Since Trump’s indictment in Washington, DC, Trump’s lawyer, John Lauro, has been on conservative media trying out various defenses for Trump to see which ones have the best traction. Here are some of the defenses John Lauro is floating:


Lauro addressed the widespread skepticism that Trump has much of a First Amendment defense, arguing that “[w]hen you look at this indictment, it doesn’t really say much other than President Trump was exercising his right to talk about the issues and advocate politically for his belief that the election was stolen and was improperly run. He got advice from counsel — very, very wise and learned counsel — on a variety of constitutional and legal issues. So, it’s a very straightforward defense that he had every right to advocate for a position that he believed in and his supporters believed in.

“And this is the first time in the history of the United States where a sitting administration is criminalizing speech against a prior administration. It’s really quite unprecedented and it really will politicize the criminal justice system, which is terrible to see. … And free speech encompasses political advocacy, which often involves acting on that free speech.”


The problem with this defense is that the indictment doesn’t criminalize what Trump said. He was not indicted for riling up the crowd on the Ellipse or lying about the election results to his supporters in his rallies or tweets. He is being indicted for TAKING ACTUAL STEPS IN FURTHERANCE of a plan he and his co-conspirators including, Rudy Guiliani, Sidney Powell, John Eastman and others cooked up to keep him in power after losing the election. The plan shifted over time as it failed with each iteration to succeed in the desired goal of creating enough chaos to keep Trump in power. Part of the plot anticipated riots in the streets for which they planned to call out the military using the Insurrection Act while Trump stayed in the White House claiming he needed to stay on as president because the country was experiencing an insurrection. Many of these pressure campaigns outlined by the January 6th committee were plays that were running simultaneously.

The first thing Trump tried was totally legal. He had his team sue and sue and sue. Over 60 lawsuits were brought to challenge the outcomes in states where the margins of Biden’s victory were small enough that it might seem plausible that Trump might have won. Trump lost all of those lawsuits.

After that, Trump goes to the dark side by taking ACTIONS to advance an illegal plan to stay in power by claiming (even though he knows better at this point) that the election was rigged and engaging in a series of overlapping pressure campaigns to overturn the results of the election. Here are just some of the many ACTIONS Trump took that Jack Smith will add to and flesh out at time of trial.

  1. Trump sends his people out to key states to launch an alternate slate of electors’ scheme. His team of co-conspirators tees this up in states that have Republican state houses with people in positions of power who might be willing to play along like Georgia, Arizona, Michigan and Wisconsin. John Eastman and Kenneth Chesebro cook up a thinly veiled legal sounding scheme using the Independent State Legislative clause in the constitution as a way to make it look legit even though Eastman himself says he knows this idea would be rejected by the Supreme Court.
  2. Trump works on Pence to overturn votes, repeatedly pressuring the Vice President to get onboard with the idea of rejecting slates of electors in key battleground states with Republican state legislatures.
  3. Trump puts intense pressure on the Department of Justice to send out phony letters alleging vote fraud which was nonexistent, which causes Bill Barr to leave the DOJ and Clark to be appointed, briefly, as AG until Trump is told there will be mass resignations at the DOJ which would call attention to his plot to stay in power illegally.
  4. A plot is floated for the military to seize voting machines. That goes nowhere.
  5. Eventually Trump tries numerous last ditch Hail Mary efforts to try to strongarm Pence into using the normally ceremonial Electoral College recording of votes from each state as a way to stop the final verification of Biden’s win. Pence continually rejects that role even though Trump tries over and over to get him to join the coup plot. Pence, refuses based on conversations he has with conservative Judge Luttig and others. Pence chooses to abide by the law despite intense pressure from Trump. That’s what leads to the next iteration of the coup plot. Trump tweets out that there will be a rally, tells his followers to come and says it will be “wild”. The Ellipse rally features many of the coup plotters, including Trump, exhorting the crowd with the hope of getting the crowd to disrupt the counting of ballots on January 6th. Trump learns that people in the crowd have weapons. He says it doesn’t bother him because the crowd is not going to hurt HIM. Trump vows to join the rioters at the capitol and would have gone there but for an intervention by his Secret Service. When the crowd gets to the capitol, a number of white supremacist groups including the Proud Boys lead the assault- breaking windows and doors to get entry and attacking police with bear spray, flag poles and other weapons in hand to hand combat with police outnumbered. Americans watch the attack on live TV. The attack does disrupt the legislative process and threaten the life of the Vice President after Trump tweets out that Pence didn’t have the nerve to do the right thing. The crowd chants “Hang Mike Pence” and Pence is hustled down to the basement with his Secret Service detail. Other legislators, aides and staff who were present also flee. Some people die and others are seriously wounded in the attack. Trump watches all of this unfold on TV, is the one person who has the power to stop it and refuses to stop it for over 2 hours. As soon as he does tweet out that his supporters should go home now, they do just that. Pretty good evidence of intent wouldn’t you say?  If Trump didn’t want the mob to disrupt the vote he could have stopped the attack at any time.



