Trump’s legal strategy is aimed squarely at the public

• Rahul Gandhi was reinstated as an MP for India’s Congress Party.
• Ukraine said a woman had been arrested in connection with a plot to kill Zelensky.
• Baghdad ordered an investigation into how a bear escaped from an Iraqi plane in Dubai on Saturday. 

Badfellas

Dewayne Levesque was a strip club manager charged with abetting prostitution. Ralph Paul left a restaurant without paying the bill because he didn’t get enough seafood on his pasta. Tim Donaghy bet on NBA basketball games that he was refereeing. 

They all had John Lauro as a lawyer.

So what? So does Donald Trump, and Donaghy says Trump “is in good hands”.

Lauro is a criminal defence attorney from Tampa, thrust into the klieg light of American presidential politics with the task of fighting off conspiracy charges that divide the US into two vast camps: the 70 per cent of Republican voters who still believe the 2020 election was stolen, and everyone else.

Lauro’s job is complicated by the need to present his client as a rational sceptic rather than a catalyst of mass psychosis. It’s made easier by only having to instil reasonable doubt, and only in one juror. 

To that end, on Sunday, he went public with a six-point Trump defence strategy on all five major US news networks. The strategy is a work in progress but its essentials are clear:

1. Delay. Special prosecutor Jack Smith wants a “speedy” trial (a technical term meaning one starting within 70 days of his indictment being filed) but Lauro will do everything to slow it down and yesterday he formally contested Smith’s bid to keep evidence from the media for fear of scaring witnesses. 
2. Invoke Biden. Lauro routinely asserts the January 6th fraud and conspiracy charges have been brought by the Biden administration rather than the Department of Justice. News anchors push back but they can’t deny the attorney general is a Biden appointee.  
3. Invoke free speech. The kernel of Smith’s case is the charge that Trump asked his vice president to overturn the election, but “asking is not action,” Lauro says. “It’s core free speech… asking is aspirational.”
4. Invoke belief. Smith has to establish “corrupt intent” but Lauro says he’ll show his client truly believed the election was fraudulent and was arguing in good faith “for the truth to come out in that election cycle rather than the truth to be denied”. There is plenty of evidence to the contrary but who really wants to get inside Trump’s head?
5. Invoke counsel. Lauro will say Trump was relying not only on his gut but the advice of several of his lawyers including the “esteemed constitutional scholar” John Eastman (who’s facing disbarment in California for advancing the idea of “alternative” electors from swing states elbowing aside the real ones to nullify votes for Biden).
6. Move. Trump says he can’t get a fair trial in overwhelmingly Democrat DC. He wants it moved to “an impartial Venue, such as the politically unbiased state of West Virginia!” (which voted 69 per cent to 30 for him over Biden in 2020). Lauro seems ready to ask for a change of venue, though he hasn’t backed Trump’s call to replace Judge Tanya Chutka, an Obama appointee who’s already sentenced dozens of January 6th rioters.

It’s “a smorgasbord defence”, says Pace University’s Professor Bennett Gershman. Lauro is throwing everything at it and hoping something sticks. 

Some elements may play well with large parts of the public but not in court. Republicans will agree this is a political prosecution, but Lauro will struggle with the free speech argument: 

• The indictment goes out of its way to acknowledge Trump’s right to “speak publicly about the election” and even to make false fraud claims. 
• He’s charged with plotting to overturn the election, not lying about it, and that is not protected speech. The indictment “is so carefully drafted… to avoid 1st Amendment problems that I think it’s bullet-proof,” says John Dean, who helped prosecute Nixon.

The bid to move the trial will soak up time but is unlikely to succeed: lawyers for the January 6th rioters have already tried and failed because Washington is where the insurrection happened. And the “good faith” defence (point 4 above) is undermined by Trump’s own words to then-Vice President Mike Pence when he refused to cooperate with Eastman’s scheme: “Too honest.”

It’s hard to find a legal mind in the US unwilling to concede the strength of Smith’s indictment. But where it leads, no one can tell, especially if Trump’s convicted and still runs. As Gershman says: “We’re winging it.”

Photograph Getty Images

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