The Trump Defense: An Initial Evaluation

Donald Trump’s new defense counsel, John Lauro, was all over the Sunday talk shows previewing his client’s defense in the Jan. 6 case. Unlike some of the clowns who show up on television as Trump lawyers, Lauro did a creditable job and actually made a coherent set of arguments, which we can reasonably take as an early draft of both the Trump trial defense and some of the arguments he will likely make in motions to dismiss. Below, we have assembled Lauro’s comments and organized them thematically. Following the presentation of the defense arguments, we offer some thoughts on them and their plausibility in court.

Lauro laid out his case most completely on NBC’s Meet the Press: 

“Trump believed in his heart of hearts that he had won that election, and as any American citizen, he had a right to speak out under the First Amendment,” Lauro said: 

He had a right to petition state governments around the country based on his grievances that election irregularities had occurred. He had every right to speak about the issues that were taking place after the election. Certainly, Mr. Pence, his Vice President, agreed with him that there were anomalies and discrepancies in the election process. And Mr. Trump had every right to petition the government, and enforce his first Amendment right.

In Lauro’s account, Trump’s belief that he had won was reasonable even if not correct:

Both Vice President Pence and President Trump saw that they had 10 million more votes than they had in 2016. No president has ever lost under those circumstances. They also saw that Joe Biden outperformed Hillary Clinton by 15 million votes even though she was an inspirational candidate and Joe Biden was sitting at home in his basement. They also saw that Trump won all of the disputed counties. In addition, they had over a thousand people come forward and under oath and say that there were discrepancies in the election. And finally, and most importantly, what President Trump and Vice President Pence saw were that the rules of the game had been changed by local electoral officials contrary to the state legislators. So he took what he was entitled to do, which was to petition Vice President Pence on January 6. Once that petition was completed and Vice President Pence rejected his petition, it was over, and there was a peaceful transition of power.

As described by Lauro so far, the defense appears to have four components. The first one is the contention that Trump honestly believed in good faith that he had won and thus did not have the requisite criminal intent to be guilty of crimes that require a corrupt mental state. “The Biden administration would have to prove beyond a reasonable doubt that President Trump did not believe that he won the election,” Lauro stated on Meet the Press. “They will never be able to do that,” he continued, “and that’s why this prosecution is so ill-conceived.” 

The second, and dominant, theme is the First Amendment, the idea that everything that Trump did was a combination of free speech and protected petitioning of government officials for redress of grievance. The Ellipse speech was protected political speech, Lauro argued to Meet the Press. By asking Pence to “pause” the electoral count, Lauro argued on every Sunday morning talk show, Trump was practicing his First Amendment rights, because “asking” an official to do something is “aspirational” speech, not conduct. Similarly, Lauro contended on Meet the Press that Trump’s phone call to the Georgia secretary of state, to find 11,780 votes, was an “aspirational ask” and therefore also protected speech. Trump is entitled to petition state governments—that’s “core political speech,” Lauro contends. Petitioning the government is political speech, Lauro argued on Fox News Sunday, and political speech is “higher than any other speech” protected under the First Amendment.

Lauro acknowledged that it is possible to commit crimes merely by speaking words through, say, perjury, bribery, other types of fraud, identity theft, and so on. But he distinguishes between what Trump did and such frauds and obstructions. “None of those examples involve political speech,” he argued on Fox. By contrast, “What the Biden administration does not do is reference any conduct at issue. President Trump did not issue any executive orders or do anything in terms of using levers of executive power. He simply petitioned and asked.”

Supporting the former president’s First Amendment defense, in Lauro’s account, is the claim that he was acting on advice of counsel. John Eastman, Lauro argues, was an “esteemed constitutional scholar” who drew up a number of scenarios—including sending a slate of “alternate” electors and petitioning the vice president to pause the electoral count. 

Lauro argued on CBS’s Face the Nation that these were constitutional discussions, in which all legal theories were discussed and analyzed. “Never in our country’s history have these discussions or disagreements about legal theories been prosecuted criminally.” In other words, Trump followed the advice of his counsel when he “petitioned” Pence under the First Amendment “only for a pause” in the electoral count. Because his attorneys advised Trump that he had a right to petition government officials to redress his grievances and because Trump earnestly believed the garbage he was spewing, he did not have criminal intent. And without criminal intent, Trump did not violate the law. 

On Meet the Press, Lauro suggested that he will be able to raise this defense without Trump having to take the stand and testify to his having acted on advice of counsel—though he did not specify how he will be able to do this.

Finally, Lauro briefly suggested on Meet the Press that he may raise some kind of presidential immunity argument. “Everything that President Trump did was while he was in office as president. He is now immune from prosecution for acts that he takes in connection with those policy decisions, and the Biden administration has not addressed that.” 

