Former President Donald Trump’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 — 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.
“I’ll be the only politician in American history not allowed to speak because of our corrupt system,” he told the crowd.
John Lauro, a member of his legal team, argued on CNN earlier this week that Trump “had every right to advocate for his position” — including when he “asked” Pence to throw out Electoral College votes from certain states on January 6, 2021 — and that his advocacy is now “being criminalized.”
And Trump pushed back Tuesday on the notion that he knew he had lost the election but sought to overturn the results anyway — what may become a sticking point as prosecutors attempt to convince jurors that he had criminal intent.
Altogether, those statements suggest that Trump’s team appears to be currently pursuing three lines of legal defense: that his speech is protected under the First Amendment, that he didn’t order Pence to participate in an illegal scheme to stop the certification of the election results, and that he couldn’t have criminal intent if he didn’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 don’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. Here’s what they said.
Defense strategy 1: Trump’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. “They don’t want me to speak about a rigged election. They don’t want me to speak about it. I have freedom of speech, the First Amendment,” Trump said Tuesday.
But Smith argues that what Trump wasn’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 “Dishonesty, Fraud, and Deceit” 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 — those given to the Justice Department and the vice president — to stay in power. Finally, the indictment places at Trump’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? “You don’t have the First Amendment right to solicit a crime or to pressure other people to take illegal action,” said Cheryl Bader, a professor of criminal law at Fordham Law. “The speech here is both the evidence of the engineering of overturning the results, and it’s also the vehicle that he used to solicit the action.”
The question is whether Smith has the evidence to support the fact that Trump did exactly that, and we don’t yet have a full picture of how strong that evidence might be. Trump’s legal team only needs to plant enough doubt of that in jurors’ minds for them to acquit him. That’s why, at this early point in the case, the First Amendment defenses put forth by Trump “aren’t irrational or absurd and may have some basis,” said Kevin O’Brien, a former assistant US attorney in New York who specializes in white-collar criminal defense. “I don’t think the First Amendment argument is a bad argument at this stage.”
Defense strategy 2: Trump was “aspirational” in his request that Pence not certify the election results Lauro has argued that Trump was “aspirational” in asking (rather than ordering) Pence not to certify the election results. “What 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,” he told CNN.
What do legal experts think of this defense? That defense might seem a bit absurd on its face. But O’Brien said it’s “not a stupid claim” and “points out something interesting about the way Trump works” that may help protect him in this case. “Trump oftentimes doesn’t finish things. He sort of encourages people to go storming the Capitol, and then he gets in a limo and goes home,” O’Brien said. “He’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.”
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 Trump’s language as aspirational or a demand. “Remember, too, that Pence has stated that Trump told him that his problem was that he was just ‘too honest.’ That does not sound like an aspirational request, but a request to follow his direction,” 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 “find” the votes necessary for him to win the state. “I think we see a lot of very heavy-handed bullying conduct that cuts against this idea that his words were aspirational,” 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. Trump’s lawyers have suggested that he couldn’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: “There was never a second of any day that I didn’t believe that the election was rigged,” 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.
“Even 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,” O’Brien said.
Bader said that Smith is likely going to argue that Trump took illegal actions that “transcend what his personal motivation is for engaging in this conduct.” But he’s also likely going to argue that Trump is lying when he says he always believed that the election was stolen from him.
“There’s so much evidence that this was just a fantasy and that this was all pretext,” she said. “Smith 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 there’s nothing there, that the emperor has no clothes. And yet, Trump persisted and actually ramped up the pressure campaign.”
Catch-22!