Trial lawyer John Lauro, who is representing former President Donald Trump in the special counsel’s election case, vowed in court Thursday to “vigorously address every single issue in this matter on behalf of Mr. Trump and on behalf of the American people.”
He will get his chance. Experts say Trump can raise a number of plausible legal defenses against the federal charges that he conspired to defraud the United States with bogus claims of election fraud, obstruct Congress in its counting of electoral votes and deprive Americans of their rights.
But many veterans of federal criminal cases say that each of the former president’s most viable arguments can be overcome, based on the known facts and evidence and the current state of the law. In the end, the former president’s best strategy may be to delay the trial and hope that he is elected president before it can begin, in which case he can either order his attorney general to drop the prosecution or attempt to pardon himself.
Here are some of Trump’s possible defenses, and their flaws:
Trump’s relentless claims that the 2020 election was stolen from him — and his efforts to vindicate those claims — amounted to free speech and legitimate political activity protected by the Constitution.
Lauro made that argument this week as he made the rounds on television, telling the “TODAY” show’s Savannah Guthrie that special counsel Jack Smith’s indictment is “basically making it criminal to state your position and to engage in political activity.”
Many experts believe this may be the weakest of Trump’s arguments, one that may not even be allowed to be presented in front of a jury. Most criminal frauds involve speech, and speech in the service of a crime is still a crime, said Andrew Weissmann, an NBC News legal contributor and former federal prosecutor who was lead prosecutor in Robert Mueller’s Russia investigation.
“The First Amendment issue is not a real issue — it’s absurd,” Weissmann said.
Trump relied on the advice of lawyers, and therefore isn’t responsible if that advice led him to break the law.
Lauro also previewed this defense on “TODAY,” saying: “You’re entitled to believe and trust advice of counsel. You have one of the leading constitutional scholars in the United States, John Eastman, say to President Trump, ‘This is a protocol that you can follow. It’s legal.’ That eliminates criminal intent.”
This is not a defense that works if a lawyer advises a client that robbing a bank is lawful. But when it comes to crimes of fraud that hinge on the defendant’s intent, it can apply.
Former federal prosecutor John Fishwick and other experts say this could be a promising defense for Trump, but it’s complicated by the fact that five of the six co-conspirators unnamed in the indictment but identified by NBC News — including Eastman — were the lawyers most deeply involved in advising him on a strategy to claim fraud in the election. So under the government’s theory, their advice was part of a criminal conspiracy.
Advice of counsel “is an affirmative defense — he’s going to have to establish evidence,” Fishwick said. “So it will be something of a horse race, with the government showing that some lawyers told him this was illegal, and the defense showing he got advice it was legal.”
But it’s risky for Trump, because it would mean having to waive attorney-client privilege, and possibly having to testify in his own defense — a dangerous proposition.
Leaving aside the legal advice, Trump genuinely believed that the election was stolen from him, and therefore lacked the criminal intent required to prove him guilty.
Smith’s indictment shows that Trump repeatedly was told by advisers that he had lost the election and that his fraud claims were implausible. Former Trump Attorney General Bill Barr said this week, “At first I wasn’t sure, but I have come to believe he knew well he lost the election.” But many observers have noted that the evidence on this is mixed, and may be uneven enough to create reasonable doubts in the minds of the jurors.
“Getting in the mind of any person who’s accused of fraud or committing corrupt acts is very difficult,” said Brandon Fox, a former federal prosecutor in California. “And what prosecutors are going to look to are inconsistent statements by Mr. Trump, things that he knew were lies.”
One compelling piece of evidence, he said, is Trump’s alleged comment to Vice President Mike Pence, as the Jan. 6 riot was unfolding, that Pence was “too honest,” to stop the electoral vote count.
Also, it’s hard to imagine a jury buying a defense that Trump acted in good faith without hearing on the stand from Trump himself, said Chuck Rosenberg, a former federal prosecutor and NBC News legal contributor. And most legal experts believe it could be extremely risky for Trump to testify.
Recent Supreme Court rulings on what constitutes fraud — and other questions about the statutes used in the case — could imperil the prosecution’s legal theory.
In an editorial about the indictment, the conservative National Review wrote: “As the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property. Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged.”
Under that argument, one of the three conspiracies charged in the indictment — accusing Trump of defrauding the United States by pushing a campaign of lies about election fraud — is not legally sound.
But the case question dealt with “honest services” fraud, under a different statute, and there is longstanding precedent that a fraud on the United States doesn’t have to involve a loss of money.
Still, it’s possible the conservative Supreme Court would take an opportunity to narrow the scope of that fraud, as well. There are also some legal questions around the interpretations of the other statutes used in the case — all possible grist for an appeal to the high court.
All that said, disagreements about how statutes are used and interpreted are not uncommon in the law, and would most likely only come into play on appeal — after a Trump conviction.
This article was originally published on NBCNews.com