Trump lawyers planning criminal defense that shifts blame to “fall-guys” that worked for him: report

Trump has also threatened a protest that would “make the crowd size at Jan. 6 look small by comparison”

By Igor Derysh

Managing Editor

Published August 1, 2022 9:15AM (EDT)

Former President Donald J Trump (Jabin Botsford/The Washington Post via Getty Images)
Former President Donald J Trump (Jabin Botsford/The Washington Post via Getty Images)

Former President Donald Trump's attorneys are preparing a legal defense against potential criminal charges from the Justice Department, according to Rolling Stone.

Trump's attorneys are preemptively preparing to fight potential charges from the DOJ, which has asked grand jury witnesses about the former president's actions, according to the report. Trump has been briefed on the potential legal defenses at least twice over the summer, Rolling Stone reported, and the efforts "intensified" after former White House aide Cassidy Hutchinson testified before the House Jan. 6 committee.

"Members of the Trump legal team are quietly preparing, in the event charges are brought," a source familiar with the situation told the outlet. "It would be career malpractice not to. Do the [former] president's attorneys believe everything Cassidy said? No … Do they think the Department of Justice would be wise to charge him? No. But we've gotten to a point where if you don't think criminal charges are at least somewhat likely, you are not serving the [former] president's best interests."

Trump's lawyers have discussed strategies that involve "shifting blame from Trump to his advisors for the efforts to overturn the election," Rolling Stone reported, seeking to find a "full-guy or fall-guys."

"Trump got some terrible advice from attorneys who, some people would argue, should have or must have known better," a source with knowledge of recent discussions told the outlet. "An 'advice of counsel' defense would be a big one."

Trump's team has also discussed First Amendment defenses related to the fake elector scheme.

Prosecutors investigating Jan. 6 have asked aides to former Vice President Mike Pence about Trump's role in his campaign's effort to organize fake slates of electors in states that he lost in a bid to legitimize his debunked election fraud conspiracy theories and pressure election officials in contested states. The failed effort has since come under scrutiny by the DOJ as well as Fulton County District Attorney Fani Willis.

Though some of Trump's lawyers doubt that Attorney General Merrick Garland is willing to charge him, Trump's team has acknowledged that they would need to bring in more "firepower" if the DOJ does file charges, according to the report.

"You'd need to have a real heavyweight at the top [of the legal team] for something like that, but right now nobody knows who that would be," a Trump adviser told Rolling Stone.

Former Trump lawyer Ty Cobb, who represented him in former special counsel Bob Mueller's investigation, predicted that Trump and his top aide may be charged for their roles in the election scheme.

"I do think criminal prosecutions are possible. Whether they are advisable is a more difficult consideration for the country," he told Rolling Stone last month. "Possible for Trump and [former chief of staff Mark] Meadows certainly. And for the others, including lawyers, who engaged fraudulently in formal proceedings or investigations."

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A former president has never been prosecuted for crimes committed while in office. Trump's legal team in a separate legal battle over civil lawsuits accusing him of inciting the Jan. 6 attack claimed that Trump has "absolute presidential immunity" from litigation for acts committed in office but judges have previously rejected those arguments.

Trump has also stoked the idea of riling up his mob of supporters if prosecutors target him.

"We are going to have in this country the biggest protest we have ever had…in Washington, D.C., in New York, in Atlanta and elsewhere," Trump said at a Texas rally in January.

Trump has repeated that line to his inner circle throughout the summer, according to the report.

"He says," a source told Rolling Stone, "it would make the crowd size at [Jan. 6] look small by comparison."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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