A short observation in response to the commentary I am seeing out there about how Fani Willis is criminalizing speech. People are citing, for example, paragraphs in the new indictment that characterize as “overt acts” things like Trump sending a tweet. “OH SO NOW TWEETS ARE A CRIME?” go the ignorant responses.
No, they are overt acts. The law has always been very clear that overt acts in furtherance of a conspiracy might be innocent in and of themselves, but become an overt act in furtherance of the conspiracy when there is an agreement to commit a crime, and the otherwise innocent act is done in furtherance of that agreement.
So, if you buy a ski mask at a store, that is not a crime in and of itself. But if you have agreed to do a bank robbery, and tell a co-conspirator that you will now buy a ski mask to hide your face during the robbery, then buying the ski mask can be an overt act.
OH SO NOW BUYING A SKI MASK IS A CRIME?
These are the perils of listening to partisan morons.
P.S. I make a similar point in my newsletter from yesterday about the notion that Jack Smith is criminalizing speech:
[L]et’s say a disinterested observer who is not part of (or even coordinating with) the Trump campaign writes an op-ed in a newspaper, which advocates the following thesis: Trump really won the election, but Joe Biden stole it. So Trump should persuade state legislators to create alternate slates of electors that Congress can vote for on January 6, 2021. A disinterested citizen writing or publishing such an op-ed could not be prosecuted for that op-ed in the criminal courts. It would be protected by the First Amendment. This is true even though the op-ed is certifiably insane, and advocates a course of action without any basis in law or evidence.
But if Trump or his co-conspirators go around trying to pass off fraudulent claims of election irregularities, as part of a scheme to get public officials to throw out lawfully cast votes for a federal election, some of the same “speech” could end up forming an operative part of the fraudulent scheme. If, for example, Trump and his cronies are engaged in a plot to create a phony slate of electors, and he goes around making the same sorts of false claims as part of the scheme, then all of a sudden some of that “speech” might begin to look like part of a crime.
What we call “speech” is often part of the commission of a crime. It’s impossible to imagine fraud without “speech.” After all, fraud involves misrepresentations, which means “speech”—but not the sort of “speech” that is protected by the First Amendment.
There’s a great analogy in there from Walter Olson about the difference between using claims of stolen valor to boast (bad but legal) and using them to fraudulently obtain veterans’ benefits (bad and illegal).
If you have not read that newsletter, consider taking a look at it now.