Under the obstruction statute used to indict Trump, Smith must prove corrupt intent — that the former president knew the election was conducted fairly and so he executed a criminal conspiracy to overturn the results. The House Jan. 6 committee, with an eye on that law, long ago drilled down into every scrap of evidence they could find that showed Trump knew he lost the election and there was no outcome-determinative fraud.

(Another data point for the corrupt intent side of the ledger: Last night on CNN, Trump Attorney General BILL BARR told Kaitlan Collins that he also believed Trump knew this.)

Not so fast, insists Lauro: “What we will argue to the jury, and we’ll win, is that President Trump was arguing for the truth to come out in that election cycle rather than the truth to be denied. Even at the end, when he asked Mike Pence to pause the voting, he asked that it be sent back to the states so that the states, in exercising their truth-seeking function, could either audit or recertify.”

OK, so how about Trump’s intent? Smith has to prove Trump had corrupt intent. He will do that by pointing out that Trump himself conceded that he had lost to people behind the scenes, and he said that to people around him numerous times.  Here is an example of what he said many times:

In conversations in the Oval Office, Trump would occasionally slip and seem to acknowledge he lost, saying, “Can you believe I lost to that f***ing guy? That f***ing corpse?”

Doesn’t that sound like Trump knew he lost? Does this sound like a man who really wants the truth to come out?

But that’s not all. The January 6th Committee was limited by its inability to get people in Trump’s inner circle to testify. Those are the people who were in the room and can establish corrupt intent. Jack Smith has far more evidence he can marshal to show Trump’s corrupt intent. The fact that Trump was told many times by people around him who really wanted him to win re-election will be brought in at time of trial. Contrary to what Lauro says, the information in the indictment itself is not all of the evidence Smith has at his disposal for the trial. Jack Smith did not tell us all of the evidence in the indictment that we will hear at time of trial. There will be much more when it comes to Trump’s knowledge.

Also- Smith will NOT have to prove that Trump “knew the election was conducted fairly.” That is not accurate. Trump might think there was some level of unfairness but that does not give him the right to engage in criminal acts to undo the results of the 2020 election. Think about it this way- Remember when OJ Simpson thought his medals were taken from him unfairly and were being held by people OJ thought should be forced to give them back to him? He really believed that he should get his medals back and thought they still belonged to him. OJ can sue to get them back. But when he and his pals break into the place where his medals were being kept and seize them by force, he breaks the law and commits a crime.

Trump can say he feels the election was unfair and he can even believe that. But when he engages in ACTS that are criminal, he commits crimes. Even if you can make a case for the idea that Trump is engaging in all these pressure campaigns because he wants the truth to come out about a rigged election, that does not give him the right to stop the Electoral College proceeding by sending the vote back to the states so they could exercise their truth-seeking function to audit or recertify the election. In those states there had already been multiple lawsuits challenging the election results. None of them exposed any fraud that would have changed the outcome. By refusing to abide by the results of those lawsuits, Trump is acting outside of legally permissible bounds. Stopping the count, pausing it, delaying it, returning the issue to the states– none of that is legally permissible.  Trump is acting outside the law and his team of attorneys who are not part of Team Crazy have warned him not to do it. At the very least Trump is pulling an OJ here.

And there is also the idea of Willful Blindness if Trump claims he did not have the requisite intent.

