The celebration of our nation’s 250th anniversary should be a time of universal pride for the accomplishments of our country. For many in the current climate, however, that pride is tempered by a deep concern for the state of our democracy. I find myself asking how our country can best protect itself from political lies which undermine the voter’s confidence in free and fair elections. A potential answer to that question is provided by Andrew Weissmann in his recent book, [Liar’s Kingdom: How to Stop Trump’s Deceit and Save America](https://www.nyulawreview.org). Mr. Weissmann was a lead prosecutor in Robert Mueller’s investigation into election interference by Russia in the 2016 election. He is currently a professor at NYU Law School.
The question of whether there can be a legal remedy for political lies that are provable in court has been answered by other countries in the affirmative. In Brazil, ex-President Bolsonaro was barred from seeking election for eight years due to spreading lies about the country’s electoral system. Barring a politician from seeking office is a civil, rather than a criminal, remedy. Bolsonaro was also convicted criminally for plotting a coup to stay in power after losing the 2022 presidential election. [Trump’s reaction to these developments](https://www.npr.org) was to place 50% tariffs on Brazil and to criticize their legal system.
Some countries prohibit political candidates from holding office after a felony conviction. That is true in France, where Marine Le Pen was barred from office for five years after she was convicted of embezzlement. Many of our states, including Pennsylvania, also prohibit felons from holding public office. Trump’s conviction for committing 34 felonies would currently prohibit him from holding public office in those states.
In such states and countries, the law is used to protect democratic integrity. At the federal level in the United States, however, demonstrable political lies are currently protected by the First Amendment. Are political lies to the electorate worthy of free-speech protections? In other settings, lies are illegal and not protected by the First Amendment. Examples include corporate executives lying about financial matters; lying on a bank form; lying to Congress; or lying to a jury. Significantly, Trump has never been under oath when asserting that the 2020 election was “stolen” from him. His statements regarding the election have been made in open public settings where they are not subject to perjury laws.
Lies are also subject to defamation suits when made against a particular person or entity. Think of the [$787 million settlement by Fox News](https://www.npr.org) of the defamation suit by Dominion Voting Systems regarding alleged fraud in the 2020 election or the $150 million verdict against Rudy Guiliani in favor of two election workers in Georgia wrongly accused of tampering with election votes.
Weissmann makes the case for passing laws in our country that would bar a person from holding public office who intentionally lies about a material election issue – such as who won a presidential election. The law would require a knowing, willful and false statement about federal election results with an intent to cast doubt on the integrity of the results. Proof beyond a reasonable doubt would be required. If proven, the individual would be barred from elected office for up to 8 years. This is a civil penalty and, therefore, not subject to a Presidential pardon.
As we move toward the 2026 election, there will likely be ongoing verbal challenges to the integrity of our election system. Allegations that mail-in votes are corrupt, although some of those making the assertions vote by mail themselves. Assertions that certain elections are “rigged,” without offering proof to prove those assertions. Unsubstantiated allegations of rampant voter fraud. Continued assertions that President Trump won the 2020 election, despite many court rulings that the election was a free and fair election of President Biden. Fully one-third of our electorate believes Trump’s “Big Lie” about his loss in 2020, because it has been allowed to take root without legal accountability.
Political lies needlessly sow doubt among the electorate and undermine our democracy. If a corporate leader is not permitted to lie to shareholders about the financial state of a corporation, should a politician be permitted to intentionally lie about the integrity of our elections? Is that type of speech worthy of protection? In order to best protect the vibrancy of our democracy, we need to follow the examples of countries like Brazil and France by holding politicians accountable. It is within our power to insist it be done.
