Trump’s Lawyer Made the Sunday Talk Show Rounds, and Wow.

Image compilation courtesy of The Recount

On Sunday, Trump’s latest attorney John Lauro pulled a “full Ginsburg.” Meaning, just as Monica Lewinsky’s attorney William Ginsburg did back in 1998, Lauro appeared in a single day on all five major Sunday morning talk shows: This Week on ABC, Fox News Sunday, Face the Nation on CBS, Meet the Press on NBC, and Late Edition on CNN.

But maybe Lauro should have stayed home. During these appearances, he made some rather brazen assertions that have legal experts scratching their heads and much of the public rolling our collective eyes. 

So let’s follow the Ginsburg trail, first recounting then analyzing what this latest lawyer-who-probably-won’t-get-paid actually said and argued. I challenge you to not raise your own eyebrows in amazement.

We’re going to call Pence to the stand!

In the Trumpian spirit of “the best defense is to offend common sense,” Lauro has come out swinging. He claimed on both ABC News’ This Week and CBS’s Face the Nation that the defense would call former vice president Mike Pence to the stand and that he “will be one of our best witnesses.”

This is a curious move, and perhaps it’s just a bluff. After all, Pence is cited heavily in the indictment as a fact witness for the prosecution.

Paragraph 90 of the indictment lays out Pence’s recollections of many conversations, backed up with contemporaneous notes, in which Trump tried to persuade him to throw the election to him or send the count back to the states. Check out Section c. of that paragraph: “The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, ‘You’re too honest.’”

Not good, if you’re Donald Trump. Knowledge of dishonesty is enough to satisfy criminal intent for fraud, for example.

The indictment also recites the myriad ways Trump continued to harass Pence to violate the law, all the way up through the attack on the Capitol, where he tweeted that Pence was a coward and wouldn’t do the right thing, enraging his followers to press forward and call for Pence to be hanged.

Now Lauro wants Pence to be Schrödinger’s vice president. Sure, some of his testimony is legal death for the president, but it could also keep his defense alive! For example, Lauro claims that Pence will agree that Trump wasn't acting with criminal intent by seeking to stay in power and reverse his election loss. Pence might also concur that Trump was just listening to some bad lawyers, buttressing Trump’s “advice of counsel” defense.

Nice try. In his public statements, Pence has been careful not to get pulled into this trap. When the indictment issued, Pence stated, “Today’s indictment serves as an important reminder: Anyone who puts himself over the Constitution should never be President of the United States.” So it’s already clear that Pence believed Trump was acting in his own interest, and not in faithful service of the Constitution. (Duh.) Pence continued, “Our Constitution is more important than any one man’s career. On January 6th, Former President Trump demanded that I choose between him and the Constitution. I chose the Constitution and I always will.”

Critically, on the question of intent, Pence has said he won’t speculate. “I don’t know what was in his heart,” he said on CNN. “I don’t know what his intentions were, but I do know what he and his lawyers asked me to do.”

In other words, “I’m just going to repeat what was said to me, and you jurors decide what to make of it.”

And on listening to bad lawyers, Pence wasn’t helpful to Lauro either. Addressing the indictment, Pence said to reporters, “Sadly, the president was surrounded by a group of crackpot lawyers that kept telling him what his itching ears wanted to hear.”

That sounds a lot more like willful ignorance and lawyer shopping than a strong advice of counsel defense, especially given that Trump’s own official White House lawyers were telling him the exact opposite about the election.

Then there’s the big problem with Lauro’s client himself, the former president. Lauro has had no more success controlling Trump and keeping him from “Truthing” his opinions than the last set of lawyers did. While Lauro was busy boasting that they would call Pence to the stand as a helpful witness, Trump was excoriating Pence online, and likely in violation of the terms of his pre-trial bail.

“WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side,” Trump posted on his “Truth” Social platform over the weekend. “I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest,’” Trump added. “He’s delusional, and now he wants to show he’s a tough guy.” Trump ended with a swipe, saying an article he had read had said Pence “was not a very good person” and that the “article was right. Sad!”

This is a bizarre and dangerous mix of directly coming after a key witness, even while your lawyer says he wants to put him on the stand to exonerate you. I’ve never seen anything like it, but on balance I don’t think it’s going to help Trump’s case in the slightest.

It was only a “technical violation” of the Constitution!

This one startled me when I heard it. On Meet the Press, Lauro tested out another angle.

Let me set this up. Chuck Todd of NBC had pressed Lauro on what Pence had stated publicly. “He said the President asked him to violate the Constitution,” Todd pointed out, “which is another way of saying he asked him to break the law.”

“No, that’s wrong,” Lauro responded. “A technical violation of the Constitution is not a violation of criminal law. That’s just plain wrong. And to say that is contrary to decades of legal statute.” 

