There’s an old saying: “Don’t beat a dead horse.” But Democrats never tire of flogging Donald Trump. Special Counsel Jack Smith participated in a dead horse beating by bringing his second indictment against the former president, this time in federal court in Washington, D.C. It’s the third Trump indictment in four months, with a fourth likely to come in Georgia at any time.

This most recent set of charges, Smith’s second indictment of Trump, has profound implications for freedom of speech and any person asking for a recount after an election. The indictment and the media portray what Trump has done as illegal and a first in American history.

Neither is true.

They’ve ascribed meaning to his words, as they did in his first impeachment, but that meaning isn’t there. This indictment is easy to dismantle.

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The latest Trump indictment should begin and end in its second and third paragraphs.

Paragraph two of the indictment states, “The Defendant spreads lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false.”

Paragraph three states, “The Defendant 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. He was entitled to formally challenge the results of the election through lawful and appropriate means, such as seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”

Paragraph three recognizes the right to freedom of speech guaranteed in the First Amendment of the United States Constitution. This paragraph grants that it doesn’t matter if Trump was lying, even if he knew he was lying.

Most of the 45 pages ignore paragraph three and revert to paragraph two.

Throughout his presidency, I often disapproved of Trump’s behavior, never more so than after losing the 2020 election. It’s why I wrote a column recently urging Republican primary voters to listen for somebody with Trump’s policy agenda but without his drama and baggage, as the debates begin later this month. While I believe it’s in the Party’s (and the country’s) best interest to move past Trump, it’s not a legal matter.

If a jury convicts Trump on this, where does that leave future candidates who choose to contest any result? Did Al Gore also commit conspiracy to defraud the United States following the 2000 election when he challenged the results in Florida and didn’t concede for 36 days?

Did Stacey Abrams commit conspiracy to defraud the state of Georgia when she refused to concede the 2018 Governor’s race in Georgia?

The indictment relies heavily on proving that Trump knew he was lying about winning the election and the fraud claims. It lists numerous occasions when allies, members of Trump’s staff, and members of his inner circle told him that various claims were wrong, false, or incorrect. I would have told Trump the same thing.

However, the indictment fails to show a single instance where Trump agrees with any of those people or concedes that he is making false statements. If Trump disagrees and believes he should keep fighting until the last minute, he is guilty of a crime. That’s what the indictment says. Consider the implications.

Even if we yield, we suspect that even as narcissistic as Trump is, he had to know. Is he guilty of a crime? Consider a few other cases.

During his first debate with Trump, Biden said 50 former national intelligence officials said the Hunter laptop story was Russian disinformation. It became bigger news than the original New York Post report. Biden knew this wasn’t true as much as Trump knew what he said about the election results was false. The 50 national intelligence folks had signed a letter that never claimed what Biden said. Team Biden political operatives and supporters, likely including Antony Blinken (who has denied it), whom Biden would nominate as Secretary of State, peddled the letter.

Biden has a long history of — call it what it is — lying.

The Democrats’ hatred of Trump is causing them to beat a dead horse.

Biden’s first presidential campaign, in 1988, crumbled in a matter of weeks when he lied about his academic record and pilfered the life story of a Member of the British Parliament.

From the creepy hair-sniffing stuff to his bragging about getting a prosecutor in Ukraine fired or he wouldn’t release funds (something Democrats impeached Trump for based on what they knew he meant), and every lie since old Joe’s been a public figure (being arrested when he went to see Nelson Mandela comes to mind).

There’s mounting evidence of corruption, from the “Big Guy’s ten percent” to accusations of taking bribes as Vice President, which the FBI is playing way too cute to be reassuring to anybody except those willing to overlook anything Biden does.

The claims that Joe doesn’t know anything about Hunter’s business dealings in places, coincidentally, where he was actively involved (China, Ukraine, and Romania) aren’t credible. Hunter hitches a ride on Air Force 2. Other times, he just stops by to meet and say hi to some of Hunter’s overseas buddies. We know of at least one voice message Joe left for Hunter mentioning business. Democrats say all this doesn’t prove a thing.

What we’ve learned about Joe and Hunter Biden means that either Joe is completely senile (something Democrats maintain he isn’t), he’s too stupid to serve as president, or he is lying. If a Republican says something, Democrats call it a lie; if Biden says it, they call it an “exaggeration” or “misstatement.”

Biden lies as much and is corrupt as Trump — no more, no less.

