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What the response by Trump's lawyer tells us about the indictment's power
While Trump has been lashing out on social media, his lawyer has made it clear he has a weak defense, and that running out the clock is the only option
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Donald Trump’s not-very-good lawyer, John Lauro, knows that Trump has a weak case to defend against the special counsel’s latest indictment, which should scare the daylights out of him and Trump.
That’s because the indictment isn’t about incitement and inspiring an insurrection, which is what Trump, his lawyers and his allies expected. The heart of it is about the conspiracy to overturn the 2020 election, using lies and ultimately fueling—and exploiting—the violence that took place. It’s a subtle but substantial difference.
It defangs the "free speech" defense that Trump and his lawyers and allies have been rehearsing for months—and to which they’re clinging because they have little else. As I noted on Wednesday:
"Political speech now has been criminalized," Lauro told Fox. But this is not about speech—it’s about actions. The indictment actually states clearly that Trump "had a right, like any American, to speak about the election, and even to claim, falsely, that there had been outcome-determinative fraud, and that he won."
But, as the indictment says, that doesn’t allow him to pursue "unlawful means of discounting legitimate votes and subverting the election results."
Now even Bill Barr, Trump’s former attorney general and top henchman, is blasting Lauro’s argument:
Barr told CNN's Kaitlan Collins the Department of Justice was "not acting to weaponize the department by proceeding against the president for a conspiracy to subvert the electoral process" as Trump and his allies had claimed ahead of the former president's arraignment Thursday in the Jan. 6 indictment — one of three he faces.
"He can say whatever he wants. He can even lie. He can even tell people that the election was stolen, when he knew better," Barr said of Trump.
"But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech. So, free speech doesn't give you the right to engage in a fraudulent conspiracy."
Another defense we’ve heard from Lauro is that Trump was listening to advisers—like attorney John Eastman, a co-conspirator in the indictment. But this doesn’t fly at all. Many more advisers—White House, Justice Department, and Homeland Security officials, as opposed to the handful of "crackpot lawyers" to whom Mike Pence referred—were telling him there was no fraud.
And this is Trump, after all, the man who tells us he’s a "genius" and is the smartest guy in the room. He can’t now tell us he’s the victim of charlatans who duped him—especially after having respected experts tell him otherwise, including Republican election officials in the states he contested.
Beyond that, it doesn’t matter what Trump truly believes. It doesn’t give him the right to engage in illegal means and a broad conspiracy to overturn the election. He could challenge results in court, which he did and lost. But launching a scheme to send fake electors to Congress while sowing doubt about the election among his supporters to get support for that illegal scheme—while he knew the truth—is certainly something for which he can and should be charged.
Last night, Lauro, in a baffling set of moments, even admitted in two separate interviews to one of the key charges in the indictment—and this really shows his desperation—that Trump did ask Mike Pence to "pause" the certification of an election for over 10 over days. Per the Daily Beast:
An MSNBC panel was shocked by a pair of television interviews Thursday where Donald Trump lawyer John Lauro seemed to confirm an allegation contained within the Jan. 6-related indictment of the former president.
Lauro had told Fox News host Laura Ingraham earlier in the evening that, leading up to Jan. 6, Trump voiced his approval for Pence to send the election back to the states rather than have the Electoral College vote be certified.
"What President Trump said is, ‘Let’s go with option D,'" Lauro said on The Ingraham Angle. "Let’s just halt, let’s just pause the voting and allow the state legislatures to take one last look and make a determination as to whether or not the elections were handled fairly. That’s constitutional law. That’s not an issue of criminal activity."
But that is not "constitutional law" and is in fact a violation of the 12th Amendment of the Constitution and the Electoral Count Act of 1887. The Constitution gives no power to the vice president to stop or pause the certification. It mandates that the "president of the Senate" open “all the certificates,” the envelopes containing electors sent by the states (and which the states have confirmed and finalized), and that they be counted by members of Congress with him. That’s it.
The vice president, by the way, is the president of the Senate for this purpose only if he is actually present. If he is not present—let’s say he’s ill or can’t make it for some other reason—the Senate president pro tempore (who was Senator Chuck Grassley) is the “president of the Senate” that day.
So it’s not even the “vice president” who has this ceremonial role, but the “president of the Senate,” who may in fact not be him or her at any given moment. The Electoral Count Act of 1887, passed because there was an awareness that the Senate president might have partisan motives, defined even further what the Constitution states. Its purpose was "to drain away as much power as possible from the Senate president, whom the [law] appoints to preside at the joint session when Congress counts the votes."
In 2022, Congress again made it even more clear, following what happened in 2020 with Trump pressuring Pence, that the vice president has no power over the votes and no role other than ceremonial. It sounds like Lauro is going to try to argue that it was previously vague—and this is why it was further defined in 2022, something Trump has argued as well—and hope that flies with the Supreme Court. But even the most conservative reading of the Constitution and the 1887 Act doesn’t give power to the vice president to actually stop the counting, pausing the vote for 10 days.
What Lauro did at the arraignment yesterday, demanding the trial be put off and claiming the government had years to prepare—even though this was unusual to do with the magistrate judge during the first appearance and usually is done in a motion before the presiding judge—is a key to what the true plan is. Maggie Haberman at the New York Times—the Trump whisperer—tweeted yesterday that, in private, Trump’s lawyers are blunt that their true goal is to win the 2024 election and have the indictments "disappeared."
That means they know they have a very weak defense. Jack Smith seems determined to have this trial completed before the election—which we have to make sure Trump loses, whether the trial happens by then or not—and presiding Judge Tanya Chutkan is no nonsense when it comes to January 6th defendants. So let’s hope this moves as quickly as possible.