Will Trump’s Online Rants Undermine His Legal Defense, Even as Observers Describe Jack Smith’s Case as Far From a Slam Dunk?

As his lawyer makes Trump’s measured legal defense on television, the former president denounces Special Counsel Jack Smith as ‘deranged’ and questions the impartiality of the Obama-appointed judge now overseeing the case.

AP/Artie Walker Jr.
President Trump leaves after speaking at the 56th annual Silver Elephant Gala at Columbia, South Carolina, August 5, 2023. AP/Artie Walker Jr.

The description by one of President Trump’s attorneys of his client’s exploration of reversing the 2020 election as “aspirational” in nature brings into focus the outlines of a defense theory still coming into focus even as Mr. Trump courts a gag order by denouncing in colorful terms the special counsel, Jack Smith. 

That two-pronged approach emerged over the weekend, as one attorney for Mr. Trump, John Lauro, took to all five Sunday political TV talk shows to paint a picture of his client as someone who pulled up well shy of criminality. The “aspirational” approach appears to offer a more nuanced account of Mr. Trump’s behavior than the one the former president has put forth, which is more calibrated to the court of public opinion than to a courtroom.   

Even as Mr. Lauro was appearing on television to test drive his theory of the case, Mr. Trump used Truth Social to call the District of Columbia venue for his trial a “FILTHY AND CRIME RIDDEN EMBARRASSMENT TO OUR NATION” and intimated that he has “VERY POWERFUL GROUNDS” for asking the presiding judge, Tanya Chutkan, an appointee of President Obama, to recuse herself. He also referred to Mr. Smith as “deranged.”

Mr. Lauro tried to walk back those comments on a podcast hosted by a Florida attorney, David Markus. Mr. Lauro referred to Mr. Trump’s “layman’s political sense,” adding, “I have a responsibility, certainly, as an officer of the court to conduct the proceedings in a dignified manner, and I will do that at all times. To the extent that I can make any appropriate suggestions to a client, I do.” He reflected that “sometimes clients follow our suggestions, sometimes they don’t.”

Mr. Trump also rebuffed Mr. Smith’s request for a protective order that would curtail his ability to discuss evidence, posting, “no, I shouldn’t have a protective order placed on me because it would impinge upon my right to FREE SPEECH.” He called Judge Chutkan Mr. Smith’s “number one draft pick” and  the “Judge of his ‘dreams.’”

While Mr. Trump’s call for a change of venue and recusal will likely soon be memorialized in court filings to those effects, his ultimate fate is likely to hinge more on whether a jury — for now, at the District of Columbia, though Mr. Trump has publicly eyed West Virginia —  is convinced that the former president’s actions fell short of legal culpability. 

Mr. Lauro told CNN that “what President Trump didn’t do is direct Vice President Pence to do anything. He asked him in an aspirational way to ‘pause’ the electoral certification process he was tasked with by the Constitution.” He termed his client’s phone call to Georgia’s secretary of state, Bradley Raffensperger, during which he asked the official to “find” him enough votes to clinch victory in that state, an “aspirational ask.” 

In response to Mr. Pence’s claim that Mr. Trump asked of him what the Constitution forbade, Mr. Lauro told CNN that a “technical violation of the Constitution is not a violation of criminal law. That’s just plain wrong. And to say that is contrary to decades of legal statute.”

Some legal sages are inclined to agree. A law professor, Joshua Blackman, tells the Sun that the Constitution “is not a black and white document” and that there are “some questions that haven’t been resolved by the courts.” Presidents, he adds, are allowed to “advance weak constitutional arguments” without fear of prison. 

Mr. Blackman points to President Obama’s efforts in 2014 to make high-level government appointments by declaring the Senate to be in recess despite it holding pro forma meetings expressly meant to frustrate such a designation. That plan was rejected by a unanimous Supreme Court. Justice Stephen Breyer’s opinion declared that the “Senate is in session when it says it is.”

Notwithstanding that high court defeat, Mr. Blackman explains, no one argued that Mr. Obama was intending to defraud the United States, as Mr. Trump now stands accused of doing. Just because an open — or, in Mr. Lauro’s parlance, an “aspirational” — question was answered conclusively does not make it a criminal one. 

Mr. Smith’s indictment, though, offers a charge, 18 United States Code § 241, which criminalizes the deprivation of a constitutional right. The special counsel identifies that as the “right to vote and have one’s vote be counted.” The statute, born during Reconstruction, was originally intended to combat the Ku Klux Klan. Mr. Blackman calls its application in this context “novel.”

A longtime defense lawyer and professor, Alan Dershowitz, flatly calls 214 “misapplied,” noting how far afield its application is in the present case from its mandate to deter “hooded gangs from preventing recently enslaved persons from voting.” He reckons that the charge could get tossed before trial or on appeal. 

Mr. Dershowitz, who represented Mr. Trump in his first impeachment proceeding, told the Sun he would take a different tack than the one offered by Mr. Lauro. He shared, on the telephone, how he would address the jury if he were representing Mr. Trump: 

“Ladies and Gentlemen of the jury. I want you to assume Mr. Trump was right that the election was stolen. Don’t you agree that if that was the case everything he did would be not even legal but commendable? The issue is simple — did Trump believe that legitimately? If you find that he did, he is not guilty. In America you don’t punish people for being wrong.”

In suggesting that Mr. Trump’s defense should focus on his state of mind, Mr. Dershowitz cites a Supreme Court case, New York Times Company v. Sullivan, which held that a finding of “actual malice” is required to sustain a conviction of defamation or libel of a public figure. Here, conspiracy charges require the more arduous standard of “specific intent,” meaning there is a higher burden to show that Mr. Trump knew what he was doing was unlawful. 

Mr. Dershowitz predicts that the key to Mr. Trump’s fate will be the instructions that Judge Chutkan — for now — allows to be presented to the jury. If she instructs the members that Mr. Trump’s belief that the election was stolen had to be a “reasonable” one to avoid conviction, then it is likely he loses. If, though, the prosecution is held to a higher burden, he could, Mr. Dershowitz reckons, prevail. 

The New York Sun

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