John Lauro is a trial lawyer who represents former President Donald Trump, in special counsel’s case. He promised in court on Thursday that he would “vigorously” address each and every issue in the matter, on behalf Mr. Trump, as well as the American people.
He will have his chance. Experts believe that Trump could raise a variety of legal defenses to federal charges of conspiring to defraud United States of bogus claims about election fraud and obstruct Congress’s counting of electoral ballots, as well as deprive Americans their rights.
Many veterans of federal criminal trials say that the most compelling arguments of the former president can be defeated, based upon the facts and evidence available and the current law. The former president may find it best to delay the trial in the hope of being elected president and then either ordering his attorney general not to prosecute or pardoning himself.
Here are some possible Trump defenses and their flaws.
Trump’s claims that the 2020 elections were stolen from him – and his attempts to vindicate these claims – amounted free speech and to legitimate political activity protected under the Constitution.
Lauro made this argument as he made his rounds on TV, telling Savannah Guthrie of “TODAY”, that the indictment by special counsel Jack Smith “basically makes it illegal to express your opinion and engage in political activities.”
Experts believe that this is the weakest argument Trump has ever made. It may even not be allowed to be brought before a jury. The majority of criminal frauds are committed through speech. And speech used to commit a crime remains a crime. This is according to Andrew Weissmann. He’s an NBC News legal expert and former federal prosecutor.
Weissmann stated that “the First Amendment issue was not a real problem — it is absurd.”
Trump acted on the advice from his lawyers and is therefore not responsible if this advice led him into breaking the law.
Lauro previewed the defense on “TODAY,” stating: “You have a right to trust and believe in counsel. John Eastman is one of the foremost constitutional scholars in the United States. He told President Trump that he could follow this protocol. It’s legal. That eliminates criminal intention.”
It is not an effective defense if the lawyer tells his client that robbing banks is legal. It can be used in cases of fraud crimes that are based on the intent of the defendant.
Former federal prosecutor John Fishwick, along with other experts, say that this could be a good defense for Trump. However it is complicated by the fact five out of six co-conspirators were not named in the indictment and identified by NBC News – including Eastman – but they were the lawyers who advised him most closely on a strategy he would use to claim fraud during the election. According to the government, their advice was part and parcel of a criminal plot.
Fishwick explained that advice from counsel is “an affirmative defense” — he will have to provide evidence. It will be a race between the government and the defense, where the government must show that some lawyers said this was illegal.
It’s a risky proposition for Trump because he would have to waive the attorney-client privilege and testify on his behalf, which is a dangerous proposition.
Ignoring the legal advice, Trump believed that his election had been stolen and lacked criminal intent to prove it.
Smith’s indictment reveals that Trump was repeatedly told by advisors that he lost the election, and that his claims of fraud were implausible. Bill Barr, the former Trump attorney general, said in a statement made this week: “At first, I wasn’t certain, but I now believe that he knew he had lost the election.” Many observers have noted the fact that the evidence is mixed and could be enough to raise reasonable doubts among jurors.
Brandon Fox, former federal prosecutor for California, said that it is difficult to get inside the head of anyone accused of fraud or corrupt acts. “What prosecutors will look for are Mr. Trump’s inconsistent statements, things he knew to be lies.”
He said that Trump’s alleged statement to Vice President Mike Pence during the Jan. 6, riot, was that Pence is “too honest” to stop the electoral votes count.
Chuck Rosenberg is a legal contributor for NBC News and a former federal prosecution. He said it would be difficult to convince a jury that Trump acted with good faith if he didn’t testify himself. Most legal experts think that Trump’s testimony could be very risky.
Recent Supreme Court decisions on fraud and other questions regarding the statutes in the case could undermine the prosecution’s legal theories.
The conservative National Review stated in an editorial on the indictment: “As the Supreme Court reiterated just a few week ago, fraud under federal criminal law is a scam to defraud victims of money or tangible assets. It is impeachable to use slanderous rhetoric when seeking to keep a political office, but that’s not fraud.
According to this argument, the third conspiracy charged in the indictment – accusing Trump of defrauding United States through a campaign of lies regarding election fraud – is not legal.
The case in question was a “honest service” fraud under a separate statute. There is a long-standing precedent that fraud against the United States does not have to include a financial loss.
It’s still possible that the conservative Supreme Court will also take the opportunity to limit the scope of this fraud. The interpretations of other statutes in the case could also raise legal questions.
All of that being said, it is not uncommon for disagreements to arise in the legal system about how statutes should be used and interpreted. This would likely only occur on appeal, after a Trump conviction.