“This is a constitutional case. This is going to be the most important civil rights constitutional case in decades,” he told Meet the Press. 

Lauro made other points as well. He told Face the Nation, for example, that there were no circumstances under which Trump would accept a plea deal. He said the defense would be filing a motion to dismiss, in which we can assume some of the material above will be incorporated. He said the case would not be ready for trial for another two or three years. And he declared that the defense would pursue a venue change. 

“We would like a diverse venue, a diverse jury. One that reflects the characteristics of the American people.” He suggested West Virginia as an appropriate jurisdiction for a trial. 

That said, these are procedural points, not substantive ones. 

So what can we say about this sketch of Trump’s coming defense? Quite a lot, as it turns out—more than easily fits in a single article. Analyzing it, in fact, helps pinpoint certain key points in the indictment and some key aspects of the prosecution’s burden as it litigates the case, both pretrial and before a jury. We will reserve the presidential power questions for a separate piece, as they are mostly unrelated to the other defenses and because Lauro did not explain his thinking on the subject in any depth. In this article, we focus on the other defense he sketched out.

Let’s start with Trump’s First Amendment defense. To wit, was Trump acting within the protection of the First Amendment when he called state leaders to find additional votes, when his team recruited fake electors, when he “petitioned” Pence to stop the certification, and when he asked a mob to march on the Capitol during the certification process?

Remember that a conspiracy under 18 U.S.C. § 1512(k), 18 U.S.C. § 371, and 18 U.S.C. § 241 requires the jury to find (1) that Trump made an agreement with at least one other person (2) to obstruct an official proceeding or defraud the United States or interfere with the right to vote, (3) that he did so with specific criminal intent, and (4) that he took some action in furtherance of the conspiracy. 

Nobody doubts—not even Lauro—that a person can engage in such a conspiracy using only verbal acts. What Lauro seems to be arguing, by contrast, is that one cannot be guilty of a conspiracy if all of one’s verbal acts take the specific form of political speech. In other words, the sum total of five or 10 constitutionally protected acts of political speech, he seems to be arguing, cannot be a conspiracy. So the initial question is whether this argument has legs and, if so, under what circumstances.

The short answer is that on its own, it does not have legs, but in combination with some of Trump’s other defenses, it could—particularly before a jury.

In his Meet the Press interview, Lauro cites a century-old Supreme Court case, Hammerschmidt v. United States, for the proposition that advocacy, even encouragement that someone break the law—as the defendants did in Hammerschmidt when they encouraged men to evade the draft and violate the Selective Service Act—still qualifies as protected speech. On CNN, he was more pithy: “When you’re exercising free speech, you’re not engaging in fraud on the government.” 

The reason for Hammerschmidt’s attraction for the defense is straightforward: It deals with political speech—which is how Lauro categorizes Trump’s activity—rather than garden-variety criminal activity. But the case is actually a bad one for Trump and doesn’t say what Lauro claims. Chiefly famous for its articulation of what it takes to constitute a conspiracy to defraud the United States under what is now § 371, the case doesn’t deal with the First Amendment at all. It simply holds that handing out pamphlets urging people to resist the draft cannot be a conspiracy to defraud the government because it “include[s] within the legal definition of a conspiracy to defraud the United States a mere open defiance of the governmental purpose to enforce a law by urging persons subject to it to disobey it.” This case really stands for the proposition that without some element of trickery, there can be no conspiracy to defraud. It says little about whether a conspiracy can be made up of acts of political speech.

The better case for Trump is the Supreme Court’s 1982 case, NAACP v. Claiborne Hardware Co., which held that the target of a boycott that had protected speech elements and violent elements could not recover damages against those who did not have specific intent to further the illegal aims of the boycott. The Supreme Court held in that case that the nonviolent elements of the NAACP’s boycott activities were protected by the First Amendment and that the defendants were not liable in damages for the consequences of their nonviolent protected activity even though, in “the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline” on Black people who violated the boycott.

But Claiborne Hardware gets Trump only so far. The reason is that the special counsel is alleging that Trump did have specific intent to further the illegal aims of these conspiracies. In other words, according to prosecutors, Trump’s speeches and petitions advocated for specific activities and were all in service of an unlawful and fraudulent objective—in contrast to the NAACP defendants in Claiborne Hardware, who had not been shown to advocate for specific boycott activities or specifically intend the violence that some of their rhetoric may have effectively precipitated. 

Moreover, the Claiborne court leaves open the option for prosecutors to use Trump’s “political speech” to corroborate intent. “If there were other evidence of [the defendant’s] authorization of wrongful conduct,” the Court starts, “the references to discipline in the speeches could be used to corroborate that evidence.”

