Outline of Trump's profile against an orange background with the word "indictment"

Andrea Austria / Media Matters

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Right-wing media’s talking points about Trump’s indictment for fake electors plot have little basis in reality

Here are the facts

In response to Donald Trump’s federal indictment for trying to overturn the results of the 2020 election, right-wing media have embarked on a smear campaign against the entire investigation, spreading misleading and baseless myths to obscure the nature of the charges and the evidence being presented against the disgraced former president. 

Since the indictment was filed, Trump’s lawyers and right-wing media have offered flailing defenses and pro-Trump spin, as well as falsehoods about the charges.

  • MYTH: Trump was indicted for believing the election was stolen, which violates his free speech rights.

    Right-wing media figures have claimed that Trump was indicted for believing that the election was stolen and suggested that the charges represent a criminalization of free speech rights — baseless claims that the indictment prebuts. 

    • Fox host Greg Gutfeld said the indictment is “criminalizing thoughts and it’s criminalizing speech.” He defended Trump’s actions by arguing that “you have every right to think an election might be rigged or fixed." [Fox News, The Five, 8/1/23]
    • On Hannity, former Trump adviser Stephen Miller complained that “free speech,” and the “Constitution itself” are “at stake.” He called the indictment “the legal equivalent of the French guillotine, the reign of terror,” and “a mob mentality to take out Donald Trump.” [Fox News, Hannity, 8/1/23]
    • Fox anchor Maria Bartiromo suggested that Trump’s crime was “saying that he thought that the election was stolen.” Bartiromo cited Fox legal analyst Jonathan Turley’s claim that the indictment lacks legitimacy, stating, “A similar sentiment talked about this being free speech, so what's the charge? What's the crime? Him saying that he thought that the election was stolen: That's the crime.” [Fox Business, Mornings with Maria Bartiromo, 8/2/23]
    • Right-wing influencer Greg Price posted on social media that “Jack Smith's indictment is nothing but a criminalization of political speech.” He added that, “In the 3rd paragraph, he says President Trump ‘had a right like every American to speak publicly about the election and even to claim falsely that he had won.’ But apparently he's indicting him for it anyway.” [Twitter/X, 8/1/23]
    • Fox News contributor Katie Pavlich called the indictment the “criminalization … of disinformation and misinformation.” She also argued that “the left believes that you should go to prison for saying things.” [Fox Business Network, The Bottom Line, 8/1/23]
    • Fox prime-time host Laura Ingraham argued that the indictment was a violation of Trump’s right to free speech. Ingraham quoted the indictment to note that “the defendant had a right, like every American, to speak publicly about the election” and that Trump had the right “even to claim falsely there had been an outcome-determinative fraud during the election and that he had won.” Ingraham then argued, “So they concede that he had the right to have a different opinion. But, what? So they throw that in there to try to protect themselves, Bret, but then they violate what they claim they are still protecting.” [Fox News, The Ingraham Angle, 8/1/23]

    FACT: Trump was indicted for his actions following the 2020 election and leading up to January 6, not for spreading lies about voter fraud.

    • The first pages of the indictment carefully acknowledged Trump’s First Amendment protections, while emphasizing that the charges relate to alleged criminal conduct and actions unrelated to free speech. The second page of the indictment notes that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” It goes on to explain that Trump was entitled to, and did, “formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures,” but it also alleges that Trump also “pursued unlawful means of discounting legitimate votes and subverting the election results.”
    • While Trump’s spoken words and social media posts are used as evidence in the indictment, that evidence is used to support the motive for his actions. As noted by legal experts, “Trump is being prosecuted for his deeds, not his words,” and while Trump had the right to claim the election was stolen, he did not have the right to attempt to throw out the lawful results through a criminal conspiracy.
    • Trump’s own Attorney General Bill Barr has cast doubt on the claim that the indictment violates Trump’s First Amendment rights. On CBS’s Face the Nation, Barr stated that the indictment doesn’t rely on what Trump said, but on the actions he and his allies took to conspire to overturn the 2020 election results.  
  • MYTH: The indictment will allow Trump to litigate the 2020 election and prove claims of voter fraud.

    Some right-wing media figures have claimed that the indictment will provide the opportunity to relitigate claims of voter fraud in the 2020 election in federal court, which they argue will finally vindicate Trump. Such claims ignore the plethora of failed lawsuits from Trump and his team after the 2020 election. 

