Social media posts, mostly from conservative politicians and commentators, claim Donald Trump was indicted for exercising his freedom of speech after the 2020 US election, and that he has been “threatened” with the death penalty. Both claims are false; the former president was charged with — and has pleaded not guilty to — three counts of conspiracy and one count of obstruction, none of which meet the criteria for execution.
“Trump has been charged for practicing free speech & free thought by objecting to a dirty election,” says conservative influencer Benny Johnson in an August 1, 2023 post on Twitter, the platform recently rebranded as “X.”
The post accumulated tens of thousands of interactions. The title of a related video on Johnson’s YouTube page says: “Biden Indicts Trump For Practicing ‘Free Speech’ On January 6th.”
Some Republican politicians, including Congresswoman Marjorie Taylor Greene of Georgia and Congressman Dan Bishop of North Carolina, have promoted similar claims.
“He’s being indicted for saying the election was stolen,” Greene said in a video posted August 3, hours before Trump was arraigned at a federal courthouse in Washington.
The claims are inaccurate.
Trump was indicted August 1 by a grand jury on criminal charges that he conspired to overturn the results of the 2020 election and defraud the American people. Two days later, the former president pleaded not guilty.
The 77-year-old had already been charged in two other criminal cases, but his latest legal hurdles heighten the prospect of Trump being further embroiled in court proceedings as he campaigns to retake the White House by running again for president on November 5, 2024.
The indictment brought by Smith accuses Trump of conspiracy to defraud the United States and conspiracy to obstruct an official proceeding: the joint session of Congress held to certify Democrat Joe Biden’s election victory.
“Shortly after election day — which fell on November 3, 2020 — the defendant launched his criminal scheme,” says the 45-page indictment, handed down by a grand jury in Washington (archived here). “The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud.”
Smith told reporters on August 1 that the January 6, 2021 riot at the Capitol “was fueled by lies” from Trump “targeted at obstructing a bedrock function of the US government — the nation’s process of collecting, counting and certifying the results of the presidential election” (archived here).
The charges facing Trump do not specifically hinge on his claims of voter fraud in 2020, which have been repeatedly debunked:
- In count one, conspiracy to defraud the United States, the document alleges Trump conspired to “defeat the lawful federal government function by which the results of the presidential election are collected, counted and certified.”
- Counts two and three — conspiracy to obstruct an official proceeding and obstruction of, and attempt to obstruct, an official — stem from Trump’s efforts to impede the certification of the electoral vote in Congress.
- In count four, conspiracy against rights, the indictment alleges Trump conspired to “injure, oppress, threaten and intimidate” voters.
The document does not charge Trump for making false claims about election fraud. In fact, it notes the former president “had a right, like every American, to speak publicly about the election.”
“He was also entitled to formally challenge the results of the election through lawful and appropriate means,” the indictment says. “Indeed, in many cases, the defendant did pursue these methods of contesting the election results.”
However, the document notes that “shortly after election day, the defendant also pursued unlawful means of discounting legitimate votes and subverting the election results” — perpetrating “three criminal conspiracies.”
Trump has denied those allegations, telling reporters after his arraignment that the cases brought against him are “persecution of a political opponent.” On his social media platform Truth Social, Trump said: “The Radical Left wants to Criminalize Free Speech!”
Trump’s own former attorney general, William Barr, has dismissed the free speech argument.
“He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better,” Barr said August 2 on CNN. “But that does not protect you from entering into a conspiracy.”
Jonathan Entin, a professor emeritus and constitutional law expert at Case Western University, told AFP the indictment “makes clear that Trump has a First Amendment right to claim that the 2020 presidential election was corrupted by fraud, regardless of the accuracy of those claims.”
“The indictment specifies that Trump is being charged with engaging in action to overturn the election outcome,” Entin said in an August 4 email. “Many crimes involve the use of speech, but that does not mean that we have a First Amendment right to engage in fraud, extortion, blackmail or similar activities.”
Death penalty threat?
Following Trump’s indictment, some conservative influencers and websites also claimed Trump could face the death penalty for his alleged crimes.
“TRUMP Threatened w/ DEATH PENALTY OR 515 years in Prison,” says Elijah Schaffer, a conservative podcaster, on August 2 in an X post linking to a related video on Rumble.
Websites such as Breitbart took a similar angle, saying Trump could face “potential” execution.
The claims stem from the fourth count in the indictment brought by Smith: conspiracy against rights.
The Civil War-era statute was originally invoked against groups such as the Ku Klux Klan that sought to prevent newly freed African Americans from exercising rights granted by the Reconstruction Amendments. The law has since been used to prosecute a wider array of election subversion and civil rights cases.
Federal law says violating the statute is punishable by a fine or imprisonment of “not more than 10 years.” If the acts also result in death or include crimes such as kidnapping and aggravated sexual abuse, then the accused could be “imprisoned for any term of years or for life, or both, or may be sentenced to death,” according to the law (archived here).
That does not apply to Trump, according to Peter Carr, a spokesman for the special counsel’s office.
“That is not accurate,” he said of the claims circulating online. “The indictment does not contain the special findings required.”
Several people died during the January 6 attack on the Capitol, according to media coverage and a bipartisan Senate report (archived here). But David Alan Sklansky, faculty co-director of the Stanford Criminal Justice Center, said there are three reasons the death penalty “cannot be applied” in Trump’s case.
“First, the connection between the conduct charged in the indictment and the deaths that occurred as a result of the Capitol Hill riot is too attenuated to satisfy the legal requirement of causation,” he said in an August 4 email. “Second, under federal law … the death penalty can’t be applied unless the prosecutor has served notice of an intent to seek the death penalty, which the prosecutors haven’t done in this case and won’t do.”
Sklansky added that federal law restricts execution to cases in which the defendant “intentionally killed someone,” or some others in which a defendant engaged in violence knowing that it could be lethal.
“There is a narrow, possible exception applicable in narcotics cases, but this isn’t a narcotics case,” he concluded.
Trump faces a potential maximum prison time of 55 years for the charges brought by Smith, in addition to those included in past indictments in Florida and New York. US Magistrate Judge Moxila Upadhyaya said during Trump’s arraignment in Washington that the maximum penalty for the charge of conspiracy against rights is 10 years.
AFP has fact-checked other false and misleading claims about US politics here.
