Former President Donald Trump has frequently claimed that prosecuting him for his attempt to subvert the 2020 presidential election is illegitimate because all of the false claims that he made about the election and his efforts to strongarm officials into "finding" votes for him were protected by the First Amendment of the United States Constitution.
Special counsel Jack Smith did not address this First Amendment claim in recent court filings made last week, and a former Justice Department official thinks he knows why.
Former FBI Deputy Director Andy McCabe thinks Smith is waiting for Trump to attempt to make this argument in court before he definitively slaps it down.
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Speaking on the "Jack" podcast, legal analyst Allison Gill went through the history of Smith taking on Trump's claims of First Amendment protections for his actions after the 2020 election.
"Well, in previous filings, Jack Smith says that if Trump is arguing that he's covered by the First Amendment that means he's arguing as a private citizen because the First Amendment doesn't cover presidents. It protects citizens," said Gill. "But I didn't see that argument here."
In response to this observation, McCabe chimed in to say that he doubts that Smith has discarded this argument entirely.
"I think it's one of those things that he keeps in his pocket to see what Trump throws back at him in Trump's response, which could be in four weeks or nine weeks," said McCabe.
Gill then explained why making such an argument would backfire on Trump because it would be an acknowledgment that he was acting as a private citizen and not as president when he tried to push the Department of Justice to declare the election "corrupt," among other things.
"First Amendment doesn't protect the speech of the government," she said. "It curtails the government from infringing upon your speech as a private citizen."
