Donald Trump’s legal team is signaling his defense will focus on the First Amendment and his reliance on counsel in the battle over charges connected to Jan. 6 and the former president’s efforts to remain in power following the 2020 election.
Trump, who pleaded not guilty during a Thursday arraignment, has denounced the prosecution as a witch hunt while floating the idea of moving the trial from the predominantly Democratic city of Washington, D.C. On Friday, he called on the Supreme Court to “intercede.”
Legal experts say the indictment presents at length a seemingly strong case against Trump built on phone records, emails and contemporaneous notes taken by people in the former president’s orbit.
Prosecutors describe a multi-pronged effort from Trump to use “dishonesty, fraud and conceit” to remain in power following an election he lost.
“They really do a great job of laying out the facts of former President Trump’s knowledge of the falsity of the claims that he was making across a spectrum of different audiences, be it state and local public elected officials, or election officials, or within his own campaign staff and within his inner circle,” said Kenyen Brown, the former U.S. attorney for the Southern District of Alabama.
None of that makes for an open-and-shut case, however, and Trump’s attorneys have repeatedly insisted the alleged conduct was protected by the First Amendment.
“President Trump, like all of us, has a right to redress grievances, has a right to protest an election that he felt was unfair, has a right to campaign on a position,” John Lauro, an attorney representing Trump, said on Fox News on Thursday evening. “And they’ve attacked that right, not just for President Trump, but for everyone.”
Brown, who now is a partner at Hughes Hubbard & Reed, pushed back on the notion that Trump’s actions were protected by the First Amendment, however.
“I think the special counsel went through great lengths to try to articulate within the indictment themselves that speech itself is protected,” Brown said. “That there are legal processes to challenge the election results and that all of those legal methods had been exhausted by the former president. And despite those roadblocks, he then crossed the threshold and started to engage in what is alleged to be illegal conduct, putting forward prolific lies in order to keep him in power.”
Four felony charges
The indictment contains four felony charges. Trump is first charged with conspiracy to defraud the United States, which carries a maximum penalty of five years in prison.
Prosecutors must prove four elements, according to a model prosecution memo published by Just Security: that Trump entered into an agreement with at least one other person; that he intended to obstruct the collection, counting and certification of the election results; that he did so by deceitful or dishonest means; and that he made at least one overt act to further the conspiracy.
Prosecutors allege Trump worked with six unindicted co-conspirators in committing a number of acts: pressuring state officials to subvert the election results, organizing false slates of electors, attempting to leverage the Justice Department, pressuring then-Vice President Mike Pence and exploiting the Capitol riot.
The indictment outlines multiple instances in which Trump was purportedly told by those around him that there was no evidence of fraud and that various strategies being floated to him had no merit. Trump’s attorneys have previewed that they will argue Trump was relying on the advice of attorneys around him.
“He may not agree with Mike Pence, he may not agree with one of his lawyers, but that doesn’t mean that there weren’t other people advising him exactly the opposite. And the president has a right, as every one of us do, to listen to several opinions and make their decision,” Alina Habba, Trump’s legal spokesperson, told reporters outside the courthouse where he was arraigned.
Trump is also charged with two counts related to obstructing the Jan. 6 certification of the Electoral College vote.
One of those charges — corruptly obstructing an official proceeding — was previously brought against more than 300 Jan. 6 defendants, according to a Justice Department tally. Many rioters have already been convicted and sentenced under the statute, though often in tandem with other crimes.
The charge originated from a law passed in the wake of the Enron scandal to crack down on corporate wrongdoing. Prosecutors’ application of the charge to Jan. 6 has been the subject of an ongoing legal dispute.
In April, the U.S. Court of Appeals for the D.C. Circuit upheld the use of the charge for the riot in a 2-1 vote. But the judges all wrote separate opinions and left an open question of what is necessary for prosecutors to show a defendant acted “corruptly,” an element required for conviction under the statute.
Trump is also charged with conspiracy to obstruct the certification vote.
Like many Jan. 6 defendants before him, Trump and his attorneys have suggested they may seek to move the trial out of D.C., where the jury pool would be heavily Democratic. Judges have repeatedly denied those motions from other defendants.
“I take issue with that,” said Brown. “The jurors who are sworn in Southern Florida as well as those in Washington, D.C., should be accorded equal respect.”
The fourth and final charge, conspiracy against rights, was brought under a statute dating back to Reconstruction.
It was passed as part of the Ku Klux Klan Acts, a series of laws devised to protect the rights of Black Americans newly protected by the 13th, 14th and 15th Amendments.
Sean Morales-Doyle, the director of the Brennan Center Voting Rights Program, said although Jan. 6 is an anomaly, there are common threads between Trump’s actions and the statute’s original purpose.
“At that moment, the country had made a decision, thankfully, to include Black men in our elections, and there were a lot of people who were trying to stop that from happening. So we are at another moment right now,” Morales-Doyle said.
“I don’t mean to suggest that it’s the same moment or that what Trump is doing is what the Klan was doing. But we’re at another moment where we’re really having a fight over the future of our democracy,” he added.
The law has previously been upheld by the Supreme Court and has been used over decades to charge a variety of conduct relating to elections. Among the more recent examples, federal prosecutors convicted a Kentucky mayor under the statute in 2014 for bribing and coercing voters and convicted a social media influencer in March for a disinformation campaign aimed at suppressing votes.
Morales-Doyle noted that the statute does not require proving the conspiracy was successful or that Trump committed any overt act to further it. Instead, prosecutors only need to show there was a conspiracy with the intent to deprive people of their right to vote, he said.
“Though [the statute] was initially about stopping terroristic intimidation of voters, in a number of instances in the decades since, it has been used to go after election subversion, conspiracies and schemes like the one that is alleged in the Trump indictment,” said Morales-Doyle.