“This isn’t a reasonable argument”: Experts say Trump lawyer’s defense “won’t fly in any court”

“A person cannot walk into a bank and say, 'stick 'em up,' and then cling to the First Amendment's protections”

By Areeba Shah

Staff Writer

Published August 2, 2023 3:14PM (EDT)

John Lauro, defense attorney (Ramin Talaie/Corbis via Getty Images)
John Lauro, defense attorney (Ramin Talaie/Corbis via Getty Images)

In the wake of former President Donald Trump's indictment over his efforts to overturn the 2020 presidential election, his attorney John Lauro is adopting a novel legal defense: He contends that the entire case is a deliberate attempt to suppress Trump's political speech.

"Our focus is on the fact that this is an attack on free speech, and political advocacy, and there's nothing that's more protected under the First Amendment than political speech," Lauro told CNN's Kaitlan Collins in an interview on Tuesday. "So, at the end, our defense is going to be focusing on the fact that what we have now is an administration that has criminalized the free speech, and advocacy of a prior administration, during the time that there is a political election going on."

Lauro went on to say that Trump had every right to advocate for his positions about voter fraud irregularities and other electoral matters and only asked then-Vice President Mike Pence to "pause the vote counting" after seeking advice from lawyer John Eastman.

Federal prosecutors have filed four felony charges against Trump, which include the conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights. Eastman is described as one of Trump's co-conspirators in the indictment.

"This is politics. This indictment is about pure politics," Lauro told CNN. "We engage in vigorous debate in this country about politics. What we don't do is criminalize political speech. This indictment is a game-changer. It's the first time that we've taken political speech and said, we're going to criminalize it by the party that's in control against the party that's contesting the next election, where the two individuals involved are going to be running for office. That is an incredible set of circumstances."

The former president and his co-conspirators attempted to overturn the results in key states by promoting baseless claims of election fraud that they were well aware were false, according to the indictment.

While Lauro's argument likely will not hold up in court as a valid legal defense, it will almost certainly be embraced by many of Trump's supporters, former federal prosecutor Christine Adams, a partner with Los Angeles-based Adams, Duerk & Kamenstein, told Salon. 

"The indictment very carefully ties the words of Trump and others to actions that show that Trump and others said the things they said with the intent to carry out criminal activity," Adams said. "Notwithstanding the First Amendment, people are charged all the time with crimes based on their statements to others for example if they're involved with a Ponzi scheme, if the government can establish the requisite criminal intent in making those statements."

Appearing on NBC's "Today," Wednesday morning, Lauro continued to employ the same defense strategy saying that since Trump followed the advice of Eastman, "one of the leading constitutional scholars in the U.S.," who told him that the protocol he was following was legal, this "eliminates criminal intent."

But legal experts argue otherwise and don't view Lauro's defense as sound. 

"This isn't a reasonable argument, and it won't fly in any court of law," Anthony Michael Kreis, a Georgia State University law professor, told Salon."The speech at the heart of the indictment informs the underlying criminal conspiracy and the indictment outlines conduct that was undertaken in furtherance of that conspiracy. The argument is without merit."

Kreis pointed to the example of a person joking about robbing banks, which would be protected free speech since it lacks criminal intent. He added that a person can even explain why it should be lawful to rob banks or praise bank robbers, and that is protected political speech. 

"However, a person cannot walk into a bank and say, 'stick 'em up,' and then cling to the First Amendment's protections nor can two people plan to rob a bank and then claim they were just engaged in constitutionally protected thought," Kreis said. 

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Adanté Pointer, an Oakland civil rights attorney, said that while everyone has a Constitutional right to express their opinions, you cross the line from "constitutionally-protected speech to criminal conduct" when your motive and intent are in furtherance of a criminal conspiracy.

"Things changed when he weaponized his baseless statements to promote lawless activity, to present false evidence to the courts, and to recruit and direct fake electors and other co-conspirators to carry out the fraud," Pointer said. 

The 45-page indictment filed by the special counsel Jack Smith is "just the tip of the iceberg of the mountain of publicly known evidence," Norman Eisen of the Brookings Institution and a legal analyst for CNN, said during a post-indictment press call Wednesday afternoon. 

"We have a right to know that one of the leading contenders for the nominee for the presidency of one of our two major political parties is a criminal who has assaulted American democracy," Eisen said. 

He added that cases are not just about the prosecution, evidence, proof and law, but also about the strength of the defenses that the defendant is going to mount. 

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Jamie White, a Michigan-based attorney who handles criminal defense and civil rights cases, said that Trump isn't being charged for "being a liar," but is instead being charged with "affirmative action to alter an election in his favor to the detriment of others." 

The idea that Trump's first amendment rights have been violated is going to fail, he added.

"This is the most historic indictment in the history of the United States," White said. "I hope people will put aside their partisan interests and digest all 45 pages of the evidence in the indictment which was supported almost entirely by the Republicans that either worked with him and relied on Trump or have some close affiliation with him because the notion that this is some democratic or left-wing conspiracy is ridiculous. There is no evidence pointing to that and it is time for people to realize this man has been taking advantage of people and should not have any place in the White House."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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