Trump indictment targets tweets, calls; criminal fraud claims clash with First Amendment protections

Georgia’s sprawling criminal indictment of former President Donald Trump takes direct aim at his tweets and phone calls in his bid to overturn the 2020 presidential election results in the state.

Mr. Trump lost Georgia by 11,779 votes, and he says election irregularities were responsible for Joseph R. Biden’s victory in the state.

Mr. Trump made that case to Georgia officials and on social media, and the claim could land him in prison for more than two decades.

“These indictments cross the Rubicon of American politics, as we now indict the leading opponent of the administration and former president, for acting on the oldest tradition in America — contesting elections,” criminal defense lawyer Robert Barnes told The Washington Times.

He is among those who say Fulton County District Attorney Fani Willis’ prosecution of Mr. Trump attempts to criminalize free speech and the right to question and protest election results.

Other legal scholars argue that the First Amendment does not protect Mr. Trump from the charges of lying to public officials or pushing a fake electors scheme.

Mr. Trump has not stopped saying that Democrats rigged the Georgia election. He announced on social media that he will hold a Monday press conference to outline “A Large, Complex, Detailed but Irrefutable REPORT on the Presidential Election Fraud” in Georgia.

Mr. Trump’s claims of election fraud are central to Ms. Willis’ case.

The indictment cites as evidence many of Mr. Trump’s phone calls to election officials in Georgia and his numerous tweets that criticized Georgia lawmakers and election officials, in which he alleged fraudulent election activity such as ballot stuffing and votes counted from dead people.

“I don’t see how it’s legally possible to charge President Trump and his advisers for objecting to a presidential election,” said Mike Davis, a former counsel to the Senate Judiciary Committee and president of the Article III Project, which advocates for constitutionalist judges and the rule of law.

Mr. Davis and other legal experts who criticized the Georgia indictments said Mr. Trump’s actions are shielded from criminal prosecution partly because he was serving as president at the time.

“That is core political speech either protected by immunity in his official capacity or the First Amendment in his personal capacity,” Mr. Davis said.

Republican lawmakers mocked parts of the indictment that listed Mr. Trump’s tweets as “overt” acts in a conspiracy to overturn the election.

“They indicted Trump for tweeting,” Rep. Jim Banks, Indiana Republican, posted on X, the site formerly known as Twitter.

One of Mr. Trump’s tweets called on his followers to tune into cable news networks airing a Georgia lawmakers’ hearing about the election in December 2020.

“Check it out,” Trump tweeted, describing it as “the Georgia election overturn” hearing.

His tweet also called on Georgia’s Republican governor, Brian Kemp, to resign.

“He’s an obstructionist who refuses to admit that we won Georgia, BIG! Also won the other swing states,” Mr. Trump tweeted.

Rep. Thomas Tiffany, Wisconsin Republican, compared the criminalization of Mr. Trump’s tweets to the effort by former intelligence officials to discredit the politically damaging information found on Hunter Biden’s discarded laptop ahead of the 2020 election.

“If telling people to turn on their TV is an illegal ‘conspiracy,’ what is it called when a group of ‘intelligence officials’ coordinate with a political campaign to falsely claim that Hunter Biden’s laptop is ‘Russian disinformation?’” he posted on X.

The central part of the indictment charges Mr. Trump and his advisers under Georgia’s broad racketeering law, known as RICO.

The Racketeer Influenced and Corrupt Organizations Act was created to prosecute mobsters, but in the case against Mr. Trump and his 18 co-defendants, it’s aimed at their efforts to overturn the election in Fulton County and elsewhere.

The indictment claims the defendants operated as “a criminal organization” and “conspired and endeavored to conduct and participate in a criminal enterprise.”

To make the case, the indictment accuses Mr. Trump and former White House Chief of Staff Mark Meadows of committing the felony offense of making more than a dozen false statements and writings to a group of top Georgia officials that included Secretary of State Brad Raffensperger.

Ms. Willis accused Mr. Trump and Mr. Meadows of claiming that thousands of dead people had voted in the election and thousands more not on the voter registration list had cast ballots. The false claims alleged by Ms. Willis include Mr. Trump and his associates telling officials that up to 300,000 ballots were “dropped mysteriously into the rolls” in Georgia’s presidential election.

The indictment also nabbed Mr. Trump for “unlawfully soliciting” Mr. Raffensperger “to engage in conduct constituting the felony offense of violation of oath by public officer” by asking him to change the election results.

This charge is based on Mr. Trump’s phone call to Mr. Raffensperger on Jan. 2, 2021, in which he told him, “I just want to find 11,780 votes, which is one more than we have, because we won the state.”

Mr. Trump has defended the call as “perfect” and said it concerned “widespread election fraud in Georgia.”

Mr. Davis said the indictment of Mr. Trump and his former advisers for their efforts to contest Georgia’s results “sends a very chilling effect to Americans that they can’t raise questions about elections. It’s now a crime.”

Georgia State University College of Law professor Eric Segall said the First Amendment won’t protect Mr. Trump from all of the charges, particularly those involving the slate of alternative electors Mr. Trump pushed for in his unsuccessful effort to prevent Congress from certifying Mr. Biden’s victory.

“Free speech doesn’t protect you if the speech you are uttering is criminal,” Mr. Segall told The Times. “You can’t lie to public officials. You have free speech but you don’t have the right to go to a court or to Congress or wherever and lie, and that’s what they’re accused of doing.”

Mr. Trump’s ongoing claims of election fraud were shot down Tuesday by Mr. Kemp on social media.

“The 2020 election in Georgia was not stolen,” Mr. Kemp posted on X. “For nearly three years now, anyone with evidence of fraud has failed to come forward — under oath — and prove anything in a court of law. Our elections in Georgia are secure, accessible and fair and will continue to be as long as I am governor.”