Jack Smith’s forty-five page indictment of former President Donald Trump might just help revive civics education in this country. The indictment offers a compelling lesson about the current American condition at a time when, as the Center for American Progress put it in a 2018 report on The State of Civics Education, “Civic knowledge and public engagement is at an all-time low.”
That report cites “a 2016 survey by the Annenberg Public Policy Center found that only 26 percent of Americans can name all three branches of government, which was a significant decline from previous years.” It also notes that “public trust in government is at only 18 percent and voter participation has reached its lowest point since 1996.”
The January 6 indictment won’t itself cure those problems. Indeed, it might even stoke the distrust and apathy that the Annenberg study identifies.
Even so, the indictment offers those of us who teach law and politics in liberal arts colleges a resource for exploring some key questions about America’s constitutional order.
Students reading the indictment can be invited to ask what role lying plays in our political life. And does the First Amendment protect lying and false statements?
More potential questions abound. How could Trump get so close to ending democracy in the United States? What institutional mechanisms let that happen, and what, in the end, stymied his efforts?
Why did numerous Trump loyalists stand up to the former president’s bullying rather than knuckle under and join his cabal? What attributes of their character, or of their official positions, enabled them to do so?
Those questions will inform what I do in my classes this semester, and raising them is why I want my students to read Trump’s latest indictment.
Next month I will start teaching two courses at Amherst College. One is a first-year seminar entitled “Secrets and Lies”; the other is a sophomore seminar entitled “The Death of American Democracy.”
Last Tuesday, Smith scrambled my already settled plans for those courses when he indicted Trump for crimes allegedly committed as part of his plan to remain in power after he lost the 2020 election. Now, having read that indictment, it seems clear that I will have to change those plans and work closely with his indictment if I want to be true to the subjects of my courses.
The document Smith produced will give my students a lesson in how one man used “the Big Lie” in an effort to end American democracy. It paints a vivid word picture of the unfolding of Trump’s multi-pronged post-election plot.
As I read it, the many warnings about threats to America’s system of government that we have been hearing ever since Trump arrived on the political scene came into sharper relief.
Smith succeeds in what Dennis Aftergut labels a “prosecutorial masterstroke.”
He offers page after page of vignettes of Oval Office meetings that were not devoted to doing the public’s business and discharging the president’s official duties, but instead were used to orchestrate a conspiracy to change the result of the 2020 election. The indictment also details the numerous calls and threats made by the former president and his cronies to state officials to get them to go along with that plan.
It documents the many times that Trump’s allies and subordinates told him in no uncertain terms that he had lost the election, only to have him ignore what they said and repeat in tweets, interviews, and at political rallies what he had every reason to know were lies.
Let’s look at three of the things in the indictment that I’ll want my students to consider this fall.
First, on page 2 Smith writes that “the Defendant had a right, like every other American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”
I don’t think that many of my students, or indeed many American citizens, have a clear idea about when and where false statements are protected under the First Amendment. The Trump indictment provides a jumping-off point for an exploration of that question.
As The Atlantic’s Garrett Epps explained, “Under U.S. law, many falsehoods—even some deliberate lies—receive the full protection of the First Amendment. That is true even though ‘there is no constitutional value in false statements of fact,’ as Justice Lewis Powell Jr. wrote for the Supreme Court in 1974.”
“Nonetheless,” Epps continued, “the Court has often refused to allow government to penalize speakers for mistakes, sloppy falsehoods, and lies. Political lies are strongly protected; but even private lies sometimes are as well.”
Or, as former Ninth Circuit Court of Appeals Judge Alex Kozinski observed, “Saints may always tell the truth, but for mortals living means lying…. It doesn’t matter whether we think that such lies are despicable or cause more harm than good…. Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression….”
“Americans,’’ Kozinski said, “tell between two and fifty lies each day. If all truthful speech is unprotected…we would all be made into criminals…. The First Amendment does not tolerate giving the government such power.”
Trump’s newest indictment also affords me an opportunity to discuss with my students the often misunderstood difference between protected speech and speech that occurs during, and in furtherance of, a criminal conspiracy. Indeed, it looks like Trump’s defense lawyers hope to convince the public that Smith’s indictment of Trump is an attack on free speech.
Beyond the issue of what lies are and are not protected by the First Amendment, the indictment spotlights the importance of federalism in this country’s electoral system. Commentators like law professor Richard Hasen have lamented that we do not have a single, centrally controlled electoral system and argued that Congress should, as Hasen wrote, “Nationalize our elections and impose professional nonpartisan administrators.”
But R. Doug Lewis, executive director of the National Association of Election Officials, explained why that is a bad idea. “America’s founders, who had lived under the tyranny of central control,” Lewis said, “determined that the best way to prevent autocratic control of elections was to make sure that the decisions were made at the state and local level. They so distrusted strong central control that they made it exceedingly difficult for the federal government to have a major function in the election process.”
He continued, “While that has led to a system that can differ from state to state, it has also meant that it is very difficult to steal or manipulate an election in the U.S. Because there are so many variations of election practices, it has the practical impact of protecting the integrity of elections. The value of that feature alone should not be underestimated.”
The indictment filed last week makes the wisdom of Lewis’s argument clear. Whatever federalism’s other drawbacks, the fact that Trump and his co-conspirators had to work state by state to try to reverse election results is one important reason that they did not prevail.
The last way the indictment will figure in my teaching this fall involves the story it tells about the many Republicans and Trump loyalists who refused to succumb to his bluster. They acted like what my Amherst colleague Catherine Sanderson has called “moral rebels.”
For example, the indictment tells the story of Arizona’s Republican House Speaker, Rusty Bowers, who spoke out publicly on December 4, 2020 after repeated attempts to convince him that a substantial number of non-citizens had voted in his state in violation of Arizona law. Bowers, the indictment notes, made it clear that “As a conservative Republican, I don’t like the results of the presidential election. I voted for President Trump and worked hard to reelect him. But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.”
“Under the laws that we wrote and voted upon,” he said, “Arizona voters choose who wins, and our system requires that their choice be respected.”
Appearing before the House January 6 Committee Bowers called what Trump tried to do a “tragic parody” and detailed the rancor, slander, and death threats that he and his family, like others who refused to do Trump’s bidding, received.
Elsewhere I described Bowers and others like him as “constitutional patriots.”
I want my students to learn about them and to understand what it means to be a moral rebel or a constitutional patriot.
In the end, my task in using the indictment in my teaching will be to help students see the grave damage that Trump did to American democracy but also appreciate that not all the problems of American democracy are his fault. They will not suddenly disappear if he is held accountable for the crimes the indictment describes. Like any important resource for civic education, what Smith and his colleagues produced offers crucial and disturbing insights into America’s political culture and constitutional system.
Their educational value will endure long after the courts have rendered their judgment about Trump’s criminality.
