In the face of multiple indictments, Trump and his lawyers are offering a multitude of theories to defend his actions. From exercising his Constitutional rights to the petulant claim of a two-year-old screaming “MINE!” repeatedly when they can’t get their way, they are pushing a scattershot of reasons why everyone should just move on.
Trump has rarely been held accountable for his actions. And when he has, he would just throw money at the problem or declare bankruptcy, thus making the issue magically disappear. Except this time, he’s facing real consequences for his actions in that the possibility of actual jail time is an absolute certainty if he is found guilty on many of the charges he’s facing.
What are some of the proposed defenses? MAGA Republicans have suggested the approach presented in The Coasters’ song, Charlie Brown. They are asking why everybody’s always picking on their favored candidate. This completely ignores any idea that Trump bears responsibility for his actions.
But that’s just one of the excuses those who support him are trying to make. There are so many others.
The January 6th Indictment and the First Amendment Defense
The media has dubbed the federal case alleging election interference as “The January 6th Case”.This is to differentiate from the Georgia election meddling case. With so many legal issues to keep track of, even they need a scorecard.
Trump’s lawyer in this case, John Lauro, has indicated they will be putting up a First Amendment defense to counter the charges. This is even though the indictment explicitly states that Trump’s statements were indeed protected by the First Amendment. Nevertheless, Lauro has claimed, in multiple interviews, that this is the path he intends to take when the case comes to trial.
Lauro made a few more rather dubious claims in a Quixotic effort to defend Trump’s actions in trying to overturn the election results. He stated that Trump’s comments to his Vice President were merely an “ask”. Like Trump was thinking out loud and absent-mindedly asked Pence if he could overturn the election results or, at the very least, delay their certification.
News Flash: when the boss asks you to do something, that’s an order. Imagine your boss “asking” you to carry out a task and you respond, “I’ll think about it”? That’s a sure trip to the unemployment line in most cases.
Lauro went on to explain that Trump’s comments to Pence were merely “aspirational”. Trump was only wishing Pence would do something, and wondered if there could be a ten-day pause in certification of the results so the states would have the opportunity to reconsider their choices.
That would have pushed the certification to a scant four days until Inauguration Day. It doesn’t take a rocket scientist to imagine what Trump and his cronies would be doing in those ten days.
Lauro closed out the interview with the stunning declaration that at least there was a peaceful transfer of power. This caused interviewer Dana Bash to burst out laughing. She asked if Lauro saw what happened on January 6th. He retorted in the classic Pee Wee Hermanesque style of “I know you are, but what am I?” by countering with, “Did you?”
Bash wisely ignored the comment and moved on.
Using the First Amendment defense is risky given that Trump’s past comments have caused individuals to harm or threaten those who oppose him. They have even invoked his name to defend their actions. Those who attacked the Capitol on January 6th stated that they were following Trump’s orders.
Trump’s rhetoric that incited the January 6th insurrection began long before that fateful date. During the presidential debates, he was asked to denounce White supremacists. Instead, he instructed them to “Stand Down and Stand by”. They took it to mean they were to be ready to defend what they viewed as a democracy when so ordered. They took his December 19th Tweet, which invited them to Washington on January 6th, to be a further indication that Trump was inciting them to commit violent acts in his name.
Trump called his comments that inflamed the crowd a political speech and declared he was within his First Amendment rights to make the outlandish statements he uttered. He exhorted the assembled crowd to march on the Capitol to prevent the certification from taking place. Following his directions, they assaulted multiple members of law enforcement as they attempted to do his bidding.
They were chanting “Hang Mike Pence!” and were heard calling for then-House Speaker Nancy Pelosi with the intent, as one of the insurrectionists claimed, to shoot her “in the friggin brain”? Another even had multiple zip ties which he was prepared to use to bind lawmakers and force them to vote the way Trump wanted.
All of this violence led to the deaths of five members of the law enforcement community along with one of the insurrectionists who tried to breach Congressional offices. And they were all the result of Trump exercising his First Amendment rights.
The RNC termed it “Legitimate political discord”.
There are other instances where Trump’s exercise of his First Amendment rights has resulted in harm to others. Nancy Pelosi’s husband, Paul, was attacked by someone who was seeking to force the former Speaker of the House to confess to Trump’s lie that the election was stolen.
Trump was exercising his First Amendment rights when he posted former President Barack Obama’s DC address on his social media site. This led to an armed man, who was also wanted in connection with his participation in the January 6th insurrection, to attempt to attack the former president.
