The indictment against President Donald Trump handed down in a federal court in Washington, D.C., listed four counts: Conspiracy to Defraud the United States; Conspiracy to Obstruct an Official Proceeding; Obstruction of and Attempt to Obstruct an Official Proceeding; and Conspiracy Against Rights.

The Gag Order Controversy:

Special Counsel Jack Smith's request to gag Donald Trump from discussing evidence and criticizing government prosecutors has drawn criticism for its potential impact on the right to free speech. The major concerns raised by this move, questioning its implications for a fair and impartial trial. Prosecutors are required to show the defendant all evidence that will be presented in the trial, but Smith is refusing to do so until Trump is gagged. The entire request is contrary to a defendant’s rights to free speech and a public, impartial trial as the Supreme Court ruled in Press-Enterprise Co. v. Superior Court of California that the Constitution guarantees not only that trials are public but also that pre-trial proceedings are open to the public, except in the rare circumstance where nondisclosure is needed to protect the defendant. The gag order is all about protecting the defendant. Smith is trying to do the opposite — gag the defendant to protect the government’s case. And the government’s pre-trial public-relations campaign.

Challenging the Constitution:

The entire request is contrary to a defendant’s rights to free speech and a public, impartial trial as the Supreme Court ruled in Press-Enterprise Co. v. Superior Court of California that the Constitution guarantees not only that trials are public but also that pre-trial proceedings are open to the public, except in the rare circumstance where nondisclosure is needed to protect the defendant. The gag order is all about protecting the defendant. Smith is trying to do the opposite, gag the defendant to protect the government’s case. And the government’s pre-trial public-relations campaign. Smith's attempt to muzzle the defendant contradicts the principles enshrined in the US Constitution, which prioritize the rights of defendants and their ability to speak freely. The importance of open pre-trial proceedings and its subsequent public trial, as guaranteed by the Bill of Rights.

A Case against Free Speech:

Smith's attempt to criminalize certain speech, including alleged "disinformation," is seen as a departure from established legal precedents protecting free expression by attempting to fully criminalize alleged "disinformation" by seeking the incarceration of a politician on allegedly "false claims made during and after an election". Notably, United States v. Alvarez 2012 decision, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who lied about military decorations. The Supreme Court warned such criminalization “would give the government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”

The Radical Core of the Indictment:

The controversial nature of Special Counsel Jack Smith's deranged indictment is an authoritarian fantasy. The focus on protected speech and attempts to expand the scope of concepts like sedition and incitement to encompass statements protected by the First Amendment. The importance of protecting Americans' right to free speech and concerns about the potential implications of the Biden administration's actions requires persistent vigilance in safeguarding the principles of the Constitution and the rights of defendants in the pursuit of justice.