Coup Indictment: Here’s Why Trump’s Usual Defenses Won’t Work
They’re not suited for these charges or circumstances.
DONALD TRUMP’S “DEFENSES” to the various civil and criminal charges that have been brought against him change shape over time like cinematic alien invaders: I didn’t do it. I had every right to do it. I never even met her. I may have met her, but she’s not my type. My lawyer told me I could do it. Hunter Biden did it. I did it, but it wasn’t a crime. It’s too insignificant to charge a former president. It’s too significant to charge a presidential candidate. It’s fake news.
But two of Trump’s standard, all-purpose defenses seem to have survived the test of time: (1) I really believed it. And (2) I relied on the advice of counsel.
Special Counsel Jack Smith’s new indictment of Donald Trump for crimes connected to the 2020 presidential election will challenge and, I believe, ultimately lay waste to those defenses.
The indictment charges Trump with conspiracies to defraud the United States “to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government” and to obstruct an official proceeding, specifically the lawful certification of the election results.
Broken down into their component parts, the conspiracy counts allege that Trump and his co-conspirators
used knowingly false claims of election fraud to get state legislatures and election officials to subvert the legitimate election results;
organized fraudulent slates of electors in seven targeted states to create the illusion that the election results were disputed in those states;
attempted to use the power of the Department of Justice to conduct sham election-crime investigations and to inform certain state legislatures, falsely, that the DOJ had identified significant concerns about fraudulent activity that may have impacted the result of the election when, in fact, the DOJ had reached exactly the opposite conclusion;
attempted to enlist the vice president to use his ceremonial role at the January 6, 2021 congressional certification proceedings to fraudulently alter the election results; and
exploited a large, angry mob whom they had deceived into believing that the vice president could change the election results in order to obstruct and delay the certification of the election results.
It is crucial to understanding the indictment to observe that Smith has not charged Trump with separate criminal violations for each—or any—of the individual component parts listed above. He could have. For instance, the fake-electors scheme alone implicated a host of state and federal criminal statutes that could have been charged assuming, as the indictment strongly suggests, that Trump can be credibly linked to them.
But Smith went a different route. Rather than charging Trump with discrete crimes for specific acts, he charged Trump with broader conspiracies, using the specific acts as evidence of and support for the larger conspiracy charges.
Smith’s strategy makes sense. Since entering into a criminal conspiracy is by itself sufficient to support a criminal charge, the object of the conspiracy doesn’t have to be achieved.
Hey—want to keep up with all our coverage of the Trump prosecutions? Sign up for a free or paid Bulwark subscription today.
That will shape the entire prosecution. For instance, while Trump attempted to coerce state legislatures to reverse the results of the election, he failed to convince them to do so. Similarly, he tried—but failed—to get the DOJ to send a letter to the states falsely claiming that it had determined that there had been significant election fraud. And Trump’s attempt to get Vice President Mike Pence to exceed his constitutional authority on January 6th also failed.
Fecklessness all around—yet all of these failures will be damning evidence against Trump at his trial on the conspiracy charges. It’s not so much what he accomplished (not much, unless you count undermining about half the nation’s belief in democracy). It’s more about what he tried to do. “But we couldn’t break into the vault” isn’t going to be much of a defense when you get caught robbing a bank.
THE NATURE OF SMITH’S CHARGES will also shape Trump’s defenses. Most of the political arguments made by Trump’s supporters in response to the indictment are just that: political, not legal, defenses. The claim that the indictment was designed to distract from “ongoing legal troubles” of President Joe Biden’s son Hunter, for instance, may have ramifications for the 2024 presidential election, but it won’t mean anything in a criminal trial. The case will rise or fall on its merits, and Hunter Biden will have no role in it.
But Trump’s two stock legal defenses—that he sincerely believed he had won the 2020 election and that he relied on the advice of counsel in his post-election activities—will be very much in play.
Let’s take a look at how each of those defenses is likely to play out in court.
First, some commentators are claiming that prosecutors will have to prove that Trump knew he had lost the 2020 election, and that this may be a major potential weakness in their case. Here’s how two writers phrased it in the Dispatch yesterday: “If Trump can convince one juror that he believed that he won the 2020 election and that he was trying to prevent the election from being stolen with fraudulent votes, then that’s the ballgame.”
To see what’s wrong with that analysis, start with the factual problem of Trump proving at trial that he really, most sincerely believed that he won the election. How is he going to do this? Is he going to testify? And what about the fact that virtually every senior member of his own administration—the vice president, the senior leaders of DOJ, the director of national intelligence, officials from the Department of Homeland Security, and senior staff members, not to mention state legislatures and officials, and dozens of state and federal courts—told him otherwise? And wouldn’t a claim that despite all of that, he really believed he had won have to pass some kind of smell test for reasonableness in order to gain any credence with a jury?
But forget all that and assume that Trump could, in fact, convince jurors that he really believed the election was stolen. What then?