I’m still trying to figure out what “technical violation” means here and why it would mean Trump gets to skate. The crimes alleged in the complaint are conspiracies to defraud, obstruct and strip away the voting rights of millions. Part of the plan included pressuring Pence to violate his constitutional role so that Trump could seize power illegally. Is Lauro now admitting that Trump was asking Pence to violate his duty? “Technical” or otherwise, the request for a violation goes to Trump’s corrupt and criminal intent.

It would be as if Trump had said to a bank teller, “Let me into the bank vault using your pass card. Don’t worry, it’s only a technical violation of your job.” 

And even if we’re talking about whether asking Pence to throw out millions of votes and announce Trump as the winner was by itself just a “technical violation” of the Constitution and not a crime, this argument doesn’t hold up either. Rep. Jamie Raskin was visibly incredulous when asked later about the exchange, calling the line of argument “deranged.” He correctly noted, “There are people who are in jail for several years for counterfeiting one vote. ... He tried to steal the entire election.”

There was a peaceful transfer of power!

If you haven’t raised your eyebrows yet, here’s one for you, and into the Twilight Zone we go. On CNN, Lauro insisted to host Dana Bash that Trump had facilitated a “peaceful transfer of power.”

Those scenarios were presented to Vice President Pence. He considered them, and as a constitutional matter, he rejected them. One of the last, and the ultimate, requests that President Trump made was to pause the voting for ten days to allow the state to recertify or certify or audit, and Mr. Pence rejected that as well. After that, there was a peaceful transition of power.

Anyone notice what got left out? Right after the words, “After that”?

“After that,” a violent mob of Trump’s supporters, whipped up by him after being fed a steady diet of lies about a stolen election, attacked the Capitol. Five people died during and after that assault. 138 police officers were injured. The electoral count by Congress was very nearly stopped through force, as Congressmembers fled for their lives just ahead of the mob.

But Lauro stuck to his narrative. This exchange on CNN was telling:

Bash: What happened on January 6 was not peaceful!

Lauro: The transfer of power was certainly peaceful.

Bash: Did you see what happened on January 6? Did that look peaceful to you?

Lauro: I’m not saying that that was in any way appropriate. But the ultimate power of the presidency was transferred to Mr. Biden. We all know that, as you do.

Lauro may be floating trial balloons to see how the political wind blows them, but even he ought to know that characterizing the transfer of power on January 6 as “peaceful” is DOA, especially before a D.C. jury, many of whom remember how terrifying that day was for their city.

But sure, go ahead, run with that.

Trump’s quest to overturn the election was “aspirational”!

The indictment makes clear that it is not charging Trump for lying about a stolen election. He was free to spout lies if he wanted to. Where Trump’s lies crossed a line, however, was when he tried to use them to solicit others to commit crimes.

To hear Lauro put it, however, things like the call from Trump to Georgia Secretary of State Brad Raffensperger were just Trump trying to get him to do the right and “aspirational” thing. Here’s an exchange from Meet the Press on Sunday with Chuck Todd:

Todd: If he had proof he won the state, why did he threaten the secretary of state with a criminal charge?

Lauro: That wasn’t a threat at all. What he was asking for is for Raffensperger to get to the truth. He believes that there were an excess of 10,000 votes that were counted illegally. And what he was asking for is the secretary of state to act appropriately and find these votes that were counted illegally.

Todd: ‘Find.’

Lauro: Hold on one second. That was an aspirational ask. He is entitled to petition even state government. 

It’s critical to note that, by the time of this call, three audits had already been completed in Georgia. The votes had been certified, as had the electoral college votes of the state’s true electors. There was no legal avenue remaining for Trump to pursue. So he tried a blatantly illegal one: getting Raffensperger to “find” just enough votes to change the outcome.

We need a more diverse jurisdiction, like West Virginia!

Finally, and to no one’s surprise, Lauro confirmed that he is going to pursue a change of venue out of D.C., which Trump understandably feels might not be a great jury pool for him. There was this exchange on Face the Nation, with host Major Garrett:

Garrett: Are you still going to pursue a change of venue?

Lauro: Absolutely, we would like a diverse venue, a diverse jury.

Garrett: Do you have an expectation that will be granted?

Lauro: That reflects the characteristics of the American people. It’s up to the judge. I think West Virginia would be an excellent venue to try this case.

Last I checked, West Virginia is 92 percent white. That’s not exactly a place that reflects the “characteristics of the American people.” 

This West Virginia bit doesn’t come out of the blue (or perhaps I should say, red). Trump has previously whined on “Truth” Social that it would be “impossible” for him to get a fair trial in D.C., and that he prefers “the politically unbiased nearby State of West Virginia!” Notably, that “politically unbiased” state went 40 points for Trump in 2020. Meanwhile, Trump has described D.C. as “over 95% anti-Trump”—likely because he only received four percent of the vote in the District in the 2020 election.

The chances that the trial gets moved out of D.C., let alone to West Virginia, are very low to vanishing. Venue is proper because this is the jurisdiction where all the plotting, criming and injury happened. It’s also where all the witnesses and lawyers are.

To Lauro, I’d say this. If your client doesn’t want to be tried in D.C., then tell him not to commit crimes in D.C.