues at hand, and/or mislead the jury. In order to rely on a defense, the defendant must present a defense that has some sound basis in fact or in law; it cannot be mere speculation or conjecture, which would improperly prejudice a jury, which could not properly weigh the credible facts and separate them from baseless claims. In his motion, Smith alleges that Donald Trump’s claims of vindictive prosecution, political motivations and actions of the legal players and the current presidential administration could improperly inflame jurors through political rhetoric rather than allow them to focus on the guilt or innocence of Donald Trump the defendant in a criminal prosecution. He has argued that such claims are the result of hearsay evidence (which is not permitted under Rules of Evidence 800, et. seq.), anonymous sources, and allegations that cannot and have not previously been proven.
Similarly, Smith has asked the court to prevent Trump and his legal team from offering evidence of the potential political implications that a criminal conviction of Trump could create. In this way, Smith argues, a jury can focus on the question of guilt rather than deal with the weighty legal questions of the political impacts of their decision.
Smith is particularly dismissive of arguments the defense seeks to raise that any violence that resulted from Trump’s rhetoric was the result of law enforcement or foreign obstruction. He thus observed that “A bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him. A fraud defendant cannot claim to the jury that his victims should have known better than to fall for his scheme. And the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.” Smith was equally dismissive of unproven arguments that because hypothetical third parties might have been involved, the defendant was therefore not guilty.
Overall, Smith has asked the court preemptively to exclude all such theories, rhetoric, and allegations from Trump and his legal team that is hearsay evidence, speculative evidence, baseless and meritless evidence, and evidence that was obtained from individuals who were not eyewitnesses, or improper speculation with respect to motivations of others.
Although First Amendment freedoms, including the freedom of speech, apply to presidents and former presidents on the campaign trail, those rights can be limited through court procedures and rules of evidence that require the presentation of evidence to be narrowly tailored to the case and issues at hand.
John R. Vile is a professor of political science and dean of the University Honors College at Middle Tennessee State University. Virginia Tehrani practices law in Maryland, Virginia, and the District of Columbia and heads Tehrani Law LLC.
Eric Tucker, “Prosecutors seek to bar Trump from injecting politics into federal election interference trial.” Associated Press, Dec. 27, 2023
United States v. Donald J. Trump, “Government’s Motion in Limine. Criminal NO. 23-cr-257 (TSC). Filed on 12/17/2023
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