Four Defenses Trump May Try
Now that Donald Trump has been indicted for multiple conspiracies, his lawyer, John Lauro is (hopefully for him)
trying to think of how to defend him. That won't be easy but plenty of other people are throwing out ideas—but
also arguments Special Counsel Jack Smith will use to poke holes in them. Here are
four possible approaches
Lauro could take.
- The "free speech" defense: One approach is to claim the Constitution guarantees Trump the right
to say anything he wants to, including lies about how he won the election. There is no law saying you can't lie to
crowds or on television. However, this is a weak defense, as the indictment specifically states that Trump had every
right to say he won the election. He is not being charged with lying about that. He is being charged with conspiring with six other
people to take actions to subvert the election. The First Amendment does not guarantee you the right to work with a
group of people to sign up fake electors who will sign fraudulent election certificates. The exact wording of the First
Amendment is "Congress shall make no law ... abridging the freedom of speech..." Congress was not planning to make any
such law so the First Amendment is completely moot here.
- The "My lawyer said it was OK" defense: Suppose you are caught robbing a bank and you
tell the judge: "The bank wouldn't give me the money I deserve and my lawyer told me I could just rob the bank to get
it." Does that get you off the hook? We recommend that you don't try that at home. There are times when following clear
advice from a lawyer on a borderline area might leave a jury with the feeling that the defendant operated in good faith.
This isn't one of them. If Trump claims that his lawyer, John Eastman, told him getting the legislatures to appoint fake
electors was legal, Smith is going to call up witnesses like former White House Counsel Pat Cipollone, who will testify
that he and a dozen other lawyers told Trump that Eastman was crazy. A jury is likely to decide that when Trump's
hand-picked White House counsel and many state Republican officials told him that he lost, cherry picking one crackpot
lawyer and believing him against all the others simply means Trump was actively trying to avoid the truth. Consciously
trying to avoid hearing the truth isn't a defense.
- The "I really believed it" defense:
Some of the crimes of which Trump is accused require corrupt intent, that is, that he knew he was lying. That can be hard to
prove because it depends on what was in Trump's mind. But Smith can call up many witnesses, including Mark Meadows and
Mike Pence, who will testify that they told Trump point-blank that he lost and it was over. There are also a few witnesses who
heard Trump admit in private that he lost but he wanted to try declaring he'd won anyway. If Lauro goes for this defense, where the state
of Trump's mind is key, then Smith is going to want to put Trump on the witness stand and cross-examine him. Lauro knows
that would be a disaster, but Trump is so confident in his ability to handle anyone that he might agree. If he does, Smith
will make mincemeat of him. If Trump takes the stand and pleads the Fifth Amendment on every question, what will the jury
- The "I didn't make any money on it" defense: In a recent case about fraud, the Supreme
Court ruled that under a certain statute, criminal fraud requires that the person committing the fraud has to profit
from it. Trump could argue that he didn't profit from trying to overturn the election. Smith would counter this with:
(1) four more years of being president would get you $1.6 million in salary so you most definitely had a financial
incentive and (2) the Supreme Court case about fraud referred to a completely different statute.
All four defenses are far-fetched and Trump is not going to have a friendly judge or jury in D.C. Also, Smith may have already lined
up witnesses who will counter every claim Trump could make. And this is before the likes of John Eastman, Sidney Powell, and
Rudy Giuliani get indicted and have to decide if they want to save their own necks or Trump's. They may not flip, of course,
hoping that Trump wins in 2024 and pardons them. But with Trump, loyalty is a one-way street. He is very unlikely to
pardon any of them early in a second term because that would cause a firestorm that could lead to a massive blue wave
in 2026 and possibly more impeachments. He might issue pardons on the last day of his term, but he would be 82 then, and
Eastman, et al. would be taking a chance that someone who lives a lifestyle as unhealthy as Trump will even make it to
Jan. 20, 2029. (V)
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