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Of first amendment defense. do you think there is such a defense to be had here? >> no. you know, the first amendment does not apply to conspiracies to violate the law. and smith tries to show in the indictment itself that he's not going after freedom of speech. so, i think that will fail. i think the problem is in the proof of intent beyond a reasonable doubt. and smith, in fact, makes the point -- i don't know if he intended to do it, but he makes it in paragraph 54 of the indictment, where he talks about the scheme to set up fake electors. just read one sentence, if i may. talking about the...

May declare that in the election case in the january 6th case, they are clearly gonna make some sort of first amendment defense. do you think there is such a defense to be had here? no, you know? the first amendment does not apply to conspiracies to violate the law. and smith tries to show in the indictment itself that he is not going after freedom of speech. so i think that that will fail. i think the problem is in the proof of intent beyond a reasonable doubt. and smith in fact makes a point, i don't know if he intended to do, it but he makes it in paragraph if the four of the indictment, wh...

Electoral college so this isn't just about a couple of comments that donald trump made at a rally or rudy giuliani's claims. >> thank you for that reporting. we'll see you in a little bit. let's bring back in our experts. jack smith knew that was going to be the defense counsel's argument, that's why he gets to page 2, the defendant has every right to speak publicly about the election, even to claim falsely there had been fraud. >> it's kind of rare to anticipate a defense like that. >> the first thing. >> exactly. i think it's an important thing. here's my problem with first amendment defense...

Election. and undermine the peaceful transfer of power. >> an indictment was unsealed charging donald j. trump for conspiring to defraud the united states, disenfrom shiez voters. >> reporter: federal prosecutors write, the defendant spread lies that there had been outcome determine native fraud and that he won. these claims were false. this morning, we're getting our first sense of trump's defense. >> focusing on the fact that what we have now is an administration that has criminalized the free speech of a prior administration during the time the that there's a political election going on, th...

Speech as an american citizen, never mind whether he was president or not it could be anybody, it could be a homeless person, you don't get to violate people's first amendment rights no matter who you are. this isn't the first time acted like an unethical lawyer. should be the last. >> your reaction? >> very fiery rude j giuliani, i think we're going to hear the first amendment defense from donald trump's team and also from several of these unindicted co-con co-conspirators. they're not just taking issue with the things he said, they're taking issue with his actions, pressuring officials in ar...