These distinctions put an enormous premium on what prosecutors will and will not be able to prove about Trump’s specific intent, and also on what evidence Trump might introduce about how he really was earnestly concerned about election integrity. It also puts a premium on what kind of jury instruction the judge will ultimately issue on the point.

Trump might also try to make an argument under the test the U.S. Court of Appeals for the First Circuit articulated in 1969 in the famed case of United States v. Spock, which dealt with a letter signed by prominent scholars—including Benjamin Spock—to resist the draft and destroy draft cards during the Vietnam war. The case has both good news and bad news for a Trump defense. The good news is that it concerns an alleged conspiracy that took place, broadly speaking, in public—much like a great deal of Trump’s conduct—and that the First Circuit required that to satisfy the First Amendment. Such a conspiracy charge must show that a defendant specifically intended to further the illegal, as well as the legal, activities of the conspiracy. 

The bad news for Trump is that the doctrine under which the First Circuit articulated the so-called Spock test comes into play for crimes that most obviously implicate the First Amendment, specifically ones concerning membership in a group, solicitation, and advocacy. So it’s not entirely clear whether it would apply to this case at all, even were the Spock test controlling in the D.C. Circuit. And even if it did apply, it’s not clear either that the indictment in this case would fail it. The First Circuit writes in Spock: 

When alleged agreement is both bifarious (encompassing both legal and illegal activity) and political within shadow of First Amendment, individual's specific intent to adhere to illegal portions may be shown: (1) by individual defendant's prior or subsequent unambiguous statements; (2) by individual defendant's subsequent commission of very illegal act contemplated by agreement; or (3) by individual defendant's subsequent legal act if that act is clearly undertaken for specific purpose of rendering effective later illegal activity which is advocated (emphasis added).

As this language shows, even this most speech-protective of rules would allow the special counsel room to bombard a jury with evidence of Trump’s corrupt intent and, if the jury were persuaded, show that his lawful, even protected activity was all in service of unprotected criminality.

Previous efforts to deploy similar tests in Jan. 6 cases have not gone well for the defendants—though, it is worth noting, that these defendants were often accused of violent activity. In one of the Proud Boys cases, defendant Zachary Rehl argued that the grand jury should have judged the case using a similar standard to the one the First Circuit used in Spock. Federal District Court Judge Timothy Kelly held that this standard did not apply in this case because Rehl was not charged with being a member of the Proud Boys. What’s more, the conspiracies alleged against him (seditious conspiracy and conspiracy to prevent a United States officer from exercising his or her duties) did not have both lawful and unlawful “branches.” Rather, “both the alleged ends of the group [stopping the electoral count], and the alleged means chosen to achieve that end [unlawfully storming the Capitol grounds and building, damaging property, and assaulting and interfering with law enforcement] were illegal.” 

In a prior opinion, Judge Kelly wrote that the alleged conduct against the Proud Boys was not even expressive. In language that bodes badly for Trump, he went on to say that:

Even assuming some aspect of Defendants’ charged conduct warranted First Amendment protection, applying Section 1512(c)(2) to them still passes muster. The Supreme Court has “held that when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” ... The Government has a weighty interest in protecting Congress’s ability to function without “corrupt” interference, and that interest is unrelated to the suppression of free expression. And here, given that Congress was convened in Joint Session to undertake one of its most solemn and important constitutional duties, that interest could hardly have been more important. In addition, applying the statute to Defendants imposes no more than an incidental limitation on First Amendment freedoms, if even that. In fact, by focusing on “corrupt” actions, the statute does not even reach free speech.

This logic could leave room for the Trump defense to argue that his case falls on the other side of the line. After all, unlike the Proud Boys defendants, who undertook all kinds of violent activity at the Capitol, the indictment against Trump involves a much higher portion of political speech and does not allege violent means. But again, this will put a premium on the evidence the special counsel can muster of Trump’s corrupt intent. And it will put a premium on defense efforts to prove that his intent was, in fact, benign.

This brings us to the notion that Trump earnestly believed he had won the election and therefore could not have had corrupt intent. Trump will presumably put on evidence that he actually believed he won the election, and he will presumably be able to call witnesses who will testify to his saying this in real time. A huge amount will turn on whether he can do this effectively. And there are a few cases in which Jan. 6 defendants have persuaded courts that they lacked necessary criminal intent—though none of them looks anything like the Trump case. 