A Utah man was shot and killed by the FBI when he tried attacking agents, while armed with an AR-15 assault rifle, who were there to arrest him for making threats against President Biden. He also made threats against Vice President Harris, Attorney General Merrick Garland, Manhattan DA Alvin Bragg, and New York Attorney General Letitia James.
Ironically, the FBI became aware of the threats because he had posted them on Trump’s own social media platform, where he had been encouraged to act by Trump’s repeated comments, which were protected by the First Amendment.
Because of his constant threats, Judge Tonya Chutkan, who is presiding over the January 6th trial, has imposed limits on what Trump can share. She has had to employ added security due to threats from Trump supporters including a woman from Texas who was arrested for threatening to kill the judge if Trump lost the 2024 election.
She also issued a warning that any inflammatory language or threats made against potential witnesses could result in an earlier trial date to avoid contaminating a potential jury pool. Chutkan has had to request added security due to threats she is receiving because of her involvement in the case. Jack Smith is proposing a trial date of January 2, 2024, while Trump’s attorneys have suggested the trial be delayed until April 2026, a full 2 ½ years away. Chutkan has scheduled a hearing for August 28th to presumably set a date.
The fact that Judge Chutkan is an Obama appointee, and the Liberal-leaning of Washington, has Republicans demanding a change of venue in this case. They claim Trump can only get a fair trial if the judge in the case is one appointed by a Republican, hopefully, Trump.
As crazy as it sounds, it’s their First Amendment right to make such a statement.
As serious as the allegations in the indictment are, they fail to address one key element: That Donald Trump incited an insurrection aimed at overturning legal election results. If he were to be found guilty of this, he would be prevented from running for president or any other office under the provisions of the Fourteenth Amendment.
It’s unknown why Jack Smith didn’t pursue this avenue.
Secret Documents and the Magical MAGA Man-Child
Imagine a case so open- and -shut that you caught the perpetrator red-handed with the stolen goods. Now imagine you allowed them to return the stolen property without facing any charges, but you refuse because you falsely claim it’s yours in the first place, so you are arrested and the stolen property is recovered. But you continue to demand they give it back.
That’s the case involving the documents that Trump took with him to Mar a Lago in a nutshell. Seems pretty simple, doesn’t it?
Except…
We live in hyper-partisan times. The case is being tried in Ruby-red Florida before a Trump-appointed judge who obtained her post not through experience, of which she has little, but on her alignment with pro-Trump policies. The judge, Aileen Cannon, has already made a ruling regarding the handling of the documents in Trump’s favor, only to have it turned over on appeal. Who is to say she won’t let her partisan views seep into her judicial decisions or somehow taint the jury pool?
Speaking of the jury, the pool of potential jurors will be selected from Trump’s fellow Floridians who overwhelmingly voted for him in 2016 and again in 2020. That, and the overwhelming publicity given to the case will make finding an unbiased jury difficult if not impossible. Yet, unlike the January 6th case, Trump’s lawyers aren’t seeking a change of venue. Why should they when they stand a better chance of acquittal with this judge and jury?
Of course, Trump is seeking special treatment in being allowed to review the evidence in this case. He is asking the judge to permit him to re-establish a sensitive compartmented information facility, or SCIF at his Mar-a-Lago resort like the one he had when he was in office.
The prosecution requested a hearing to discuss a protective order, like the one in the January 6th case. They are seeking restrictions on the handling of the documents involved in the case. Judge Cannon had set a hearing date but canceled it in favor of a closed meeting to be held at a yet unspecified time and place.
The defense in this case would be laughable if the implications weren’t so deadly serious. There’s the petulant child defense where Trump is acting like the man-child, he is by declaring he had the right to take the multiple boxes of documents because they contained personal items, such as ties and golf shirts, along with newspaper clippings that have nothing to do with national security. So, of course, he had the right to take whatever he wanted to because they belong to him.
There’s the magical de-classification defense where Trump declares he can declassify anything simply by thinking about it. Several agencies have debunked this defense by pointing out there is a specific process for declassifying anything, and no one can unilaterally declare a document declassified without going through a series of procedures.
And there’s Trump’s misinterpretation of the Presidential Records Act that he claims gives him the right to decide which documents he can keep. This is a direct contradiction of the National Archives law which states that any documentation produced during any administration is the property of the American people and not any single person. Trump backs his reasoning by falsely stating “Well, Obama did it”, which, of course, has his followers collectively nodding their heads.
