Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Shortly after special counsel Jack Smith unveiled four new criminal charges against former president Donald Trump — all arising out of Trump’s failed efforts to overturn his defeat in the 2020 election — one of Trump’s lawyers revealed one of the legal arguments he plans to use to defend the former president.

“This is an attack on free speech and political advocacy,” Trump attorney John Lauro told CNN Tuesday evening. In a separate appearance on Fox News, Lauro claimed that Trump is being prosecuted for “what he believed in and the policies and the political speech that he carried out as president.”

Lauro, in other words, appears to be laying the groundwork for an audacious First Amendment defense. His argument appears to be that, even if Smith proves all the facts laid out in the recent indictment — which alleges that Trump pressured officials throughout the federal and state governments to change vote counts, appoint fake members of the Electoral College, and otherwise tamper with the 2020 election’s results — Trump’s actions were all political speech protected by the First Amendment.

But Lauro is wrong.

There are at least two reasons Trump’s alleged actions are not protected speech. One is that Smith repeatedly accuses...

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