Former President Donald Trumpā€™s legal defense against federal criminal charges for trying to overturn the 2020 election is beginning to take shape.

During a speech in New Hampshire Tuesday, Trump argued, as his lawyers have in recent days, that his statements about the election were constitutionally protected speech. He claimed that his First Amendment rights are under attack ā€” not just because he was indicted in connection to his repeated lies that the election had been stolen from him, but also because prosecutors are seeking a protective order preventing him from speaking publicly about evidence revealed as part of the discovery process in the case.

ā€œIā€™ll be the only politician in American history not allowed to speak because of our corrupt system,ā€ he told the crowd.

John Lauro, a member of his legal team, argued on CNN earlier this week that Trump ā€œhad every right to advocate for his positionā€ ā€” including when he ā€œaskedā€ Pence to throw out Electoral College votes from certain states on January 6, 2021 ā€” and that his advocacy is now ā€œbeing criminalized.ā€

And Trump pushed back Tuesday on the notion that he knew he had lost the election but sought to overturn the results anyway ā€” what may become a sticking point as prosecutors attempt to convince jurors that he had criminal intent.

Altogether, those statements suggest that Trumpā€™s team appears to be currently pursuing three lines of legal defense: that his speech is protected under the First Amendment, that he didnā€™t order Pence to participate in an illegal scheme to stop the certification of the election results, and that he couldnā€™t have criminal intent if he didnā€™t truly understand he had lost. It might be too early to tell whether those defenses will prove enough to acquit Trump. And we still donā€™t know the full breadth of the evidence that Justice Department special counsel Jack Smith has in his possession, though many legal experts say the indictment is well-drafted and the most serious of the three levied against Trump so far. We asked legal experts how strong they think these three defense strategies are. Hereā€™s what they said.

Defense strategy 1: Trumpā€™s statements about election fraud were protected as free speech under the First Amendment Smith acknowledges in the indictment that Trump had every right under the First Amendment to protest the results of the election, as the former president and his lawyers have claimed. ā€œThey donā€™t want me to speak about a rigged election. They donā€™t want me to speak about it. I have freedom of speech, the First Amendment,ā€ Trump said Tuesday.

But Smith argues that what Trump wasnā€™t allowed to do was urge others to form an illegal plan to undermine the results.

The indictment describes that plan as involving a prolonged pressure and influence campaign that targeted state politicians in Wisconsin, Pennsylvania, Michigan, Georgia, and Arizona. When no politician would help him overturn the election, the indictment says Trump went on to use ā€œDishonesty, Fraud, and Deceitā€ to assemble a slate of unlawful Electoral College electors in seven states, and that he and his allies lied to many electors to get them to go along with the plan. Then, Trump tried to use the powers of the executive branch ā€” those given to the Justice Department and the vice president ā€” to stay in power. Finally, the indictment places at Trumpā€™s feet the violence of January 6 and a plan to stop the certification of the vote.

All of those actions go far beyond simply protesting the results.

What do legal experts think of this defense? ā€œYou donā€™t have the First Amendment right to solicit a crime or to pressure other people to take illegal action,ā€ said Cheryl Bader, a professor of criminal law at Fordham Law. ā€œThe speech here is both the evidence of the engineering of overturning the results, and itā€™s also the vehicle that he used to solicit the action.ā€

The question is whether Smith has the evidence to support the fact that Trump did exactly that, and we donā€™t yet have a full picture of how strong that evidence might be. Trumpā€™s legal team only needs to plant enough doubt of that in jurorsā€™ minds for them to acquit him. Thatā€™s why, at this early point in the case, the First Amendment defenses put forth by Trump ā€œarenā€™t irrational or absurd and may have some basis,ā€ said Kevin Oā€™Brien, a former assistant US attorney in New York who specializes in white-collar criminal defense. ā€œI donā€™t think the First Amendment argument is a bad argument at this stage.ā€

Defense strategy 2: Trump was ā€œaspirationalā€ in his request that Pence not certify the election results Lauro has argued that Trump was ā€œaspirationalā€ in asking (rather than ordering) Pence not to certify the election results. ā€œWhat President Trump did not do is direct Vice President Pence to do anything. He asked him in an aspirational way. Asking is covered by the First Amendment,ā€ he told CNN.

