The Trump Game Plan Sure Feels Shaky

Former President Donald Trump sits at the defense table with his legal team in a Manhattan court on April 4, 2023. (AP Photo/Seth Wenig, Pool)

With so many milestones today and in the coming weeks for Trump’s various legal cases, and with the prosecutors having announced all or nearly all of the criminal charges we are likely to see against Trump before the election, it’s useful to take stock of how things stand. Specifically, it’s helpful to ask at this point, “How’s Trump’s defense doing?”

In earlier pieces, I wrote about how three of his principal lines of defense may not get him to an acquittal very readily. As a refresher:

First, Trump claims he had a First Amendment right to say whatever he wanted to about the election and call whomever he wanted to about alleged election fraud. The problem is, free speech doesn’t give you a blank check to use speech to commit crimes. It’s still a crime to solicit election interference, for example, or ask your vice president to use fake electors that you helped organize in order to overturn the election.

Second, Trump claims he sincerely believed that the election was stolen and was acting accordingly. But I can sincerely believe the bank owes me money, and it doesn’t give me the right to rob it. Also, Trump’s sincere belief was unreasonable and willful in light of everyone competent around him telling him in clear terms that he’d lost. Trump even admitted so in private.

Third, Trump claims he was just following the advice of his counsel when he committed all those allegedly criminal actions. But you don’t get to hide behind your lawyers to commit crimes, you don’t get to cherry pick which lawyer’s advice you like and then follow it, and the advice has to have been reasonable to begin with. None of that is true here. Plus, Georgia doesn’t even permit advice of counsel as a stand-alone defense.

I’m fairly confident that Trump will face huge hurdles with these defenses when he finally gets to trial. But setting that aside for now, because we’re in the long, pre-trial phase of all of this and Trump seems determined to litigate the first part of this in the court of public opinion, we can start asking some different questions to assess how the defense is going. Here are mine:

• Does the defense seem organized and up to speed? 

• Is there a consistent and disciplined narrative? 

• Is the defense in control of witnesses and co-defendants?

• Is public opinion moving in Trump’s direction?

All fair questions, but Trump wouldn’t like the answers. Let’s look at these as objectively as possible—with the caveat that it’s nearly impossible to be completely objective when it comes to the ex-president.

Does the defense seem organized and up to speed?

Trump has a habit of firing whichever lawyers he has been working with and going with someone new, right as big events are unfolding. He’s done this in the Mar-a-Lago documents case, firing Jim Trusty just after being indicted. And this shakeup came after another Trump lawyer on the documents case, Timothy Parlatore, had already left the defense team just a month earlier. (Granted, that departure made some sense, given that Parlatore had to testify against Trump before the grand jury in D.C.—which would be insane by itself were it not for the fact that three other Trump attorneys, Christina Bobb, Alina Habba and Evan Corcoran, had also been called in to testify.)

Trump repeated this pattern of firing top lawyers very recently. This time it was on the eve of his arraignment in Georgia, parting ways with Drew Findling, the so-called #BillionDollarLawyer who is best known for his work with celebrities and who had worked with Trump since August of 2022 on the matter. In his place, Trump hired criminal defense attorney Steven Sadow, who has been publicly critical of Georgia’s broad RICO statute.

I should note here that it is no whimsical, inconsequential thing to fire your lawyer, particularly right as things are heating up. It’s like letting your head coach go before a big game, or switching trainers right before a competitive meet. Lawyers who are experienced on a matter know it inside and out. They know the witnesses, the evidence, the law, the judge and the plan. New lawyers have to come up to speed on all of that, as well as figure out in this case how to work with Donald Trump, perhaps the most difficult client ever to be prosecuted.

It isn’t clear why Trump fired his top lawyer in Georgia. Perhaps, and indeed quite possibly, it’s because of a fee dispute. Trump knew he’d be raising millions on his mugshot (the total so far exceeds $7 million since it was published) and maybe he didn’t want any of that going into Findling’s pocket. Or perhaps, and quite possibly, Trump was furious about the bond conditions that Findling’s office had worked out with Fani Willis. That agreement specifically called out and limited Trump’s posting and reposting on social media. Findling was probably correct not to try and fight this, because the last thing the defense would have wanted was a public hearing—likely televised—highlighting all of the threats, direct and indirect, that Trump has already made against officials and witnesses.

