Eisen/Kolb/Wertheimer in Slate: The Fundamental Flaws In Trump’s Expected Defense
This week, former President Donald Trump’s co-lead defense counsel John Lauro laid out a five-part structure of what is expected to be Trump’s defense in the case brought this week by Special Counsel Jack Smith.
Trump’s expected defense “is not to be taken lightly – even though, after much drama, we expect all five elements to fail,” Ambassador Norman Eisen (ret.), Joshua Kolb, and Democracy 21 President Fred Wertheimer write in an op-ed published today on Slate.
(Eisen at one time practiced criminal law with Lauro.)
The authors unpack, point by point, Trump’s potential defense in the case and the fundamental flaws in it.
For Trump to avoid serious risk of conviction and incarceration, the former President and his counsel will need some defenses that are far better than the ones laid out this week, the authors write. “The problem is that even for an experienced and talented defense lawyer like Lauro, we do not believe they exist.”
Read the op-ed on Slate or below.
Slate | 8/4/2023
One of Us Worked With Trump’s Defense Attorney. Here’s How Jack Smith Can Beat Him.
BY NORMAN L. EISEN, JOSHUA KOLB, AND FRED WERTHEIMER
With the filing of special counsel Jack Smith’s indictment, the prosecution of former president Donald Trump for 2020 election interference—perhaps the most consequential in our nation’s history—has begun. But so has Trump’s defense, with the post-indictment media blitz of co-lead defense counsel John Lauro (with whom one of us, Norm Eisen, used to practice criminal law). Lauro laid out the entire five-part structure of Trump’s defense, and it is not to be taken lightly—even though, after much drama, we expect all five elements to fail.
The leading edge of Lauro’s defense case was that the charges against the former president violate his First Amendment rights by criminalizing political speech. Though this argument has become a favorite talking point of Trump’s defenders, it is a fundamentally flawed way of looking at the indictment.
The charging document goes out of its way to reaffirm that Trump, like anyone else, had the right to publicly question the results of the 2020 election. And Trump is not being charged with a crime for that protected political speech. He’s being charged with defrauding the United States, attempting to obstruct the electoral count on Jan. 6, and attempting to deprive millions of Americans of the right to have their votes counted.
Some of Trump’s words, like his infamous 2:24 p.m. tweet targeting Vice President Mike Pence for violence, are integral to those crimes, and so the First Amendment is inapplicable. Just like any other defendant, Trump is not immunized from criminal liability just because he committed his crimes in part by talking. A bank robber cannot claim the protection of the First Amendment because he spoke the words “stick ’em up.” Trump can legally lie about how nice the apartments are in Trump Tower, but if he tries to convince someone to buy one of those apartments based on those lies, he’s committing fraud.
Lauro’s next move after wrapping his client in the Constitution was to proclaim Trump’s good faith. Trump genuinely believed, the argument goes, that the election was stolen, so he could not have formed the corrupt intent to commit a crime. This defense is factually and legally unsustainable. The indictment explains in detail that Trump knew that he lost the election and pushed his scheme forward anyway. Trump was repeatedly told that he had lost the election and that there was no evidence of widespread fraud by high-ranking officials at the Department of Justice, including his own attorney general, his campaign staff and political advisors, and many of his own attorneys. Trump is alleged to have repeatedly acknowledged in private that he lost the election, in stark contrast to his public statements embracing conspiracy theories.
And even if Trump did believe he won, that doesn’t allow him to exercise vigilante justice, as he did, and break the law. Returning to our bank robbery example, I may think the bank owes me money, but I’m not allowed to reach my hand in the teller’s drawer and take it.
That brings us to the third element of Lauro’s defense: that his constitutionally-minded good-faith client was also relying on the advice of counsel when he helped manufacture fraudulent slates of electors, urged state officials to certify those fraudulent slates of electors, and pressed Vice President Mike Pence to count those fraudulent slates.
But Trump cannot successfully invoke the advice-of-counsel defense because evidence seems to suggest he did not honestly rely on that advice. The legal theories he invoked, including the view that the vice president can unilaterally decide the results of the election, are absurd on their face. And many reputable lawyers, including White House counsel Pat Cipollone, told him so. No one—and especially not a person who had occupied the highest office in our constitutional democracy for nearly four years—could believe in good faith that the Constitution gives the vice president the monarchical power to decide whether the vice president himself and the president won reelection.
Moreover, the advice-of-counsel defense does not apply if the counsel was “integrally involved in the sham operation.” That is certainly the case here. Indeed, the indictment includes the attorneys on whom Trump allegedly relied for advice—John Eastman, Rudy Giuliani, and Kenneth Chesebro—among the uncharged co-conspirators.
Trump cannot evade criminal prosecution just because a few of the co-conspirators with whom he concocted his scheme happen to be lawyers. If it were otherwise, clients could always evade prosecution simply by hiring attorneys to conspire with them.
Finally, in perhaps his most audacious defense of Trump, Lauro suggested that the trial should be delayed for years because the government took years to investigate it, with the indictment coming two and a half years after Jan. 6, 2021. This argument is absurd. Criminal indictments often come years after the crimes charged in them were committed.
The sensible reason for that is that prosecutors—who do not have all the information about the crimes that the perpetrators possess—must investigate thoroughly to ensure that the law and the evidence support the prosecution. In this case, the House Select Committee on Jan. 6 did a lot of the heavy investigative lifting in 2021 and 2022, before the Department of Justice fully took the baton. Critically, the law places a single limit on the timing of criminal prosecutions: statutes of limitations, which are clearly satisfied here.
Lauro—a veteran criminal defense lawyer—knows this as well as anyone. So does D.C. District Judge Tanya S. Chutkan, who will be handling this case. Don’t expect her to take this argument for delay seriously.
Apart from the demand for reciprocal delay, these are non-frivolous defense arguments. They will consume significant amounts of public attention and court time in the pretrial phase in the months ahead and at trial. The clashes over them will be vivid.
But they are ultimately unavailing. And for Trump to avoid serious risk of conviction and incarceration, he and his counsel will need some defenses that are far better. The problem is that even for an experienced and talented defense lawyer like Lauro, we do not believe they exist.
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