After a bench trial, for example, U.S. District Judge Amy Berman Jackson acquitted Joshua Black of corrupt obstruction of an official proceeding for lacking the requisite criminal intent. Black had a “unique stew in his mind,” she found, as reported in Politico and Insider. Indeed, Black had been shot in the face by police with a “less-lethal round” (rubber bullet essentially) on the west plaza of the Capitol. The round passed through his cheek, yet he and other rioters plugged it with cotton and Black persisted in his siege, eventually making it all the way into the Senate chamber. He said in a video shortly after the event that he'd gone there to “plead the blood of Jesus” and absolve the chamber of evil spirits. Jackson acquitted Black of corrupt obstruction of an official proceeding but found him guilty of five other charges, including one felony: entering and remaining in a restricted building with a dangerous weapon (a knife).

Similarly, James Beeks entered the Capitol with about a dozen other Oath Keepers, including several charged with seditious conspiracy. By the time of trial, Beeks was charged only with conspiring to obstruct an official proceeding and impeding officers. U.S. District Judge Amit P. Mehta acquitted him of both counts. As to the conspiracy to obstruct an official proceeding charge, the judge found no evidence Beeks knew that others had been planning to obstruct Congress. (See here and here.)

As a general matter, however, Jan. 6 defendants have not gotten a lot of mileage out of the claim that they lacked the appropriate mens rea to violate criminal statutes—though, again, these are not cases that much resemble Trump’s. Defendant Anthony Griffith, for example, testified that he was guided by firm religious convictions for protesting at the Capitol. Griffith also thought it was lawful to enter and remain in the Capitol and its grounds until instructed otherwise. For the first claim, the court held that Griffith’s religious views did not negate the clear video and photographic evidence that showed his intent to engage in political demonstrations in concert with the mob around him. And with regard to the second claim, Judge Colleen Kollar-Kotelly held that the defendant was on notice that he was not permitted in the Capitol when he witnessed others get pepper sprayed, the ear splitting alarm upon entering the Capitol, a ransacked office, broken glass, and the broken doors that rioters used to enter the Capitol.

But, of course, Trump will merge this claim of earnest belief with his First Amendment argument, and he will add another element too—the notion that his acting on advice of counsel will abnegate his criminal intent.

As a general matter, the advice-of-counsel defense is viable in circumstances in which a defendant's good-faith reliance on the advice of a lawyer effectively negates the element of mens rea. As the Second Circuit articulated the defense in 1989, to prevail on this point, Trump would have to make three arguments: (1) that he sought the advice of counsel honestly and in good faith prior to committing any crimes; (2) that he fully and honestly placed all of the facts before his counsel; and (3) that he followed his counsel’s advice in good faith and honestly believed it to be correct and intended that his actions are lawful. Advice of counsel is typically an affirmative defense, meaning that if Trump really established these three elements, he could not lawfully be convicted of a crime that involves willful and unlawful intent, even if the advice he received were errant.

In a fraud case, however, the advice-of-counsel defense is not an affirmative defense but, rather, a factual question that can raise a reasonable doubt in the minds of the jurors about whether the government has proved the required element of the offense that the defendant had an “unlawful intent.” In other words, once Trump raises this defense, the government bears the burden of proving beyond a reasonable doubt that Trump had the state of mind required for conviction on a given charge.

There are two problems with this defense for Trump. The first is a factual problem: Smith can bring forward significant evidence that Trump disregarded the opinions of numerous lawyers, who advised him properly, and focused instead on the advice of those who were telling him what he wanted to hear. In other words, while following the advice of some counsel, he was willfully ignoring the advice of other counsel, including campaign counsel, Justice Department lawyers, White House counsel, and others. This would complicate a defense effort to argue that he followed John Eastman’s advice in a good-faith effort to comply with the law. 

The second problem is a legal one. In a 2004 case called United States v. West, the D.C. Circuit held that the defense of advice of counsel necessarily will fail when the counsel in question is a co-conspirator. Eastman and Rudy Giuliani are both identified as unindicted co-conspirators in the indictment, so it’s not clear that the defense is available to Trump here, though it presumably could be used to muddy things and raise doubts in the minds of jurors.

The bottom line, in short, is that none of these three defenses is, on its own, a compelling defense against this indictment, and none of the three is likely to support a winning motion to dismiss. That said, none is frivolous either, and they may well be stronger in combination with one another before a jury, where Trump needs only one sympathetic pair of ears. All, importantly, come down to the same thing. A compelling showing by Jack Smith that Trump was not acting in good faith but was acting corruptly will defeat Trump’s First Amendment defense. It will also, by definition, defeat any notion that he lacked criminal intent. And it will also defeat the claim that he was relying on lawyers and following their advice. Trump’s intent, in short, will be a factual battleground at trial.

In a subsequent piece, we will look at possible executive power defenses and how they might arise both in pretrial litigation and at trial.