Since the goal of any defense lawyer is to cloud the facts of the case to create reasonable doubt, it’s entirely likely that Trump could escape punishment in what should be the most open-and-shut case since the OJ trial. And we all know how that turned out.
Georgia and the Mafia on my Mind
When it comes down to it, the case involving election interference in the 2020 presidential election couldn’t be clearer. In yet another “perfect phone call” Trump is heard telling Georgia Secretary of State Brad Raffensperger to “find” just one more vote than needed to declare him the victor in the Georgia race. It was part of a highly coordinated effort by multiple individuals to overturn the election results.
As a result, Trump and 18 others are being charged under the Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO. It has typically been used to prosecute members of organized crime which is why Trump and others stand accused of directing a criminal enterprise aimed at denying the will of the voters to be accepted.
Trump has been called Teflon Don due to his ability to escape the consequences of his actions. It was a nickname first given to mobster John Gotti who was also charged under the RICO Act. But that’s not where the similarities end. Like organized crime bosses, those in Trump’s orbit indicated that he liked to speak in code so he couldn’t be held accountable.
So, when Mike Pence was asked if he ever heard Trump say he knew he lost the election, Pence replied that he didn’t recall him doing so. It’s a common defense tactic lawyers use when they don’t want their client to divulge incriminating information, plus Trump may not have uttered that exact phrase, so Pence is carefully parsing his response to narrowly answer the question.
There is no small amount of irony in the fact one of Trump’s co-defendants is former New York prosecutor Rudy Giuliani. Before being America’s Mayor in the aftermath of the 9/11 attacks, Giuliani made his name by piling up convictions of multiple organized crime members under his state’s RICO statute. Now he could be convicted under the very law he spent years championing.
With so many defendants, it promises to be a difficult case to prosecute. Yet Fulton County District Attorney Fani Willis, who has been repeatedly attacked by Trump via his social media platform, has determined that she will try each of them together. She has also requested a speedy trial to begin on March 4th of 2024, which is only a day before the Super Tuesday presidential primaries.
The Georgia case is unique from the other three trials Trump is facing. First, the scope and breadth of the charges and those involved surpass any other case. Second, the case is being tried on the state level, so even if Trump wins reelection, he would be unable to pardon himself since presidential pardons are limited to federal crimes. This is why those connected to the case are requesting that they be tried in federal court rather than face justice in Georgia.
That’s not stopping Georgia Republicans from seeking a pardon for Trump should he be convicted. But such an action is a bit more difficult than a presidential pardon. Rather than the governor or any single individual granting a pardon, Trump would have to go before the State Board of Pardons, but only five years after he has served his sentence and doesn’t have any other legal issues plus has paid any fines he’s faced. So, that appears unlikely.
Another unique defense strategy those within the former administration are using is to claim they cannot face charges because their actions were done within the scope of their governmental duties. It was not a strategy that worked during Watergate, but the ultra-Conservative Supreme Court might be willing to consider it.
Trump has been having difficulty getting lawyers in the multiple cases he’s dealing with. This will be even more challenging since several of his former attorneys have been named as co-defendants in this sprawling indictment. John Eastman, Sydney Powell, Jenna Ellis, and Rudy Giuliani spearheaded the effort to overturn the election. Now, they will have to deal with the consequences of their actions.
The judge in the case will almost certainly need to apply a protection order like the one in the January 6th case. In addition to Trump’s comments about the prosecutor, his supporters have released the identities and addresses of members of the Grand jury that brought the indictment. This could intimidate jurors in the trial yet to come.
The sheer scope of the charges, in this case, makes it the most dangerous for Trump and the other defendants in terms of consequences. The fact a guilty verdict cannot be negated by a presidential pardon makes it even more likely Trump will put up a vigorous defense.
This is why Trump announced he would be holding a news conference to release a report that he promised would completely exonerate him of all charges in the case. A few days later, he canceled the news conference, saying it was on the advice of his attorneys, which is shocking since he rarely listens to them. Or it could be that the aforementioned report was a figment of his imagination. So, when his bluff was called, he had no choice but to cancel.
Porn Stars, Payouts, and Property
While the Stormy Daniels case may not be the most serious, it is unique in that it marks the first time an ex-president has ever been indicted. The charges are rather mundane for white-collar crimes. Bribery, tax fraud, and business improprieties aren’t usually front-page news unless the defendant is a high-profile individual, such as Donald Trump.