But what’s done is done. Trump has a mostly new team in Georgia, and they are way behind Fani Willis, who has been preparing for two years for this battle and has just asked all defendants to provide hard drives so she can transfer 2 TB of data.

Conclusion? No. The defense does not seem organized and up to speed. How on earth could they be given they are brand new?

Is there a consistent and disciplined narrative?

Trump has a habit of hiring attractive, Fox-ready women as his spokespersons and even his legal counsel. Both Christina Bobb and Alina Habba, whom I mix up all the time because of their names and their somewhat interchangeable roles, appear to fit this description. The problem with hiring people because they are good for TV is that they may not be very good for your case.

Habba provided a good example of this yesterday. Habba is the general counsel for Trump’s Save America PAC. She went on Fox, the day before a hearing on the setting of the trial date. And when asked whether Trump would be able to run for president with all these trials coming up, she insisted that he would be and then gave this rather startling answer:

He also knows the facts because he lived them. These are not complicated facts. Look at Fani. It was a phone call. A phone call that’s been around forever, that he refers to as “the perfect phone call.” What is he going to have to be prepped for? The truth? You don’t have to prep much when you’ve done nothing wrong.

While her intention may have been to make Trump look confident and secure in his innocence, it is in direct contradiction to the goals of his defense team, which at this very moment is seeking a trial date of April 2026 because the amount of material to review and prepare is supposedly too much.

As former U.S. attorney Andrew Weissman tweeted, “Not a great statement to make just prior to DC Judge anticipated ruling tomorrow on DC trial date.”

Another fine example of the defense not able to find its narrative footing? The sudden presser that Trump announced about a supposed “report” on election fraud, one that he claimed would “exonerate” him. He posted this on Truth Social,

A Large, Complex, Detailed but irrefutable REPORT on the Presidential Election Fraud which took place in Georgia is almost complete & will be presented by me at a major News Conference at 11:00 A.M. on Monday of next week in Bedminster, New Jersey

Trump added that it would be a “CONCLUSIVE Report” after which “all charges should be dropped against me & others.”

To no one’s surprise, that supposed 100-page report went about as public as his tax filings did after Trump first promised they’d be released. Within days, Trump was walking back his announcement, no doubt after his lawyers scrambled to convey that this was, in fact, a terrible idea. After all, it would underscore that Trump still is promoting unfounded conspiracy theories and lies about the election and remains unrepentant about what he did—a key issue when it comes to sentencing.

“Rather than releasing the Report on the Rigged & Stolen Georgia 2020 Presidential Election on Monday, my lawyers would prefer putting this, I believe, Irrefutable & Overwhelming evidence of Election Fraud & Irregularities in formal Legal Filings,” Trump wrote in a post three days later. “Therefore, the News Conference is no longer necessary!”

Conclusion? No. There is absolutely no consistent and disciplined narrative coming from the Trump camp.

Is the defense in control of witnesses and co-defendants?

When it came to the New York tax fraud case, I had to begrudgingly admire the fact that Trump’s capos held the line. His CFO, Allen Weisselberg, fell on the sword and did time in Rikers rather than rat on his boss. It highlighted for me how completely and utterly Trump has controlled those closest to him.

Trump’s problem in these cases today, however, is of a different nature. The witnesses are overwhelmingly former aides and advisors in the Trump White House, people who no longer need to have loyalty to him. And they are all coming out in public statements against him. That includes former Attorney General Bill Barr, who keeps going on Sunday talk shows to put Trump on blast, and former vice president Mike Pence, who now claims that Trump put himself above the U.S. Constitution.

