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Trump lights his legal defenses on fire on Meet the Press
This is why you shut the hell up when you're facing criminal charges.
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Last week, Kristen Welker kicked off her tenure at NBC’s “Meet the Press” by interviewing Donald Trump. It was roundly criticized as an epic shitshow, with the former president spewing an endless stream of lies mostly unchecked by the hapless host.
But Welker’s credibility wasn’t the only thing that got steamrolled. Trump’s planned defense in the election interference cases took quite a beating as well.
Trump’s legal defense: I was just listening to my lawyers
Trump has long broadcast his plan to blame his lawyers for the plot to disrupt the January 6, 2021, certification of President Biden’s electoral win. Technically, this is called an “advice of counsel” defense, although Trump isn’t big on precise terminology. Instead he babbled in a pre-indictment Truth Social post that “My attorneys had a productive meeting with the DOJ this morning, explaining in detail that I did nothing wrong, was advised by many lawyers, and that an Indictment of me would only further destroy our Country.”
His lawyer John Lauro was more direct during a post-indictment media blitz which came to an abrupt halt when the government pointed out that it’s against local rules for attorneys to speak publicly in ways that could prejudice the jury pool.
“[Trump] got advice from counsel — very, very wise and learned counsel — on a variety of constitutional and legal issues,” Lauro told NPR.
“You’re entitled to believe and trust advice of counsel,” Lauro said on NBC. “You had one of the leading constitutional scholars in the US, John Eastman, say to President Trump, ‘This is a protocol that you can follow, it’s legal.’”
“He had advice of counsel, a very detailed memorandum from a constitutional expert,” Lauro repeated on Fox, referring to the notorious memos drafted by Eastman laying out a variety of strategies to substitute Trump’s fake electors for Biden’s real ones at the January 6 certification.
Advice of counsel is an affirmative defense, which means that it serves to negate liability. Essentially it boils down to the defendant saying, “Yeah, I did the crime, but my lawyers told me it was cool, so I don’t have the required ‘intent’ to break the law. Please don’t put me in jail!”
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As Lauro told Welker’s predecessor Chuck Todd, “In order to have a violation of law you have to have criminal intent. And in this case, corrupt intent. And what that means is that you have to have some desire to do something unlawful. If your — if your attorney is telling you that you have a right to petition Congress, then that completely eliminates any criminal intent. So under those circumstances, you are not violating the law.”
Eagle-eyed observers will note that Trump did more than “petition Congress.” He dispatched his campaign to assemble slates of fake electors who submitted fraudulent electoral certificates, and then he pressured Mike Pence to unilaterally reject the real electors in violation of the Constitution and the Electoral Count Act. That’s why he's charged with obstruction of an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy to defraud the United States, as well as conspiracy against rights under a civil rights statute meant to protect access to the ballot. But Lauro misstates the law here as well as the facts. Under an advice of counsel defense, Trump would still have violated the law — he’d just get a pass because he didn’t have the requisite mens rea for criminal liability.
But among legal scholars, there’s been broad skepticism that the advice of counsel strategy would work, not least because every reputable lawyer in Trump’s orbit told him there was no major election fraud and it would be wildly illegal for Mike Pence to simply reject electoral votes.
“I don't think that dog is going to hunt,” former attorney general Bill Barr told CNN’s Kaitlan Collins last month.
“First, as to people who had some knowledge of whether or not there was fraud, everyone was telling him that the election was not stolen by fraud. And then, as to the issue of what he could do legally, at that point … he wouldn't listen to all the lawyers, in the department who, in various departments, or the White House that had those responsibilities, or his campaign,” Barr continued. “He would search for a lawyer who would give him the advice he wanted.” (You can watch the interview below.)
Worse still, Trump seems to have known that the lawyers telling him what he wanted to hear were basically kooks. Behind her back, Trump mocked Sidney Powell as “crazy,” while Rudy Giuliani was reportedly notorious in Trumpland for being drunk all the time. You can hardly claim to have been led down the primrose path by your lawyers when you yourself know that they’re nuts.
There’s also the minor detail that an advice of counsel defense requires the defendant to waive attorney-client privilege and probably testify to establish his mental state — two things Trump has been loath to do. Trump fought tooth and nail to assert executive privilege with respect to his presidential records, and he pled the Fifth in response to almost every question when deposed by the New York attorney general in the upcoming civil case against his eponymous company. He failed to testify in his own defense in the E. Jean Carroll defamation suit, although jurors were treated to video of him in deposition volunteering that “fortunately or unfortunately” famous men have always been able to get away with grabbing women by the genitals. In short, he’s a horrendous witness, and no attorney on earth would put him under oath at a criminal trial.
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“What would happen if he got on the stand?” CNN’s Collins asked Barr.
“I think it would not come out very well for him,” the lawyer opined, adding, “I think he'd be subjected to very skilled cross-examination. And I doubt he remembers all the different versions of events he's given, over the last few years.”
And finally, as Lawfare notes, the federal case is in the DC Circuit, which has previously held that the advice of counsel defense is not available when the defendant and his attorney are co-conspirators. This means that, under existing precedent, you can’t defend yourself by claiming your lawyer told you to do it when the lawyer was in on the crime. The DC indictment names six unindicted co-conspirators, all of whom are lawyers, including Giuliani, Powell, John Eastman, his fellow coup-memo author Kenneth Chesebro, and former Justice Department lawyer Jeff Clark. So Trump will have an uphill battle to claim that he tried to obstruct Congress because these weirdos said it was very legal and very cool.
But all these obstacles might have been overcome if Trump hadn’t insisted on running his mouth. Again.
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Trump on TV: Of course I didn’t listen to my lawyers
“You called some of your outside lawyers — you said they had crazy theories. Why were you listening to them?” Welker asked Trump on “Meet the Press.” “Were you listening to them because they were telling you what you wanted to hear?”
“You know who I listen to? Myself. I saw what happened. I watched that election, and I thought the election was over at 10 o’clock in the evening,” the former president scoffed, demonstrating he had made up his mind about the election results before tens of millions of votes were counted. Later he referred to a book written by Federalist editor Mollie Hemingway in October of 2021 as evidence that the election was stolen, proving that his belief in pervasive fraud arose either before the events in question took place, or long after, but in any case without the advice of counsel.
“My instincts are a big part of it,” he rambled. “That’s been the thing that’s gotten me to where I am, my instincts. But I also listen to people. There are many lawyers. I could give you many books.”
“Just to be clear, were you listening to your lawyers’ advice, or were you listening to your own instincts?” Welker pressed.
“I was listening to different people. And when I added it all up, the election was rigged,” Trump insisted.
“Were you calling the shots, though, Mr. President, ultimately?”
“As to whether or not I believed it was rigged? Oh, sure,” Trump continued blithely. “It was my decision. But I listened to some people. Some people said that.” (The below video is timestamped to start at the relevant point.)
This is why you shut the hell up when you’re facing criminal charges.
Trump’s admission that he formed his opinions based on his instincts, or books written long after the fact, or by listening to “different people” is devastating to his planned advice of counsel defense. Thanks to his own megalomania, which won’t allow him to credit anyone else with telling him what to do, Trump has now admitted publicly and emphatically that he wasn’t acting on advice of counsel. He wanted to stay in office, and when his own campaign and White House lawyers told him he couldn’t, he went looking for lawyers to tell him he could. This wasn’t advice of counsel — it was demand of client.
So, pour one out for John Lauro, who is finding that he will not be the lawyer who finally figures out how to manage the world’s worst client. Or just drink up and enjoy the show.
That’s it for this week
We’ll be back with more Monday. Have a wonderful weekend.