After last week’s indictment of former President Donald Trump relating to the 2020 election, CNN declared that the charges were "personal" for President Joe Biden, who previously said Trump's words sounded like "sedition."
Of course, Trump was not charged with sedition or even seditious conspiracy. Nor was he charged with conspiracy to incitement or insurrection, the grounds for his second impeachment.
However, if Biden does view this case as personal, as CNN suggests, he might be right for the wrong reason. That’s because the case being constructed against Trump by Justice Department special counsel Jack Smith could prove a serious problem for Biden, too — particularly as the basis for a House impeachment inquiry.
The latest Trump indictment, based on little new evidence and even less established law, faces a major threshold challenge under the First Amendment. Smith is seeking to criminalize what constitutes disinformation, which not only runs against the grain of the First Amendment but also prior cases. That includes United States v. Alvarez, which overturned the conviction of a politician for knowingly lying about his military background.
The Justice Department acknowledges that the Constitution protects false statements made in political campaigns. Yet it maintains that Trump can be convicted for lying because he really did not believe what he said.
The problem is that the effect of these lies largely fueled the actions of third parties. If Trump were accused of using fraud for pecuniary gain or of lying to federal investigators, there would be no free-speech problem. The complaint, however, focuses on the lies rather than any larceny or standalone crime. It is diffuse in saying that raising doubts over the election undermined the value or results of voting. Previous challenges have been made to certification of presidential elections with little basis (including by Democrats) and even alternative sets of electors have been submitted without criminal charges.
This criminal intent is based on Trump being told by many people that the election was not stolen and he could not stop its certification. I was one of those who maintained that Trump was wrong on the election, Vice President Pence’s authority to void the results, and the Trump team’s challenges. However, Trump followed the advice of a second, albeit smaller, set of lawyers who told him there was a basis for challenging the election.
That is not a crime. It is, in my view, protected political speech. Presidents routinely lie on matters great and small. Many of those lies cost citizens dearly, from "keeping your doctor" under ObamaCare to losing your life in Vietnam. Criminalizing lies in campaigns because of the spread of disinformation or disorder is a slippery slope that vests unprecedented power in the Justice Department.
There is a wicked twist in all of this for Biden. The very controversial linchpin used against Trump could conceivably be used against Biden, particularly in the launching of an impeachment inquiry by House Republicans.
While third parties proceeded to take steps to challenge the election and offer alternative electors, Trump continued to publicly deny the election's legitimacy and failed to effectively call them back. He is accused of seeking out those who would legitimize or enable his political spin on his 2020 defeat.
Not dissimilarly, Biden has long been accused of knowing disregard for constitutional limitations as his administration has pushed unconstitutional measures. For example, Biden conceded that his own White House counsel and trusted legal advisers uniformly told him that renewing a national eviction moratorium would be unconstitutional — but he listened instead to a Harvard law professor who reportedly assured him he had the authority. His eviction-ban order was quickly found unconstitutional by the Supreme Court.
Far more serious are the accusations facing Biden over his response to a growing corruption scandal allegedly involving his son and others. It now seems clear that Biden has lied to the public for years on critical details of the scandal. Indeed, his denial of any knowledge or involvement in his son's overseas business deals go back to the 2020 presidential debate.
Biden also denied that Hunter Biden received any money from China, which the Washington Post now declares to be manifestly untrue. For years, Biden has allowed his staff, including White House officials, to repeat his denials while opposing any further investigation.
That is why guilt by implication or association, as employed by special counsel Smith against Trump, could be a dangerous legal standard for Joe Biden.
Hunter Biden's former friend and associate, Devon Archer, told House Oversight Committee investigators last week that they were indeed selling "the brand" and that Joe Biden was part of that brand.
Ironically, Rep. Dan Goldman (D-N.Y.) — who demolished Biden's defense in an earlier House hearing with two IRS agents — repeated the same blunder during Archer’s closed-door committee appearance. In the previous hearing, Goldman bizarrely raised the instance of Joe Biden going to a lunch at the Four Seasons with Hunter and his Chinese business associates.
In his own committee appearance, Archer was careful not to overstate his knowledge of demands made on then-Vice President Biden and denied personal knowledge of any. Yet Goldman refused to leave a good answer alone and plowed forward into the unknown. He noted that Archer had said they discussed “niceties” — “Where are you, how’s the weather, how’s the fishing?” — in more than 20 phone calls with the senior Biden in the presence of Hunter’s foreign business partners. Goldman pressed Archer to expand, and Archer did, stating: “They were calls to talk about the weather, and that was signal enough to be powerful."
In other words, the point was the call itself — the access — not the content of the calls.
Later, in a media interview, Archer reaffirmed that it is “categorically false” that Joe Biden had no role in or knowledge of his son’s business dealings, stating: "He was aware of Hunter’s business. He met with Hunter’s business partners.”
Archer also confirmed dinners long denied by Biden officials and the media. For example, prior reports of a 2015 dinner with Hunter's business associates directly contradicted the president's repeated denials of knowledge or involvement. A Biden 2020 campaign spokesman at the time insisted the story was false, and Politico reported that other officials also assured that it was all untrue; some suggested it was more "Russian disinformation.”
It turns out that denial also was a lie, because Archer confirmed that Biden "had dinner" with him and several others, including "Vadym P. from Burisma,” referring to an officer of a Ukrainian energy company. The senior Biden reportedly joined the dinner and engaged in discussions.
Biden surely knew his denials of knowledge and interactions were untrue, even as his aides misinformed the public and as congressional and federal investigations occurred.
Now, according to special counsel Smith, such knowing lies can be criminal matters, at least in the case of Donald Trump. For Congress, it could also trigger impeachment inquiries in the case of Joe Biden — and that would make this very personal indeed.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.