What do legal experts think of this defense? That defense might seem a bit absurd on its face. But Oā€™Brien said itā€™s ā€œnot a stupid claimā€ and ā€œpoints out something interesting about the way Trump worksā€ that may help protect him in this case. ā€œTrump oftentimes doesnā€™t finish things. He sort of encourages people to go storming the Capitol, and then he gets in a limo and goes home,ā€ Oā€™Brien said. ā€œHeā€™s never out front. He never has the courage of his convictions, if he has any convictions. He has other people doing the dirty work. And at some point, he just walks away.ā€

At the same time, John C. Coffee, a law professor at Columbia University, pointed out that Pence is likely to testify as to whether he understood Trumpā€™s language as aspirational or a demand. ā€œRemember, too, that Pence has stated that Trump told him that his problem was that he was just ā€˜too honest.ā€™ That does not sound like an aspirational request, but a request to follow his direction,ā€ he said.

Coffee also noted that there were other points where Trump seemed to explicitly demand that fellow Republicans join his cause, including when he pressured officials in Georgia to ā€œfindā€ the votes necessary for him to win the state. ā€œI think we see a lot of very heavy-handed bullying conduct that cuts against this idea that his words were aspirational,ā€ Bader said. Defense strategy 3: Trump always believed that the election was fraudulent To convict Trump, prosecutors will need to show that Trump had criminal intent. Trumpā€™s lawyers have suggested that he couldnā€™t have criminal intent because he was reacting to what he believed was legitimate election fraud, despite many people around him telling him otherwise.

Trump has maintained that he believes the election was rigged against him: ā€œThere was never a second of any day that I didnā€™t believe that the election was rigged,ā€ he told the crowd Tuesday.

What do legal experts think of this defense? Legal experts said that prosecutors may not need to necessarily prove that Trump knew he lost the election, only that he knew he was using possibly unlawful means to reach the end he believed was right: another four years in the White House.

ā€œEven if he believed he had won the election and it had been stolen from him, if he then went out and formulated a plan to prevent the legitimately elected electors of various states from voting and having the results certified, that would probably satisfy the intent standard,ā€ Oā€™Brien said.

Bader said that Smith is likely going to argue that Trump took illegal actions that ā€œtranscend what his personal motivation is for engaging in this conduct.ā€ But heā€™s also likely going to argue that Trump is lying when he says he always believed that the election was stolen from him.

ā€œThereā€™s so much evidence that this was just a fantasy and that this was all pretext,ā€ she said. ā€œSmith is going to focus on the evidence of all the instances where advisers, staffers, court decisions, intelligence agencies, the Department of Justice are all telling him that thereā€™s nothing there, that the emperor has no clothes. And yet, Trump persisted and actually ramped up the pressure campaign.ā€

  • JillyB@beehaw.org
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    1 year ago

    Iā€™m wondering how it can be a normal trial. Every potential juror will likely have some strong opinions going into the trial.

    • Andy@slrpnk.net
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      1 year ago

      This may sound crazy or naive, but I think people like us (who read this kind of article and discuss it online) can sometimes underestimate the number of reasonable, non-political jurors.

      Sure, everyone knows who Trump is. Many of them probably voted for or against him. But even In Washington DC I think that out of millions of people, there are thousands of independent voters who arenā€™t that politically motivated. Finding people like this is what the jury selection is for. Once you remove people who state outright that they have prejudged the trial, you may still have people who try to conceal a partisan lean, but the attorneys on both sides will be looking closely to drop anyone who has attended a protest or has photos online in a politically messaged hat, and eventually I think they can absolutely identify a few dozen people who would say, ā€˜Do I have an opinion of the guy? Yeah, I think he did some stuff I like and didnā€™t like as president, but I didnā€™t feel strongly enough to vote in 2020, and Iā€™m willing to hear both sides and try to give each a fair consideration.ā€™

      And thatā€™s all you really need for a fair trial, imo.