The latest indictment against Trump is far more complex than the previous two, as well as any indictment that could have emerged from Fulton County, Ga. This particular indictment targets a scheme that unfolded over several weeks and in multiple states, involving numerous individuals, including Trump-aligned activists, co-conspirators, and Republican operatives who sought to overturn the 2020 election results in various states.
In order to comprehend the challenges faced by both the prosecution and the defense in front of jurors and appellate judges, it would be beneficial to allow both sides to present their arguments. Here, I will outline the primary issues without oversimplifying the intricacies of the case.
Imagine two attorneys advocating their cases for you, a non-lawyer:
Prosecution: I understand that the indictment is lengthy, and the trial may stretch on for weeks, but let me provide you with a concise summary. Donald Trump conspired with multiple individuals to overturn an election that he knew he had lost. This scheme involved a range of tactics, from intentionally deceiving state legislators to manipulate the results, orchestrating a fraudulent elector scheme with sham Electoral College votes, to pressuring a state official to help Trump find the votes needed to change the outcome in Georgia.
Defense: While that may sound compelling, a closer examination reveals the weaknesses of this case. Let’s start with the word “knew.” We will present evidence showing that numerous administration officials and others believed the election was fair and that Joe Biden had won. Conversely, Trump received a plethora of legal advice suggesting there was significant fraud in key swing states. He heard conflicting recommendations from different sets of lawyers and ultimately followed the advice of one team over the other. It shouldn’t be a punishable offense to rely on flawed legal counsel.
Furthermore, every count in your indictment requires a showing of criminal intent. For instance, your attention-grabbing 18 U.S.C. Section 241 count, which safeguards the right to vote from criminal conspiracies, necessitates proving that my client intended to cast false votes. However, Trump intended for electors to cast legitimate votes in his favor.
Additionally, the viability of two other counts – obstruction of an official proceeding and conspiracy to obstruct an official proceeding – is tenuous. The statute itself is poorly written and may not even apply to Trump’s actions. Furthermore, the intent requirement may be more demanding than you believe. A recent appeals court ruling, upholding a verdict against a Jan. 6 defendant, highlighted that proving corrupt intent entails demonstrating that obtaining an unlawful benefit was the defendant’s “objective” or “purpose.” Good luck establishing that Trump’s objective was anything other than exposing potential fraud.
Prosecution: Those individuals you refer to as Trump’s lawyers were, in fact, his co-conspirators. Many of the people you claim Trump relied on were not acting in good faith but were actively involved in criminal activities alongside him. Court cases and bar actions have already resulted in fines and potential revocation of law licenses for several of Trump’s co-conspirators due to their unethical advice.
In fact, lawyers are not penalized and disbarred for providing genuine legal advice. But co-conspirators are held accountable for breaking the law. While you may deceive Trump’s supporters, we are confident that the jury will see through any attempts to misrepresent intent. Defendants frequently lie about their intentions, and juries are adept at discerning the truth. We will demonstrate that every credible official provided Trump with the same advice, and we will prove that he considered some of his allies’ advice to be outlandish, even referring to it as “crazy.” Cassidy Hutchinson’s testimony to the House Jan. 6 committee reveals that Trump told his chief of staff, Mark Meadows, something along the lines of: “I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to find a solution. I don’t want people to know that we lost.” Trump’s objective was not to expose fraud but rather to commit fraud.
Defense: Are you implying that Trump actually said he considered Pence too honest or called Sidney Powell’s case crazy? Your witnesses are providing false testimony. He never made those statements about Pence.
Prosecution: So you’re suggesting that Trump will testify and deny these statements to the jury? And then I will have the opportunity to cross-examine him?
Defense: I will provide a response to that question later.
Prosecution: And let’s not even delve into the First Amendment defense you’ve been presenting on Fox News. As a former federal prosecutor highlighted, first-year law students are taught that there is no First Amendment privilege to engage in criminal acts simply by utilizing speech. If you review the indictment, you’ll notice that we acknowledge Trump’s right to challenge the election and file lawsuits, no matter how absurd. We are not indicting him for those actions or even for lying. Politicians have lied about elections throughout history. We are charging him for conspiring to cast false electoral votes. Courts have been addressing cases involving fraud and conspiracies against rights, including voting rights, for decades, and the First Amendment does not shield proven conspirators from criminal liability.
Defense: So now we are discussing court precedents? The precedents you cite are outdated. The Supreme Court, with its conservative majority, has significantly narrowed the scope of federal fraud statutes. If you haven’t read National Review’s editorial on the matter, I suggest you do. Fraud statutes are intended to prevent individuals from defrauding the government of money or tangible property. The obstruction statute is designed to combat witness tampering or destruction of evidence, not to target litigants making flawed legal arguments about election fraud. Furthermore, the conspiracy-against-rights count rests on an antiquated Reconstruction-era statute that aimed to punish violent intimidation and attacks against Black Americans exercising their right to vote, as National Review argues.
In essence, even if you establish the factual basis of your case, the statutes themselves are inapplicable.
Prosecution: I have indeed read the National Review editorial, but allow me to direct you to former prosecutor Ken White’s comprehensive response. The crux of the matter is that you are describing what you wish the law to be, rather than what it currently is. For instance, your arguments regarding the fraud count do not align with the actual fraud statute we have charged. Additionally, National Review’s interpretation of the law is at odds with century-old court precedents.
In 1910, the Supreme Court stated that the definition of a conspiracy to defraud the United States “is broad enough to include any conspiracy intended to interfere, obstruct, or defeat the lawful function of any department of government.”
While you may believe that Section 1512, the obstruction statute, does not apply to this case, the United States Court of Appeals for the D.C. Circuit recently upheld our broader interpretation in a case that you yourself referenced. You are banking on the Supreme Court disagreeing with a decision made by a circuit court majority that included a judge who once clerked for Brett Kavanaugh.
Regarding Section 241, which prohibits conspiracy against rights, our interpretation aligns with generations of legal precedent…
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