    • Fox News prime-time host Jesse Watters celebrated that the indictment is going to open the door to litigate the 2020 election. He claimed that it is “going to give Donald Trump the opportunity to relitigate the 2020 election in federal court. This is what Donald Trump's been dying to do for the last two and half years.” [Fox News, Jesse Watters Primetime, 8/1/23]
    • War Room host Steve Bannon also celebrated the chance to relitigate voter fraud claims. On his show, Bannon said: “I love this. I’m highly optimistic. We finally – we’ve wanted a chance and a platform to adjudicate the 2020, and their bloodlust to take down Trump, they gave it to us.” [Real America’s Voice, War Room, 8/2/23]
    • Conservative radio host and Washington Post columnist Hugh Hewitt claimed, “The former president will be subpoenaing everyone who had anything to do with the unusual circumstances of the 2020 election in order to prove his genuine suspicion of the process.” He added that Trump’s lawyer made it clear that they are “going to explore every corner of the 2020 election with former President Trump empowered to subpoena everyone who can help prove his innocence.” [Twitter/X, 8/2/23]
    • On Infowars, “QAnon Shaman” Jacob Chansley suggested the indictment will allow Trump to litigate the election. Chansley told Alex Jones: “Now all this evidence that the other courts and other states refused to hear can now be subpoenaed. It can now be made public evidence, so I kind of wonder a little bit. How much this is actually going to work out the way that the shadow government deep state wants it to.” [Infowars, The Alex Jones Show, 8/4/23]

    FACT: Trump’s claims of voter fraud were repeatedly litigated in the immediate aftermath of the 2020 election, and evidence for widespread voter fraud was never found. 

    • In reality, Trump’s claims of voter fraud were litigated dozens of times after the 2020 election – and proof for the claims was never found. Trump and his allies filed at least 62 lawsuits, many of which were dismissed due to the weak merits of the voter fraud allegations and for lack of standing. Additionally, many of Trump’s lawyers reneged on the sweeping public allegations once they found themselves in a court of law under oath, and ultimately none of allegations from Trump and his team were even remotely proven. Still, conservative media are largely ignoring the plethora of failed lawsuits and claiming the latest indictment will be their chance to litigate the election. 
    • Several Republican officials, including members of Trump’s own cabinet, have debunked his assertion that there was widespread fraud or inaccuracies during the 2020 election. Trump's Attorney General Bill Barr stated in a 2022 interview with The Associated Press that “to date, we have not seen fraud on a scale that could have affected a different outcome in the election.” Georgia’s Republican Secretary of State Brad Raffensperger also found no evidence of fraud during the 2020 election, and a prominent statehouse Republican in Pennsylvania conceded that he had no evidence to support his claims of fraud.
  • MYTH: In order to convict Trump, special counsel Jack Smith has to prove Trump knew he was lying about the 2020 election.

    Right-wing media figures are falsely claiming that a conviction of Trump will hinge on whether prosecutors can prove beyond a reasonable doubt that Trump knew he was lying about the 2020 election. Legal experts have disputed this claim, emphasizing that the charges are related to Trump’s actions. 

    • On a right-wing podcast, Trump lawyer Alina Habba asserted that in order to convict him, prosecutors have to prove that Trump knew he was lying about the 2020 election. Habba told right-wing influencer and serial plagiarist Benny Johnson: “We all know he still believes that 2020 was not a fair election. … I think that that, evidentiary-wise, is going to be very problematic. They have to get into his frame of mind and prove that he actually believed it to be false and was peddling a false statement.” [YouTube, The Benny Johnson Show, 8/4/23]
    • Fox News host Howard Kurtz published an article on the network’s website titled “Trump’s Jan. 6 indictment turns on whether he knowingly lied about the 2020 outcome.” The article argued that, “In short, if the Trump team can persuade a jury that he truly believed the election was hijacked, then he had every right to speak out and challenge the results.” [FoxNews.com, 8/3/23]
    • On a podcast for the opinion pages of The Wall Street Journal, editorial board member and podcast host Kim Strassel said it’s a “weakness” of the case that the prosecution has to prove Trump knew he was lying about the election. Strassel explained: “The problem with this is that you have to essentially know what Donald Trump's state of mind is. You have to claim that he knew that this was false and he did it anyway. And yeah, I think it's just difficult to make that argument, because what we don't have in this indictment is any evidence to the fact that he knew that what he was saying was untrue. It might've been wild, it might've been crazy. Let's all be clear, his behavior was deceitful and destructive, but that doesn't mean he didn't necessarily believe it. … That to me is the singular weakness of this case.” [The Wall Street Journal, Potomac Watch, 8/2/23]
    • Senior editorial staff at National Review wrote that the case requires prosecutors to “prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him.” The article added, “Good luck with that” because “hyperbole and even worse are protected political speech.” [National Review, 8/1/23]
    • On Fox & Friends, co-host Ainsley Earhardt claimed that Trump's prosecutors “have to prove that he actually believed that he lost, because you’re allowed to question an election.” Co-host Brian Kilmeade agreed, adding, “You can’t get inside his head!” [Mediaite, 8/2/23]