Another President provides more tangible proof:

In 1998, Bill Clinton famously said, “I did not have sexual relations with that woman…” The country learned there was incontrovertible evidence on a blue dress. Mr. Clinton certainly knew he was lying. If a jury convicts Trump of this charge — because he knew he was lying — then it was right to impeach Clinton, and he should have been convicted during his impeachment trial.

The indictment also makes a claim (one the media has frequently repeated) regarding fraudulent or fake slates of electors, and continues by asserting that Trump tried to get Pence to use authority that he knew he did not legally have to reject and accept electors. Democrats and the media are promoting these false narratives.

In October 2020, weeks before the election, the National Constitution Center in Philadelphia had several podcasts on the most contentious elections in U.S. History. Specifically, on Oct. 13, the Constitution Center held one on the election of 1876. Rutherford Hayes eventually prevailed two days before Inauguration Day. The country was on the verge of martial law and a second civil war.

The morning after the election, Samuel Tilden had 184 of the 185 electoral votes needed, with Hayes at 166. Nineteen electoral votes from former Confederate states (Florida, Louisiana, and South Carolina) were in dispute. Republicans still controlled those states under Reconstruction, and Democrats accused them of fraud.

Democrats controlled the House, and Republicans controlled the Senate. There were multiple elector slates for the three contested states and potentially others. The podcast details the potential ways in which the slate would prevail. When the House and Senate disagree on the rightful set of electors, guess what one of the potential tiebreakers is? The President of the Senate (the Vice President). It’s never been done and may not be the most preferred method, but it’s in Section 3 USC Section 15.

In 2021, there wasn’t an alternative set of electors for the House and Senate to disagree on. Therefore, it would never have been possible to put it in Mike Pence’s hands.

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The House met, followed by a joint session of the House and Senate on March 1, 1877. In the podcast, they say it was the craziest House session in American history. Granted, that was before Jan. 6, 2021. They continue by saying that newspapers of the day report Members getting their revolvers out, clearing the galleries because they were afraid of gunshots, and calling out the sergeant in arms to quell a riot.

Almost everything that happened after the 2020 election and January 2021 has happened before.

These aren’t my opinions. These are the words of leading legal minds on election law, and their public comments, were recorded before the election — at the Constitution Center, no less.

The podcast features Franita Tolson of USC Law, Edward Foley of Ohio State Law, Michael Morley of Florida State University College of Law, and National Constitution Center President and CEO Jeffrey Rosen.

Listen to the podcast and learn how badly Democrats and the media have deceived the public.

The indictment includes another claim repeated about Trump’s efforts to change the result of Georgia’s popular vote. The indictment has mischaracterized Trump’s phone call with Georgia Secretary of State Brad Raffensperger. Trump asked Raffensperger to “find” 11,780 votes. Indeed, after three recounts, Biden’s margin dropped from over 14,000 to 11,780 — a margin of 0.2 percent.

Synonyms for find include discover, detect, identify, and locate. 

Find is not a synonym for create, fabricate, manufacture, make up, cheat, or steal, none of which Trump asked Raffensperger to do, and all of which would be illegal.

Democrats have the fantastic ability to prosecute Trump for what they know he meant, but they have no idea what Biden meant when he met with Hunter’s overseas friends. They also didn’t decode his father-to-son voice message.

Trump did take papers, documents, and records from the White House. Even then, that indictment overreaches by making unproven claims. We have no idea what Trump actually showed people without security clearance at his Bedminster club. But explain why Biden had classified papers that should never have left a SCIF and documents from his time as Vice President scattered in various places, including his garage.

I don’t agree with or approve of how Trump has handled himself since losing the election. The Republican Party (and the country) would be better off nominating somebody with his agenda but not his baggage. Making free speech illegal, making challenges that jeopardize any candidate’s right to challenge an election result, and disregarding American history aren’t worth indicting a former U.S. president.

The Democrats’ hatred of Trump is causing them to beat a dead horse.

Andy Bloom is president of Andy Bloom Communications. He specializes in media training and political communications. He has programmed legendary stations including WIP, WPHT and WYSP/Philadelphia, KLSX, Los Angeles and WCCO Minneapolis. He was Vice President of Programming for Emmis International, Greater Media Inc. and Coleman Research. Andy also served as communications director for Rep. Michael R. Turner (R-Ohio). He can be reached by email at andy@andybloom.com or you can follow him on Twitter @AndyBloomCom.