Brazil adopted a radically different approach than the United States to an authoritarian head of state’s effort to cling onto power by fomenting an insurrection fueled by election lies.
First, the nation’s Superior Electoral Court banned Jair Bolsonaro from holding public office for eight years, finding that he abused his power by making false and unfounded claims about Brazil’s electronic voting system. Then, Bolsonaro was successfully prosecuted and sentenced to 27 years imprisonment for plotting a coup d’etat.
The provocative premise of Andrew Weissmann’s new book “Liar’s Kingdom: How to Stop Trump’s Deceit and Save America” is that punishing election lies isn’t incompatible with the land of the First Amendment — or an option only available to foreign democracies.
Adopting a global and domestic perspective, Weissmann lays out his argument through personal reflections and accessible explanations of U.S. law and foreign precedent. He notes that the United States already criminalizes or otherwise punishes various forms of intentional lying, drawing from his own experience of prosecuting Enron’s former CEO Ken Lay. Along the way, Weissmann discusses defamation law, former Special Counsel Jack Smith’s election subversion prosecution of Donald Trump, and the Supreme Court’s precedent concerning the Stolen Valor Act.
Brainstorming possible solutions to election-related lies, Weissmann drafted a hypothetical Truth in Elections Act that would operate as a civil statute:
“Anyone who knowingly and willfully makes a false, fictitious or fraudulent statement or representation about the election results or process in any federal election, with an intent to cast doubt on the integrity of the results or process, will have committed a civil offense for which disqualification from elected office may be imposed for up to 8 years. To be found liable for this offense, proof must be established beyond a reasonable doubt. A person found liable hereunder may take an immediate appeal from the decision.
The nod to the Brazilian system is clear through the eight-year disqualification, but the book illustrates how the proposal is grounded in U.S. law and precedent.
During our 52-minute conversation, Andrew Weissmann gets candid about the family and personal history that went into the book, his conversations with a German judge who presided over that country’s ban on Holocaust denial, and how the type of hypothetical statutes he is proposing could be abused by Acting Attorney General Todd Blanche or others.
He also explains why he has faith in the U.S. legal system to weed out abusive prosecutions under such laws and believes the cost of refusing to police election lies is higher.
Watch the conversation in full at the top of this newsletter, and order a copy of the book here.
