Defending former President Donald Trump by claiming that he was only exercising his “free speech” leading up to the January 6 attack is a losing legal strategy, according to William Barr, Trump’s former attorney general.

Trump on Thursday is expected to be arraigned in Washington, D.C., on federal felony charges related to the January 6 siege on the U.S. Capitol and attempts to overturn his 2020 election loss. The former president is also facing federal charges in his post-presidency retention of classified documents and charges in New York state accusing him of falsifying business records.

The former president’s defense attorney, John Lauro, said during a CNN interview on Tuesday night that the latest charges against Trump were an attack on his “free speech and political advocacy.” While the actual strategy of Trump’s defense remains unclear, legal experts have been divided on whether free speech is relevant.

Barr, who resigned from the Trump administration in December 2020 after refusing to back election fraud claims that he deemed to be “bulls***,” said during an interview with CNN’s Kaitlan Collins on Wednesday that an attempt to defend the former president on the basis of free speech rights outlined in the Constitution’s First Amendment would not be “a valid argument.”

Donald Trump William Barr Free Speech Republicans
Former President Donald Trump is pictured on Saturday in Erie, Pennsylvania. William Barr, Trump’s former attorney general, on Wednesday said that an attempt to defend the former president against January 6 charges on the basis of free speech rights would not be “valid.”
Jeff Swensen

“I really don’t think that’s a valid argument,” he said. “As the indictment says, they’re not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better.”

“But that does not protect you from entering into a conspiracy,” he continued. “All conspiracies involve speech, and all fraud involves speech. So, you know, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”

Newsweek reached out for comment to Lauro and Trump’s office via email on Wednesday.

The new indictment charges Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; conspiracy against rights; and obstruction of and attempt to obstruct an official proceeding. The former president has called the charges “fake.”

Although Barr said that he was not certain he would have “approved” of the indictment if still serving as attorney general, he also said that he did not “see a problem with the indictment” in a legal sense, calling it “legitimate.”

Trump continues to claim that President Joe Biden only won the 2020 election due to massive fraud—a claim that is in itself protected under the First Amendment, despite being false. The indictment explicitly acknowledges Trump’s free speech rights, while accusing him of taking illegal actions in 2020 and early 2021.

Some January 6 defendants have already unsuccessfully attempted to mount free speech defenses while standing trial for directly participating in the attack on the Capitol.

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