    FACT: Trump was indicted for his actions and a conviction will hinge on demonstrating that he “pursued unlawful means of discounting legitimate votes and subverting the election results.”

    • Legal experts have noted that evidence will lay out Trump’s allegedly unlawful actions and to secure a conviction, the government “does not need to prove motive.” The indictment brought against Trump notes that he “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud,” and that he could challenge the election through “lawful and appropriate means.” However, the indictment notes that Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.” Voting rights lawyer Marc Elias reportedly noted that for a criminal trial, the government “does not need to prove motive” and that the jury will actually receive an instruction stating that the government does not need to establish a motive for the defendant's alleged crimes. 
  • MYTH: Hawaii’s 1960 presidential election established a precedent for Trump selecting an alternate slate of electors.

    Right-wing media have resurrected a bogus talking point to justify Trump’s scheme, comparing Trump’s fake electors plot to the slate of Democratic electors during Hawaii’s narrow recount in the 1960 presidential election between Richard Nixon and John F. Kennedy.

    • Fox host Jesse Watters concluded that “it’s fine” for Trump to have attempted to select an alternate slate of electors because “they did it in Hawaii in 1960.” Watters was responding to guest Harold Ford Jr.’s assertion that “no president had done that before.” [Fox News, The Five, 8/3/23]
    • Breitbart senior editor-at-large Joel Pollak posted that “Kennedy used alternate electors in Hawaii in 1960. Trump only did what Democrats have done before.” He concluded that “all of these prosecutions are abuses of the justice system that will have long-term consequences for the country.” [Twitter/X, 7/18/23]
    • Turning Point USA founder Charlie Kirk claimed on his show that “alternate electors had legal precedent of being selected and chosen in the Kennedy/Nixon 1960 election.” He continued: “So they were trying to overthrow the government by sending in alternate electors? How does that work exactly? The Vice President could have sent it back to the states and the judge in 1960, who selected the alternate electors in the Hawaii controversy of Kennedy and Nixon, said explicitly if you had not have sent those electors it could not have been chosen. The judge said that in 1960. The 1960 election. If you had not have sent them, we would not have been able to select them.” [Real America’s Voice, The Charlie Kirk Show, 8/2/23]
    • Breitbart stated that JFK set a precedent for appointing alternate electors in 1960. The article claimed that “Democrats themselves used this strategy in the 1960 election, a close race between Vice President Richard Nixon (R) and Sen. John Kennedy (D-MA).” [Breitbart, 7/18/23]
    • Newsmax’s Greg Kelly played and agreed with a clip of Trump attorney John Lauro arguing that the Hawaii case set a precedent and asserted, “President Trump not only had the right to raise these questions, but he had a duty.” Kelly added that Lauro “is totally right about Hawaii in 1960, a very close election. They didn't know who won. So they sent two slates of electors to Washington, D.C. It has happened before, and you're allowed to talk about this stuff. This is still America and I am allowed to point out that I've got my own concerns about the fairness of the 2020 election.” [Newsmax, Greg Kelly Reports, 8/2/23]
    • The Gateway Pundit cited the Hawaii case to say there is “Legal Precedent” behind the “Alternate Electors” Trump appointed in 2020. The article claimed that “legal precedent shows not only did the alternate electors not violate law, they actually took proper Constitutional action in submitting their certificates amidst a contested election, according to the Judge’s ruling in the 1960 Hawaii election dispute between John F. Kennedy and Richard Nixon.” [The Gateway Pundit, 7/26/23]

    FACT: Hawaii’s duplicate electoral votes were the result of a closely contested election.

