Unassigned

Jack Smith Trampled Trump's First Amendment Rights... Says the Washington Post?! Wait, WHAT?!

Aaron Walker
Aaron Walker  |  3:30 PM on January 09, 2026

Yes, we could hardly believe it when we read it, but it is real and it is pretty spectacular:

Advertisement

This was an unsigned editorial, meaning this was the Washington Post’s viewpoint as an institution. And the headline alone tells you that this is going to be damning:

Jack Smith would have blown a hole in the First Amendment

Of course, they are going to pretend that Jack Smith was a good guy who just got overenthusiastic in his pursuit of that big meany Trump. But still, even with that caveat, the piece absolute excoriates Smith:

Smith’s August 2023 Trump indictment focused on Trump’s repeated claims that the 2020 election was stolen in the run-up to the Capitol riot on Jan. 6, 2021. Put simply, the indictment accused Trump of lying so pervasively about the election that he committed criminal fraud.

The committee’s Republican majority, led by Chairman Jim Jordan (R-Ohio), pressed Smith on whether that theory of the case was constitutional: Wouldn’t Trump’s statements be protected by the First Amendment?

Smith replied: ‘Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment.’

That’s a bold claim by the prosecutor.

To break in for a moment, are we the only ones who thought of this meme just now?

Back to the article:

Political speech — including speech about elections, no matter how odious — is strongly protected by the First Amendment. It’s not unusual for politicians to take factual liberties. The main check on such misdirection is public scrutiny, not criminal prosecution.

Of course fraud is a crime. But that almost always involves dissembling for money, not political advantage. Smith’s attempt to distinguish speech that targets ‘a lawful government function’ doesn’t work. Most political speech is aimed at influencing government functions.

Smith might think his First Amendment exception applies only to brazen and destructive falsehoods like the ones Trump told after losing the 2020 election. But once an exception is created to the First Amendment, it will inevitably be exploited by prosecutors with different priorities. Imagine what kind of oppositional speech the Trump Justice Department would claim belongs in Smith’s unprotected category.

Smith also said he makes ‘no apologies’ for the gag order he tried to impose on Trump during the prosecution. The decision to criminally charge a leading presidential candidate meant the charges would feature in the 2024 campaign. Yet Smith fought to broadly limit Trump’s ability to criticize him or the prosecution in general, claiming such statements would interfere with the legal process.

He seemed unconcerned about interfering in the democratic process by seeking to muzzle a candidate for high office. Three appellate judges, all nominated by Democratic presidents, ruled that Smith’s proposed gag order infringed on Trump’s First Amendment rights. While some restrictions were appropriate, the appeals court said, Trump had to be able to rebuke his prosecutor — as a candidate and a defendant.

Recommended

'Utter Madness': Reps. Swalwell, Goldman Introduce Bill to Strip ICE Agents of Qualified Immunity
Brett T.
Advertisement

To break in again, not only is this excoriating Smith for trying to get such a gag order, but it was also implicitly excoriating Manhattan D.A. Bragg and Judge Merchan for actually putting one on Trump during the Manhattan case—a point regular readers will know this author has hit on repeatedly.

The other thing we want to highlight is the Washington Post is pretending that it is clear that Trump did lie about losing. Now, we won’t get into a discussion about whether or not Trump actually won. Let's say for the sake of argument that he lost. Still, if you sincerely believe in a thing that isn’t true, then it can’t be fraud to say it is true. Smith’s indictment against Trump was woefully short of any evidence that Trump knew his claims were false—assuming hypothetically they could prove it was false. So, it amounted to charging Trump with a crime because Smith disagreed with him. If you can be put through a criminal trial every time a prosecutor disagrees with you on a political topic, that is the end of the First Amendment. People understand that ‘the process is the punishment.’ Even if you win the case, just being tried will inflict significant costs, both financial or otherwise. Therefore, many people who sincerely have complaints that they wish the government to address will be afraid to bring them forth. It kind of undermines the First Amendment’s right to ‘petition the Government for a redress of grievances’ if the government can decide that your grievance is false and put you through legal hell for making it.