Willful blindness, also known as conscious avoidance, is a judicially made doctrine that expands the definition of knowledge to include closing one’s eyes to the high probability a fact exists.

Courts use different terms to refer to deliberate ignorance—like willful ignorance, willful blindness, and conscious avoidance. And they have a separate, informal term for a jury instruction that deals with this concept—they call it the ostrich instruction.

A judge may give the ostrich instruction to a jury when the evidence at trial could suggest that the defendant’s lack of knowledge of a fact needed for a conviction resulted from deliberate ignorance. 

If John Lauro tries to say that Trump just innocently wanted to get to the truth by sending the vote back to the states, the judge will likely give the ostrich instruction to the jury. Trump knew what he was up to wasn’t OK. He had been told many times. But he persisted. He was either deliberately ignorant or he DID know this move to disrupt the ceremonial counting of the Electoral votes was illegal and did it anyhow.


3. ADVICE OF COUNSEL DEFENSE, with Trump trying to prove there was no corrupt intent because he was simply relying on legal advice from lawyers such as Eastman, Powell, Guiliani and Chesebro. Smith has clearly anticipated this as five of the six co-conspirators described in the indictment are these same Trump lawyers Smith alleges were all in on it. More on this from WaPo’s Greg Sargent

Trump had two teams of attorneys advising him. Team Normal and Team Crazy. He did not like what Team Normal was telling him so over time he cut them out and sent them packing or they cut themselves loose as they saw they could get mired in the plot to overturn the election and didn’t want to ruin their reputations for Trump or end up indicted. Trump had fully cozied up to Team Crazy by the end of this coup plot attempt for which he is being indicted.

Smith will have ample evidence to prove that Trump selectively chose Team Crazy to listen to over Team Normal. Instead of showing that Trump simply relied on lawyers who misled him, Trump will be shown to have pushed away lawyers who gave him advice that would have kept him from being indicted. It was a choice he consciously made. By the end of his time in office the White House had been hollowed out. Witnesses reported that the White House corridors were empty compared to before. People left Trump as he plotted with Team Crazy.

Trump’s Team Crazy were the ones who have also been charged as co-conspirators. It will not work to claim that co-conspirators who were telling Trump to break the law were relevant legal advisors since they also had corrupt intent.  All of them knew better. Including Trump.



There are some commentators floating the idea that Trump could claim he is delusional or has dementia. He really really believes he won the election despite everything he heard from Team Normal. He just keeps on believing in his heart of hearts that he did win. That defense would go to his state of mind and, presumably, knock out the mens rea that he knowingly committed crimes to stay in power.

The problem here is that all Jack Smith would need to do is put on a psychiatrist to disprove this defense. Someone with dementia wouldn’t be able to give speeches at rallies coherently or put on his clothes or be able to pass the “man woman camera” mental acuity test that Trump likes to brag about. You can’t be delusional if the only time you are is when you cannot admit you lost an election.

If you look at Trump’s patterns of behavior he also cheats at golf and can’t stand to lose a golf game. Take a look at Commander in Cheat by Rick Reilly. It’s about how Trump lies about his golf game and cannot admit he didn’t win, so he cheats. He even goes so far as to move another player’s golf ball to make it have a worse lie so he, Trump, can have an advantage.  If he had serious dementia he could not function the way he does on the campaign trail or the golf course. No, Trump is a highly functional bad sport, liar, and cheater.

He is also very smart at PR and marketing. Trump is running a PR campaign with his lawyer, John Lauro, and others who still support him. He is attacking the prosecutor, judge, court system, news media, government, institutions, Democrats, Joe Biden and much more. Trump came into politics claiming America was a mess and talking about American carnage. This is part of the autocrat’s playbook and the best hope for him to get off. If everyone and everything else other than the cult leader is corrupt, then the only person you can trust is the cult leader/dictator.

Trump’s legal defenses will fail. This is why Trump is trying for the one “defense” that could work, namely, jury nullification. He is aggressively trying to plead his case to the public right now through his lawyer to create sympathy for himself with the public and distrust of everyone and everything else with the hope that someone on the jury will be a hold out to prevent him from being convicted.