Moreover, some of the lower level employees with first hand knowledge about Trump’s behavior actually switched their testimony after obtaining counsel no longer paid for by Trump or his PAC. I recently wrote a piece noting the similarities between the experiences of Cassidy Hutchinson, the former aide to Mark Meadows, and Yuscil Taveras, the IT worker at Mar-a-Lago. Taveras possesses information about efforts by Trump to erase video evidence, and it led to a superseding indictment against Trump and another employee for obstruction of justice. Trump is accustomed to controlling witnesses by having their lawyer fees paid by him or his PAC. But investigators have figured out ways to peel witnesses off by raising conflict of interest concerns and obtaining new counsel for them, with quite astonishing results.

Adding to Trump’s woes, recently some of the key co-defendants in the Georgia case have set events into motion over which Trump and his legal team have zero control. Most notably, five defendants have now filed removal notices hoping to transfer the case to federal court (and to an Obama appointee judge). Whether or not this happens, the judge has ordered an evidentiary hearing on Monday where testimony from officials, with whom Trump was on the phone in Georgia, will be entered into the sworn public record. And Trump has no effective way to keep that from happening.

Also of importance and jeopardy to Trump, two of his co-defendants, Kenneth Chesebro and Sidney Powell, who were both his campaign’s lawyers at some point and are unnamed co-conspirators in the D.C. federal January 6 case, have demanded a speedy trial in Georgia. This could mean that the bulk of the RICO conspiracy gets tried, live on television, with respect to defendants other than Trump, beginning in less than two months.

These defendants may seek to tie Trump directly to the case in order to throw him under the bus before he can do it to them. For example, they could claim they provided Trump with an array of options, but he took it to the next level by choosing the most crimey path.

An early and very public trial of his co-defendants, particularly if they are certifiably kooky like Sidney Powell, could prove a PR disaster for Trump as well. After all, Powell was up there at that press conference in November 2020 with Trump’s right hand guy, Rudy Giuliani, spreading unfounded and bizarre conspiracies about Dominion Voting Systems and Venezuelan software. And she was there in the White House with others during a fateful December 18, 2020 meeting advocating the government’s seizure of voting machines. Trump even discussed naming Powell as special counsel to investigate election fraud.

And this is one of the defendants America will get to hear from first? That’s a potential disaster for Trump.

Conclusion? No. The defense is not in control of witnesses and co-defendants.

Is public opinion moving in Trump’s direction?

The media has long focused on the GOP horse race in the primary contest for the nomination, noting that with each new indictment, GOP support for Trump appears to solidify as the base rallies around its leader.

But what about the rest of America? Is the legal circus proving too much for other voters? I prefer to ignore the two partisan camps, where minds are pretty much made up, and look instead at independent voters and how they are feeling about the saga of indictments and upcoming trials.

The news is not good for Trump. Four recent polls—by Quinnipiac University, AP Press-NORC Center for Public Affairs Research, ABC News/Ipsos and Fox—showed that Americans unsurprisingly remain sharply divided along party lines over the criminal charges. Nevertheless, there were some bad numbers for Trump.

In the Quinnipac poll, 54 percent of registered voters said Trump should be prosecuted for trying to overturn the election election. And seven in 10 said that anyone convicted of a felony should no longer be eligible to be president.

In the ABC News/Ipsos poll, half of Americans said that Trump should suspend his presidential campaign, and 63 percent said the latest criminal charges against Trump were “serious.”

In the AP/NORC poll, half of Americans said Trump’s interference in the Georgia election and his retention of documents at Mar-a-Lago was illegal.

And in the Fox poll, 53 percent said Trump had engaged in illegal activity to overturn the 2020 election. This number includes the overwhelming number of Republicans who said it wasn’t.

These numbers show that independents are already moving negatively against Trump, in part due to the indictments. And the witnesses and evidence haven’t even been presented yet.

Trump’s choice of a mugshot image reflects a questionable strategy to continue to portray himself as angry, defiant and fearsome, rather than in any way conciliatory. And his message right after his arrest and surrender was, rather ironically, “Never Surrender.” 

But if Trump wants to turn around his chances in both a court of law and the court of the American public, he is choosing a path unlikely either to win over jurors or voters. From where I sit, again being as objective as I can manage, the S.S. Trump defense seems to be taking on a great deal of water. Moreover, they keep changing who is at the wheel, his co-defendants scurrying rat-like to dry land, and the voters increasingly disinterested in tossing him a life preserver.