Trump’s Election Defense: Sway One Juror With ‘Reasonable Doubt’

Erik Larson, Sabrina Willmer and Chris Strohm
·6 min read
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(Bloomberg) -- Donald Trump’s indictment over his attempts to overturn the 2020 election is the biggest challenge yet for his squad of lawyers, who’ve been hitting the airwaves to preview defenses for what could eventually be the most consequential criminal trial in US history.

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If Trump’s legal team can raise reasonable doubt in the mind of one juror — by blaming his lawyers or arguing that his false claims of election fraud were protected by the First Amendment, for example — the case brought by Special Counsel Jack Smith would collapse, forcing the government to choose between dropping the charges or retrying Trump.

Legal experts say the defenses are all long-shots, but not impossible. Trump’s attorney John Lauro has signaled that reasonable doubt is central to his strategy.

“The government, the Biden administration, would have to prove beyond a reasonable doubt that President Trump did not believe that he had won the election,” Lauro said on NBC’s Meet the Press on Aug. 6. “They will never be able to do that. And that’s why this prosecution is so ill-conceived.”

The basic US legal principle of reasonable doubt gives Trump’s lawyers plenty to work with, even if many of his critics see the case as a slam dunk. Convictions need to be unanimous, and one holdout on a jury can sink a case.

“One of the challenges in our system is that reasonable doubt is only sort of defined — it’s not statistical or numerical — and jurors have to form in their own minds what reasonable doubt is,” said Jennifer Rodgers, a former federal prosecutor in Manhattan who’s now a lecturer at Columbia Law School.

Criminal Intent

Trump is accused of conspiring to subvert the election by arranging groups of false presidential electors in swing states he lost, seeking a “sham” probe into the election by the Justice Department, and pressuring then-Vice President Mike Pence to refuse to certify Joe Biden’s victory.

The former president has pleaded not guilty as he seeks another term in the 2024 election.

The statutes Trump is accused of violating require the government to prove he had criminal intent, and Trump’s lawyers have already signaled that he couldn’t have meant to do anything wrong.

“It’s likely at trial his lawyers would argue he sincerely believed the election results were corrupt,” said David Sklansky, who teaches criminal law at Stanford University.

But even if Trump continued to believe the election was stolen, that wouldn’t give him legal cover for seeking out fake electors or giving false information to state election officials, according to Rodgers.

“That defense is expected and the special counsel will be ready for it,” she said.

First Amendment

It’s alleged in the indictment that Trump told “prolific lies” after the election to advance his efforts. Such comments can’t be used to tie him to a conspiracy because they’re protected by the First Amendment right to free speech, his lawyers claim.

Smith seemed to anticipate the free-speech defense in the indictment, saying Trump had a right “like every American” to speak his mind — even lie. But Trump doesn’t get a free pass to defraud the US, Smith said. Even so, a clever defense lawyer could try to split the statements from the alleged conspiracies to distance Trump from the so-called overt acts of his alleged co-conspirators.

“You can say anything you want and you can lie, but you can’t commit corrupt illegal acts,” said Robert Katzberg, a former federal prosecutor who is now counsel for Holland and Knight in New York.

Blame Lawyers

Trump is also likely to argue that he was surrounded by “top notch” lawyers and advisors who told him there was massive fraud and that he won the election, said Richard Serafini, a criminal defense lawyer in Florida who was previously a Justice Department attorney.

“Whether or not that carries the day in court depends a great deal on the evidence the government has showing what he knew, like if he acknowledged to some people that he lost the election,” Serafini said.

Smith appears to have anticipated this defense, too, by showing in the indictment that Trump made a “concerted effort” to reject advice from his White House lawyers and sometimes cut them out of the decision-making process, according to Daniel Richman, a former federal prosecutor in Manhattan who now teaches at Columbia Law School.

“He was picking and choosing among the lawyers and rejecting the advice of those best placed to give it,” Richman said. “It is as if a corporate executive charged with fraud refused to credit the legal advice of her general counsel and went with the advice a rando on the street gave.”

Trump On The Stand

The biggest risk for this strategy is that it may hinge on Trump taking the witness stand to explain his dealings with his lawyers, Katzberg said.

“There’s no worse witness in the world,” he said.

Jon Sale, a former federal prosecutor who served as special counsel during the Watergate investigation against former President Richard Nixon, said Trump could theoretically take the stand and risk it all. If Trump could “charm one juror, that’s all it would take,” he said.

Due Process

One of Trump’s strongest defenses, which he could use to seek dismissal of the charges before a trial, relates to his six unindicted co-conspirators — including lawyers Rudy Giuliani, Sidney Powell and John Eastman, according to Sale.

Trump’s lawyers could argue that Smith deprived him of his due process rights by strategically not indicting the alleged co-conspirators in order to dissuade them from testifying on Trump’s behalf, out of fear they could incriminate themselves under oath, said Sale, who said he turned down an offer to be on Trump’s legal team due to other professional obligations.

“Usually you would indict the unindicted co-conspirators first,” Sale said. “I can’t think of a case where you indict the person at the top first.”

Read More: Trump’s ‘Very Sad Day for America’ Went About as Expected

Venue

Trump and Lauro have already talked about trying to move the case out of Washington — which overwhelmingly voted against the former president in 2016 and 2020 — proposing West Virginia has a suitable alternative.

“We would like a diverse venue, a diverse jury,” Lauro said Aug. 6 on CBS’ “Face the Nation. “One that reflects the characteristics of the American people. It’s up to the judge. I think West Virginia would be an excellent venue to try this case.”

Venue change motions are difficult to win. Judges in Washington’s federal court — including US District Judge Tanya Chutkan, who will preside over Trump’s case — repeatedly rejected similar arguments of general political bias and pretrial publicity from defendants charged in the Jan. 6, 2021, Capitol attack, saying those aren’t specific enough reasons to leave the nation’s capital.

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