Convincing at least one juror that Trump sincerely believed he won the 2020 election could gain him some sympathy if the juror were already inclined to view him favorably and might even have won the day, at least partially, if each of the components of Smith’s conspiracy counts had been charged as standalone crimes. For instance, Trump’s attempts to convince state officials and legislators to revisit the election results in their respective states could be seen as an attempt to right a wrong, not to commit one, if Trump could convince jurors that he sincerely believed that there were substantial, outcome-determinative fraudulent votes to be found.
But Trump’s attempts to strong-arm state officials are not charged as standalone crimes. Rather, they are presented as examples of what lawyers refer to as “overt acts” taken by Trump and others in furtherance of a criminal conspiracy to defraud the government. They are used to demonstrate that a conspiratorial agreement has advanced from mere talk to action, not to show that the conspirators committed additional crimes above and beyond the conspiracy itself.
Think, for instance, of a conspiracy to kidnap and hold a person for ransom. In furtherance of the scheme, the conspirators locate and rent a safe house, stock up to hold the hostage for a protracted period of time, buy ski masks, restraints and a telephone voice changer, and carefully observe the comings and goings in the target area. Not one of these acts taken in furtherance of the conspiracy is, standing alone, a crime. But individually and taken together, those overt acts are powerful evidence of a criminal conspiracy.
So it is with Trump. If he could convince a jury that he truly believed he had won the election, some of the overt acts alleged against him, standing alone, might look less sinister. But those acts do not stand alone. Rather, they are powerful evidence of the criminal conspiracy alleged in the indictment.
And while some of the overt acts alleged against Trump might look less damning if Trump could show he truly believed he won the election, others would not. Even a sincere, deeply held belief that the election had been stolen would not, for instance, give Trump license to participate in a fake-electors scheme. As I wrote over a year ago, none of Trump’s standard defenses can excuse this piece of dirty work. Trump can’t claim he didn’t know about it, and he can’t claim that forging election certificates and then attempting to pawn them off as official documents is just fine as long as you believe you won an election.
Think of it this way. You may be absolutely convinced that a charge on your credit card isn’t yours, but you can’t hack into the bank’s server to remove it. You may know with all your heart that your neighbor took your Rolex, but you can’t break into his house in the middle of the night to retrieve it (just ask O.J. Simpson about that one). You may hold it as an article of near-religious faith that the government is tyrannical, but you can’t blow up the federal building.
Believing you have a legitimate gripe—even if you’re right about it—doesn’t give you license to commit crimes. As the indictment concedes, Trump had a right, “like every American,” to speak publicly about the election “and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”
But he didn’t have the right to attempt to redress that supposed grievance by defrauding the government and attempting to obstruct one of our democracy’s most sacred official proceedings.
TO SEE WHY TRUMP’S OTHER MAINSTAY DEFENSE—claiming he relied on the advice of counsel—won’t work this time around, ask yourself this: What legal advice did Trump supposedly rely upon, and from whom did he receive it?
There are only two potential areas of legal advice that could be advanced on Trump’s behalf in any meaningful sense: (1) that there was a level of fraud in the election that determined its outcome; and (2) that the vice president had the constitutional authority to reject the certified election results and throw the election to state legislatures who could overturn it in Trump’s favor.
How is Trump to convince a jury that he relied on such legal advice? If Trump doesn’t testify—which seems near-certain—who will supply the evidence of this? The attorneys on whom he might claim to have relied—Rudy Giuliani, John Eastman, Jenna Ellis, Sidney Powell—are unlikely to testify because they are either named or unnamed co-conspirators with potential criminal liability of their own. If any of them do testify, they risk being exposed as liars and frauds who can be torn to shreds on the witness stand.
The attorneys who will testify, on the other hand, are credible professionals—many of whom, like Bill Barr and Pat Cipollone, were appointed by Trump himself—who will establish that Trump did not rely on the advice of counsel. Based on what they told the House January 6th Committee, we know they will testify that they advised Trump that they had seen no evidence of outcome-determinative fraud in the 2020 election, and that the vice president did not have constitutional authority to reject singlehandedly the slates of electors that had been officially certified.
Trump didn’t rely on the advice of counsel, he rejected it. He then went and sought out a cohort of kooks and shameless conspiracy nuts who would say whatever he wanted to hear. That’s not reliance on the advice of counsel, that’s the opposite: that’s the client advising the lawyer of what he wants to hear.
Even so, suppose for a moment that Trump could convince a juror or two that he actually had relied on the advice of counsel. That still wouldn’t excuse the “use of deceit to get state officials to subvert the legitimate election results and change electoral votes,” the use of “dishonesty, fraud, and deceit” to “organize fraudulent states of electors and cause them to transmit false certificates to Congress,” the “attempt to leverage the Justice Department to use deceit to get state officials to replace legitimate electors and electoral votes with [Trump’s],” or the “exploitation of the violence and chaos at the Capitol” on January 6th—all as alleged in the indictment.
TRUMP AND HIS ATTORNEYS obviously know that neither a supposedly sincere belief that the election was stolen nor the claim that he relied on the advice of counsel will be an effective defense if it comes down to a criminal trial.
Trump’s ultimate defense will have nothing to do with the facts, the law or the judicial system.
It will revolve around only one thing: getting re-elected so that Trump can either pardon himself or, more likely, rely on a carefully chosen attorney general to drop the charges.