By Erik Larson, Sabrina Willmer and Chris Strohm
The indictment of Donald Trump for his attempts to overturn the 2020 election poses a significant challenge for his team of lawyers, who have been showcasing their defense strategies on various media platforms. This trial has the potential to be the most consequential criminal trial in US history.
If Trump’s legal team can plant reasonable doubt in the mind of a single juror—by shifting blame onto his lawyers or arguing that his false claims of election fraud were protected by the First Amendment—Special Counsel Jack Smith’s case would crumble. This would force the government to decide between dropping the charges or retrying Trump.
While legal experts consider these defenses as long shots, they are not entirely impossible. Trump’s attorney John Lauro has indicated that reasonable doubt will play a central role in their strategy.
“The government, the Biden administration, would have to prove beyond a reasonable doubt that President Trump did not believe he had won the election,” Lauro stated during an appearance on NBC’s Meet the Press. “They will never be able to do that. And that’s why this prosecution is so ill-conceived.”
The concept of reasonable doubt forms the basis of Trump’s defenses, providing ample room for his lawyers to maneuver, despite many critics believing that the case will be an open-and-shut one. In a unanimous decision, a single juror’s dissent can sink the entire case.
“One challenge within our legal system is that reasonable doubt is only partially defined—it is not statistical or numerical—and jurors must individually determine what constitutes reasonable doubt,” explained Jennifer Rodgers, a former federal prosecutor and current lecturer at Columbia Law School.
Criminal Intent
Trump stands accused of conspiring to undermine the election by orchestrating groups of false presidential electors in swing states where he lost, initiating a “sham” investigation into the election by the Justice Department, and pressuring then-Vice President Mike Pence to reject the certification of Joe Biden’s victory.
The former president has pleaded not guilty as he seeks another term in the 2024 election.
The statutes Trump is alleged to have violated require the government to prove his criminal intent, and his lawyers have already indicated that he did not have any malicious intentions.
“It is likely that his lawyers would argue that he genuinely believed the election results were corrupt,” said David Sklansky, a criminal law professor at Stanford University.
However, even if Trump continued to hold the belief that the election was stolen, it would not justify his pursuit of fraudulent electors or the dissemination of false information to state election officials, according to Rodgers.
“This defense is expected, and the special counsel will be prepared for it,” she stated.
First Amendment
The indictment alleges that Trump made numerous “prolific lies” after the election to further his objectives. Trump’s lawyers claim that these statements cannot be used to connect him to a conspiracy, as they are protected by his First Amendment right to free speech.
Smith seems to have anticipated this defense by acknowledging in the indictment that Trump, like every other American, has the right to express his opinions, even if those opinions are false. However, Smith emphasizes that Trump cannot use this as a defense for defrauding the United States. Nevertheless, a clever defense attorney could attempt to separate Trump’s statements from the alleged actions of his co-conspirators to create distance between them.
“You can say whatever you want and lie, but you cannot engage in corrupt and illegal activities,” explained Robert Katzberg, a former federal prosecutor now working as counsel for Holland and Knight in New York.
Blaming the Lawyers
Trump is also likely to argue that he was advised by “top-notch” lawyers and advisors who informed him of extensive fraud and his victory in the election, according to Richard Serafini, a criminal defense lawyer in Florida who previously served as a Justice Department attorney.
“Whether or not this defense will hold up in court depends on the evidence the government can present regarding what he knew, such as whether he acknowledged to certain individuals that he lost the election,” Serafini commented.
Smith seems to have anticipated this defense by demonstrating in the indictment that Trump purposefully ignored advice from his White House lawyers and excluded them from the decision-making process, stated Daniel Richman, a former federal prosecutor at Columbia Law School.
“He selectively chose among lawyers and disregarded the advice of those who were best qualified to provide it,” Richman explained. “It is akin to a corporate executive charged with fraud who disregards the legal counsel provided by her general counsel and instead opts to follow the advice of a random person on the street.”
Trump Taking the Stand
The biggest risk associated with this defense strategy is that it relies on Trump taking the witness stand to explain his interactions with his lawyers, according to Katzberg.
“There is no worse witness in the world,” he remarked.
Jon Sale, a former federal prosecutor who served as special counsel during the Watergate investigation against former President Richard Nixon, believes that Trump could theoretically take the stand and risk it all. Sale suggests that if Trump could “charm one juror, that’s all it would take.”
Due Process
One of Trump’s strongest defenses, which could potentially lead to the dismissal of charges prior to trial, revolves around his six unindicted co-conspirators, including lawyers Rudy Giuliani, Sidney Powell, and John Eastman, according to Sale.
Trump’s lawyers may argue that Smith violated their client’s due process rights by intentionally avoiding indicting these alleged co-conspirators, effectively discouraging them from testifying in Trump’s favor due to the risk of self-incrimination under oath. Sale, who declined an offer to join Trump’s legal team due to other professional commitments, highlights that “usually, the unindicted co-conspirators are indicted first. I cannot recall a case where the person at the top is indicted before the others.”
Venue
Trump and Lauro have already discussed the possibility of changing the trial’s venue, as they view Washington as overwhelmingly opposed to the former president, both in the 2016 and 2020 elections. They have proposed West Virginia as a suitable alternative.
“We would prefer a diverse venue with a diverse jury,” Lauro stated in an interview. “One that reflects the characteristics of the American people. The decision lies with the judge. Personally, I believe West Virginia would be an excellent venue for this trial.”
Motions for a change of venue are challenging to win. Judges in Washington’s federal court, including US District Judge Tanya Chutkan—who will preside over Trump’s case—have consistently rejected similar arguments regarding general political bias and pretrial publicity in cases related to the Capitol attack on January 6, 2021, stating that these reasons are insufficient to justify a change of venue from the nation’s capital.
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