The Big Lie and January 6

The Washington Post has an overview of where things currently stand with the House’s select committee investigating the January 6 insurrection. The Post says this committee’s investigation is supposed to be the “ultimate arbiter” of what happened that day. Maybe, but I think the DOJ investigation and, where appropriate, prosecutions are an important dimension to establishing both truth and accountability for the wrongdoing.

In this regard, I wonder about the applicability of a particular federal statute, 18 U.S.C. 371, to the Big Lie and what it led to on January 6. This is the statute that criminalizes fraud against the United States and which the Mueller probe used against Russian disinformation aiming to subvert America’s electoral processes. This type of use received federal-court approval, at least in principle, in U.S. v. Concord Management, 347 F.Supp.3d 38 (D.D.C. 2018).

Ordinarily, I’m very wary of efforts to criminalize political speech, but intentional dishonesty designed to subvert the official procedures of electoral democracy might be a justifiable exception. The goal of the Big Lie was, and continues to be, to prevent the United States and its government to get the benefit of the 2020 election according to its honest results. In particular, the “stop the steal” component of the Big Lie, seeking to disrupt the lawful process of the January 6 joint session of Congress, could be seen as intentional dishonesty aiming to defraud the United States of the proper functioning of the Electoral College procedures of the Twelfth Amendment and the Electoral Count Act.

The fact that Trump and his allies continue to perpetuate the Big Lie, including at his recent Arizona rally, weighs in my analysis of this issue. Insofar as the goal of the Big Lie, now six months after Biden’s inauguration, is to undermine the legitimacy of the Biden Administration in the minds of many Americans, and to make the functioning of government more difficult, one could argue that if the perpetrators of the Big Lie are being intentionally dishonest (knowing what they say to be untrue), then they are attempting to defraud the United States of the proper functioning of its lawful government.

There should be consequences forthe kind of Big Lie mendacity that Trump and his allies are inflicting on America. One reasonable question to pursue, it seems to me, is whether 18 U.S.C. 371 is an appropriate vehicle for the accountability that needs to occur. (Remember, in this context, that even if the bar to prosecuting political speech under the statute is extraordinarily high, the facts here still might warrant it. Trump has been been incessantly repeating the Big Lie despite knowing that his own Attorney General, Bill Barr, called it “bulls___.” This surely put Trump on notice of the falsity of the lies he was disseminating, and would seem to make his speech beyond the protection of the First Amendment according to the “reckless disregard of the truth” standard in the Court’s cases, including New York Times v. Sullivan and Garrison v. Louisiana. Also, the Alvarez “stolen valor” case distinguished fraud statutes from the scope of its holding and therefore offers no protection for potential prosecution of knowing or reckless dishonesty under a fraud statute, like 18 U.S.C. 371.)

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