“It’s like murdering babies!”
So said one lawyer defending the latest federal indictment of President Trump against the charge that it seeks to throw Trump in jail for exercising his First Amendment rights. Many legal experts argue that an indictment for criminal conspiracy cannot just be about First Amendment-protected activity. Others argue that a conspiracy may include all sorts of legally protected activity, like purchasing knives or driving to the scene of a crime, but conspiracy to murder babies is a crime because murder is a crime. (READ MORE: Trump’s Inferno: Part Two)
The anti-indictment experts are right. The others miss the point.
First, the legal basics: a criminal conspiracy comprises two parts: (1) an agreement among conspirators (2) to accomplish a criminal object. For any conspirator to be liable for a criminal conspiracy, at least one must also (3) commit an “overt act”— that is, do something — for the purpose of accomplishing the criminal end. The overt act need not be a crime in itself, and the criminal object need not ever have been accomplished.
You can’t be indicted without specific facts alleged. You can’t be sent to trial on an indictment that just says “you violated such and such federal law.” The indictment must say how. So a conspiracy indictment must do more than merely list a provision of a criminal statute as the object of a conspiracy. It must identify a specific result intended by the conspirators that is a crime. (READ MORE: Five Quick Things: What Really Brought About Trump’s Atlanta Indictment?)
So if the indictment alleges an agreement to murder babies at the Blackacre nursery, we imagine that a conspirator entered the nursery and murdered the babies. Would he have violated the federal murder statute? Yes. Is the conspiracy allegation thus sufficient? Yes.
As if by turning a dial, we figure out which act is the one that would push the intended result over the line into a crime. To zero in on exactly what is the alleged criminal object of the conspiracy, we imagine other results and ask the same questions.
Imagine that the conspirators knocked on the door of the Blackacre nursery. Would that have been a crime? No. Can a conspiracy indictment allege only that the conspirators agreed to knock on the door to see if anyone would answer? No. Would it make any difference if the indictment slapped the label of the federal murder statute onto those deficient factual allegations? No. (RELATED: Georgia Levels Yet Another Indictment Against Trump)
The criminal end and the alleged agreement have to line up. The indictment cannot be specific on the supposed crime but wishy-washy on the agreement. It cannot say, for example, that the agreement was for “challenging an election” but the criminal end was for “hacking voting machines.”
Now, apply the law to the indictment. What intended result does the Trump indictment allege to have been the criminal object of the Trump conspiracy?
The indictment concedes that lying alone is not a crime. It concedes that neither is contesting election procedures with lawsuits. The indictment instead appears to claim that those things together, combined with urging Vice President Pence to decline temporarily to count electoral votes, is the criminal object of the charged conspiracy. Pence is not alleged to have been part of the charged conspiracy — so the alleged agreement was among others just to urge Pence to decline to count the votes.
Whatever a criminal statute says, it cannot mean that it is illegal to do things the Constitution guarantees that you be allowed to do.
But is that like murdering babies in that it is an actual crime? Or is it like knocking on the door of the Blackacre nursery in that it is not? (RELATED: Fani Willis and the Corruption of Justice)
It’s like knocking on the door of the nursery because all the intended results are acts of political speech or political petition, which the Supreme Court repeatedly holds are at the core of the First Amendment so they can’t be illegal.
The dial, in other words, turns no farther than the First Amendment.
Whatever a criminal statute says, it cannot mean that it is illegal to do things the Constitution guarantees that you be allowed to do. That’s never illegal because it can’t be illegal. Not in America.
It could be a wholly different case had the indictment alleged that Trump agreed to have someone hack voting machines to change vote tallies. Although debatable, in that case it’d at least be plausible that Trump could be liable for that scheme by giving a political speech denying that voting machines could be hacked.
But, that’s not our case today because hacking voting machines is a crime and is not privileged by the Constitution.
Millions of Americans exercised their God-given rights to political speech and petition when they urged Vice President Pence to decline for a time to count electoral votes. They wanted state legislatures first to approve the atypical election procedures used in the 2020 election. All those millions can’t be sent to federal prison. Nor can President Trump. It’s not because the prisons are too small. It’s because the legal theory is too ludicrous.
Sean Ross Callaghan is an attorney, a tech entrepreneur, and a former federal law clerk. He served in the Treasury Department, the Justice Department, and in the D.C. Attorney General’s office as an Assistant Attorney General.