Jack Smith (AP Photo/Peter Dejong, Pool), Donald Trump (AP Photo/Evan Vucci, File)
Donald Trump’s new defense attorney John Lauro has been ubiquitous in the media, notably this past Sunday when he went public on all five major news networks describing his complex defense strategy that resembles what I’ve termed a “smorgasbord” defense to conspiracy and obstruction charges regarding the 2020 presidential election. The strategy calls for utilizing any and every possible defense argument, however strained and implausible, in the hope that one juror might buy it and hang the jury.
Lauro’s task is difficult. He must defend conspiracy charges that many commentators believe are strong and that divide the country into two bitterly contentious camps: the 70 percent of Republican voters who still believe the 2020 election was stolen, and everyone else.
Lauro’s job is complicated by the need to present his client as the victim of overreaching prosecutors and as someone who claims in good faith that, but for the misconduct and fraud by Democratic operatives, he would have won the 2020 election. Lauro’s task is to present coherent arguments that might cause one juror to have a reasonable doubt.
Below are some of the main arguments that will be raised:
First, Trump will claim that he relied on the advice of his lawyers. Lauro will argue that Trump was advised by several lawyers that he legitimately won the election, that the electors for Biden were illegitimate, and that the replacement electors for Trump was a permissible option. There are a few problems with this argument. Some of the lawyers who advised Trump, specifically Rudolph Giuliani and Sidney Powell, are themselves are believed to be co-conspirators, and John Eastman — whom Trump called the “esteemed constitutional scholar” and was not even acting as Trump’s lawyer — himself faces disbarment proceedings in California for advancing the extra-legal notion of “alternative” electors from swing states to replace the real ones for Biden.
Second, Lauro will claim that throughout the post-election weeks, Trump was exercising his right to free speech. This is part of the “aspirational” theory that suggests that merely asking somebody to do something is protected speech. Indeed, at the core of the indictment is the charge that Trump asked then-Vice President Mike Pence, in effect, to overturn the election by not certifying the Biden electors. According to Lauro, “asking is not action. It’s core free speech.” But many crimes are committed by words — threats, bribery, extortion, incitements to unlawful conduct, perjury and other false statements, and of course, conspiracy. So, if “asking” is not action, what about asking your friend to help you rob a bank. Is that protected speech?
Indeed, the indictment was carefully drafted and explicitly acknowledges Trump’s right to “speak publicly about the election” and even to make false fraud claims. But Trump is charged with plotting to overturn the election, not lying about it, and conspiring to commit an unlawful act is not protected speech.
Third, another defense will claim that the conspiracy charges lack any merit and were brought by the Biden administration to saddle Trump with phony criminal charges and either prevent him from running for president in 2024 or burden him with having to expend time and money in defending the charges. Critics will allege that Attorney General Merrick Garland is a Biden appointee and Special Prosecutor Jack Smith was appointed by Garland. Whether this claim will be quickly dismissed or presented to jury is unclear.
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An important issue will be whether Trump had a criminal intent to engage in a conspiracy to defraud the electorate and obstruct Congress’ duty to certify the election result. To convict Trump of any of the conspiracy charges, the prosecution must establish that Trump had a “corrupt intent” to undermine the election results and the legitimate transfer of power. Is it a defense that Trump truly believed the election was fraudulent and that he engaged in a good faith attempt “for the truth to come out in that election cycle rather than the truth to be denied,” as Lauro told NPR? Intent means that a person had the conscious purpose to engage in the proscribed conduct. You can’t X-ray a person’s mind. But having a good faith belief that you are behaving lawfully is not a defense. Otherwise, every defendant could make such a claim, namely, “I believed the bank cheated me and that’s why I robbed it.”
Whether any of these arguments will convince any juror is questionable. But if Trump goes to trial, lurking in the courtroom is the specter of “jury nullification.” This phrase embodies a longstanding and controversial idea that a jury should be allowed to disregard the law in the interest of fairness and justice. It is the jury — the voice of the community and the community’s sense of values — that must explore and assess the boundary between law and justice. It is commonly accepted that juries have the power to nullify the law.
But it also well-settled that juries do not have the right to nullify the law. Jury nullification is considered a violation of a juror’s oath to apply the law as instructed by the court. To encourage jurors to make their own determinations as to which laws they will obey and which they will disregard invites anarchy. No legal system could last long if every individual had the option of disregarding with impunity any law that by their standard was considered morally objectionable. And it is misconduct and contemptuous for a lawyer to encourage a jury to nullify.
When and where will the trial begin? The special prosecutor wants the trial to start within 70 days, but Lauro wants to delay it. He has just contested the special prosecutor’s bid to keep evidence from the media for fear of scaring witnesses. Also, Trump says he can’t get a fair trial in the overwhelmingly Democratic District of Columbia and wants his trial moved to what he claims is a more neutral site, such as the “politically unbiased” state of West Virginia, which voted overwhelmingly for Trump in 2020. The bid to move the trial will consume time but is unlikely to succeed; lawyers for accused Jan. 6 rioters already have tried and failed to move their trials because Washington is where the crimes happened.
Trump also wants U.S. District Judge Tanya Chutkan removed; Lauro has not supported the request. And many followers want the trial televised, which under federal judicial rules is not allowed.
This unprecedented saga is just beginning to play out. Virtually everything about this case is new and untested. It’s the most unusual legal and political spectacle we have ever witnessed.
As a cynic might say: “Let the games begin.”
This is an opinion piece. The views expressed in this article are those of just the author.
