Regarding the indictment, Mr. Barr said that though “it’s certainly a challenging case,” he doesn’t believe it “runs afoul of the First Amendment.”
“This involved a situation where the states had already made the official and authoritative determination as to who won in those states, and they sent the votes and certified them to Congress,” he said.
“The allegation essentially by the government is that, at that point, the president conspired, entered into a plan, a scheme that involved a lot of deceit, the object of which was to erase those votes, to nullify those lawful votes, disenfranchise people.”
“What the indictment says is the stuff that they were spouting, they knew was wrong and false. This is not a question of what his [Mr. Trump] subjective idea was as to whether he won or lost. They’re saying—what you were saying consistently, the stuff you were spouting, you knew was wrong,” Mr. Barr stated.
“You have to remember, a conspiracy crime is completed at the time it’s agreed to, and the first steps are taken. That’s it. That’s when the crime is complete from a prosecutor’s point of view.”
Mr. Barr has previously made similar comments about the First Amendment. Trump’s attorneys insist that the former president was only exercising his First Amendment rights when questioning the legitimacy of the 2020 election results.
“As the indictment says, they are not attacking his First Amendment right. He can say whatever he wants, he can even lie. He can even tell people that the election was stolen when he knew better,” Mr. Barr said.
“But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech. So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”
“Everything involves his (Trump) exercise of free speech. And not only First Amendment free speech but also the First Amendment right to petition the government for a redress of grievances.”
“The way you protest an election is to come up with an ultimate slate of electors. That was done in 1960, that was done in the Tilden-Hayes election, that’s been done throughout history. A court in Hawaii said that’s the right way to do it,” he said.
Indictment Lies, Political Persecution
In his interview, Mr. Dershowitz pointed out that the Trump indictment “is based on lies, and the indictment itself contains a blatant lie by Jack Smith.”“He describes the speech (Jan. 6 Trump speech) in the indictment and deliberately and willfully leaves out the key words of the speech, namely, the president told his people to protest peacefully and patriotically. By leaving out those words, it’s a lie by omission. And under the standards set out in the indictment, Jack Smith could be indicted.”
“The Ku Klux Klan statute says any people who conspire to deny somebody their constitutional rights is guilty of a crime. What if the Supreme Court ultimately rules, as distinguished from what Barr said, that everything that Trump didn’t say is protected by the First Amendment?”
“That would mean that Jack Smith tried to deny Trump his constitutional rights in this indictment,” Mr. Dershowitz pointed out.
“The government’s gonna have to prove beyond a reasonable doubt that Trump himself knew and believed that he had lost the election. I don’t think anybody who knows Trump thinks that that’s true. Trump talked himself into believing that he had won the election. And if that’s the case, then there’s no corrupt motive or intent.”
“The leading candidate against the incumbent president should never be prosecuted by the attorney general of the president unless the case against him is overwhelming and beyond any dispute. The Nixon standard is what I call it,” he said.
On Aug. 3, Mr. Trump pleaded not guilty to the four charges of the indictment. The next hearing on the case is scheduled for Aug. 28.
“This is the persecution of the person that’s leading by very, very substantial numbers in the Republican primary and leading Biden by a lot,” he said. “So if you can’t beat him, you persecute him, or you prosecute him. We can’t let this happen in America.”