    • During the 1960 election, Hawaii’s recount and alternate electors were part of a court order as the state’s election was decided on a less than 1% margin. In contrast, several of the audits and recounts that Trump and his legal team pursued in 2020 were in states where Trump lost by over 10,000, and even in excess of 100,000, votes. 
    • The recount ultimately switched Hawaii in favor of Kennedy and then-Vice President Nixon accepted the result and certified the votes for Kennedy. There was no effort by Nixon, Kennedy, or any third parties to cast doubt on the process by which the original vote, the recount, or the certification had happened, unlike Trump’s efforts.
  • MYTH: Trump was merely soliciting “good-faith” legal advice from John Eastman and other apparent co-conspirators referenced in the indictment.

    Trump lawyer John Lauro has asserted that the former president was soliciting various legal opinions and acting under the advice of counsel — neither of which absolves Trump from culpability. Meanwhile, many of the attorneys Trump relied on in his effort to overturn the election results are facing civil penalties and disbarment for their role in promoting the unconstitutional scheme and for publically lying about election officials and equipment companies. Claremont Institute senior fellow John Eastman is seemingly described in the indictment as Trump's co-conspirator, responsible for devising the plan to halt the vice president's certification of the election results on January 6. 

    • On Fox News’s The Ingraham Angle, Eastman co-counsel Harvey Silverglate claimed that “Eastman’s advice was perfectly within the realm of good-faith legal advice.” He added that Eastman’s advice was “cutting edge” and “creative,” and doubled down by stating that “Eastman's advice was perfectly within the realm of good-faith legal advice. I don't have any doubt about it.” [Fox News, The Ingraham Angle, 8/2/23]
    • Earlier in the program, Ingraham stated that “Eastman made an argument that I wouldn't have made — but one I disagreed with at the time and disagree with now — but it's not a criminal act to have a novel legal theory about something. Even if it's about something like the electors and the Constitution.” She went on to erroneously evoke attorney-client privilege, adding that “advice given from an attorney used to be sacrosanct and it usually falls under the attorney-client privilege. But this is just another norm that the left will sacrifice on the altar of getting Trump.” [Fox News, The Ingraham Angle, 8/2/23]
    • The day before on The Ingraham Angle, Fox-generated presidential candidate Vivek Ramaswamy painted the co-conspirators as simply “lawyers who were giving good-faith legal advice to Trump,” adding that “the job of the lawyer is to actually provide legal advice. Trump was seeking legal advice.” [Fox News, The Ingraham Angle, 8/1/23]
    • Former Trump attorney Alan Dershowitz claimed that Trump’s impending trial “is a speech case, it’s also a case about right to counsel because they’re going after five of his lawyers, the unindicted co-conspirators, for advice that they gave.” He claimed that the indictment would have a chilling effect on people retaining lawyers, saying, “I’m afraid to say that this indictment may have the effect of encouraging people to take to the streets to protest elections because they’re told that if they go to the courts or go to Congress they will be indicted.” [OAN, One America News, 8/5/23]

    FACT: A lawyer advising their client to break the law does not make that act legal, and there is evidence that other attorneys told Trump his scheme was illegal. 

    • Several former White House lawyers who served under Trump testified to the House select committee that they had expressed concerns about the scheme's efficacy. Notably, former White House counsels Pat Cipollone and Eric Herschman testified that they were worried about Eastman's plan and were shut out of official discussions because of it. From the House select committee’s final report:

    Cipollone also testified that he was “sure [he] conveyed” his views. Indeed, other testimony from Cipollone indicates that Trump knew of Cipollone’s view and suggests that Trump purposely excluded Cipollone from the meeting with Pence and Pence’s General Counsel on January 4th.

    Likewise, Eric Herschmann, another White House lawyer, expressed the same understanding that Dr. Eastman’s plan “obviously made no sense” and “had no practical ability to work.”

    • If a lawyer advises their client to break the law, that advice does not make the act legal. Legal experts have pointed out that there are judicial avenues for candidates to pursue if they feel an election result was inaccurate, but Trump is accused of scheming to operate outside those legal processes. The American Bar Association, the administrative body that licenses lawyers to practice in the U.S., also maintains that lawyers are “personally answerable to the entire criminal law,” and the indictment alleges that Trump privately acknowledged that Sidney Powell — one of the lawyers who is reportedly one of the unindicted co-conspirators — sounded “crazy.”