White-collar crimes can be difficult to prosecute, especially when you have a defendant who has spent a lifetime insulating himself from responsibility by having multiple layers of lawyers, accountants, and business associates who are very adept at being financially creative. Tax shelters, offshore accounts, dummy corporations, and shifting assets are only a few ways a savvy businessman can get around paying his fair share.
During the 2016 presidential debates, Hillary Clinton accused Trump of not paying his taxes for years. Rather than deny it, Trump simply retorted, “That makes me smart” as if it was something to be proud of.
It’s reminiscent of hotel magnate Leona Helmsley, who was dubbed “The Queen of Mean” for her treatment of her staff and other subordinates. She once remarked “Only little people pay taxes”. She was convicted of tax evasion and served 21 months in prison, which should be a lesson for Trump.
Trump is notorious for not paying his bills, yet people still seek him out. He will hire workers for a project, then refuse to pay them by making the excuse that the work was not completed to his satisfaction, and therefore he was going to withhold payment.
Most recently, following his arraignment in Florida on the document's charges, Trump triumphantly walked into a popular restaurant with his entourage in tow and loudly shouted “Food for everyone!”.Of course, people took it to mean he was buying meals for all of those in the restaurant. Of course, he walked out without paying a dime, leaving the patrons to fend for themselves. Rather than get upset, they shrugged it off while sheepishly acknowledging that they’d been had once again.
Such is his sway over his followers.
Given his spotty history at paying his attorneys, investigators were dubious of Trump’s claim of legal fees when it came to paying off Daniels for her silence to prevent word of their one-night-stand from becoming public during the 2016 presidential race.
As it turns out, Trump could have probably saved himself some money, and certainly some grief, by not making the payoff. His followers barely batted an eye when the infamous Access Hollywood tape was released. So, news of his affair would likely have a similar reaction.
While the payoff itself is troubling, it’s the allegation that the check that was its source came from campaign funds that create the greatest legal jeopardy. It follows a pattern that continues to this very day. Despite his claims of being a billionaire, he is constantly soliciting donations, usually from people who can least afford it. Upon leaving the White House, he established a shady “legal defense fund”. This is despite the fact the RNC had agreed to pay his legal fees.
Questionable financial arrangements are at the heart of the other part of this indictment. The indictment alleges that Trump would overstate the value of his properties when he needed collateral for his numerous loans, yet when it came to property taxes on the same properties, he would consistently lowball their worth to avoid paying more in taxes.
While much of the indictment focuses on multiple instances of falsifying business records about attempts to silence Stormy Daniels, they are by no means the only charges he is facing in this case.
With this being one of the least serious of the multiple legal issues Trump faces, Manhattan District Attorney Alvin Bragg has indicated a willingness to delay prosecution in this case in favor of allowing federal indictments to proceed.
What’s Next in Trump for the Defense?
When the appointment of a Special Prosecutor was announced, Lindsey Graham predicted there would be riots in the streets if Trump was indicted. Well, he’s been indicted, four times, and nothing has happened. The protests have been minimal even as Republican lawmakers have rushed to his defense.
Trump is crying his usual “Witch Hunt”, while he and his allies on the right are calling the indictments political persecution and election interference. They are engaged in whataboutism as they try to deflect from Trump’s legal woes by raising unsubstantiated claims of alleged bribery committed by President Biden. Yet allegations of evidence, including tapes of then Vice President Biden agreeing to accept these bribes, have failed to materialize.
That hasn’t stopped them from making references to the supposed Biden Crime Family, as an attempt to tie Hunter Biden’s legal issues to the president. All the while they are ignoring the multiple questionable lucrative financial dealings the Trump family has made during and after their time in Washington.
This is par for the course in the Republican playbook. They can claim election interference even as they are suggesting impeachment hearings against President Biden. They can cite Biden’s age as a disqualifying factor while ignoring that Trump is only a few years younger. They make an issue of Biden’s physical stamina and share images every time he has a fall from his bike or stumbles over sandbags on a stage, but ignores that Trump needs a golf cart to get him around a course and has trouble getting down a ramp. They mock Biden’s verbal gaffes, but fail to point out Trump’s multiple misstatements like the “oranges” of COVID among many others.
Trump has vowed that, even if convicted, he will continue to run from inside a prison cell. He’s trying to get the cases tried after the 2024 election to forestall this possibility, all part of his "Trump for the Defense" strategy.