Meanwhile in the editorial, they decided to choose war:

The former special counsel apparently has no regrets about this heavy-handed approach, even though it failed legally and probably helped Trump win the 2024 election. Smith was a war-crimes prosecutor in the Hague before taking over the Trump investigations, and Europe’s protections for free speech are far weaker than America’s. Maybe he went native in the Netherlands.

Advertisement

(Emphasis added.) Seriously, that’s a ‘shots fired’ line, right there. And it is nice for the WaPo to officially acknowledge that free speech isn’t was well protected in Europe.

Finally:

Smith was earnest in his desire to punish Trump for trying to overturn an election, but he took a cavalier attitude toward constitutional safeguards — and that’s before getting into his subpoenas for the phone records of Republican members of Congress, including former House Speaker Kevin McCarthy. Any honest accounting of the Trump legal saga needs to reckon with this.

So, yes, they have to pretend that the orange man is bad and probably deserved most of what Smith was doing to him, even though they basically just admitted that two of the four indictments were unconstitutional, and, therefore, it was good that the Fani was spanked. They have to pretend the problem isn’t that Trump shouldn’t have been prosecuted, but that the next person will be abused under this approach, possibly by the bad orange man himself. But there is no question that they basically called out Jack Smith as being way out of line, and implicitly spanked the Fani.

We’ve been saying it for years, but its nice to have someone on the left acknowledge it.

That is a valid complaint. This is why you should read Twitchy and maybe even get a VIP subscription. We figure these things years before the legacy media!

Advertisement

He definitely disputed an election, hoping to achieve a different outcome. But there is nothing wrong with that—that is part of the democratic process. Part of that process is having a means to contest the results.

Exactly. People often say that Jack Smith was an independent prosecutor so the Biden Administration didn’t know what he would do. But that’s a bit like placing a starving wolf in the same pen as a sheep and pretending you don’t know what the wolf is going to do. Yes, the wolf is making an independent decision and you might be a little fuzzy on the details on what exactly the wolf will do. But don’t pretend you don’t know what is going to happen. One way or the other, the wolf will be eating mutton that night.

Actually, just calling for that alone, without action, or without meeting the stringent legal test for incitement, is not a crime.

Advertisement

And who decides it is a lie? It’s honestly amazing that he is effectively saying Trump should be able to prosecute his opponents if he has a factual disagreement with them.

Actually, Trump only said that on the subject of international relations, here:

So, what Trump said was not literally true, but a friend once made a good point to me: Trump should be taken seriously, not literally. For instance, Trump will say there is no crime in Washington, D.C. Obviously that is not true. You can never eliminate all crime. So, you can’t take Trump literally. But if you take him seriously, he is making the valid point that crime is down. 

Likewise, saying that the president has no limits in international relations but his or her morality isn’t literally accurate. But he’s really not far off from the truth. A president can probably get away with doing some pretty awful things if he or she wants to, which is why character is a significant factor when this author votes for president.

‘Saint Jane’ went on to post something we can’t publish without our own censorship. So, we will do a cut and paste rather than embed it:

BTW F—K your community rules. WaPo is unethical. This grotesque undemocratic unAmerican hit piece is proof.

That sounds like she couldn’t post a comment. Heh.

Advertisement

Interestingly, if you follow his link, you get a different, milder headline, but the same piece. We’re not sure why that is.

In any case, it really is a stunning excoriation of Jack Smith. It doesn’t go as far as we would, but even this much is remarkable. 

RELATED: ‘The Shadow Says It All, Bro!’ Man Caught in Womens’ Room at Planet Fitness Being ‘Master of His Domain’

Too Good to Check? Twitter/X Reacts to Reports That We Bombed Hugo Chávez’s Mausoleum

BREAKING: President Trump Announces That We Have Captured Nicolás Maduro (and His Wife)

Can Donald Trump Refuse to Follow an Unconstitutional Judicial Order? (A Deep Dive)

One ‘Weird Trick’ That Would Instantly Undermine the Political Power of Illegal Immigrants (and Democrats)

BREAKING: An NYT Interview With Biden Just Undermined Thousands of His Late Pardons (A Deep Dive)