Trump’s Legal Team Is Reportedly Lining Up His Likely Defenses. How Strong Are They?

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A story out yesterday by Rolling Stone, which has delivered some of the most cutting edge reporting around the January 6 insurrection and coup attempt, indicates that Trump and his advisors are now huddling to consider the former president’s potential legal defenses should charges be brought against him and his inner circle. According to three sources familiar with these preparations, Trump’s lawyers are looking at two major lines of defense, one based on “advice of counsel” and the other on his broad First Amendment right to freedom of expression, particularly the right to petition the government for grievance.

How strong might these defenses be, and what are their vulnerabilities? It’s still fairly early to know precisely how they might be asserted against a federal indictment (or an indictment driven by Fulton County, Georgia District Attorney Fani Willis), but it is possible in broad strokes to examine their likely efficacy based on what we already know and on similar arguments already unsuccessfully advanced in another Jan. 6 case. Let’s unpack.

Advice of Counsel Defense

“Advice of counsel” is an affirmative defense (meaning one that is raised in response to a claim or charge) in which a defendant argues that all relevant facts were disclosed to the defendant’s attorney, who assured the defendant that no laws were being broken. This pops up a lot in insurance and tax cases, but it’s also potentially applicable in other settings.

Trump has a habit of arguing that he was only doing what his lawyers told him to do as a way to escape criminal liability. The most famous instance is when he actually tweeted that the decision to pay hush money to Stormy Daniels is something that was entirely handled by his former lawyer, Michael Cohen, and that he was just signing checks Cohen told him to sign. "He was a lawyer and he is supposed to know the law," Trump tweeted about Cohen. "It is called 'advice of counsel,' and a lawyer has great liability if a mistake is made. That is why they get paid."

He went on in subsequent tweets to flesh out this argument publicly:

“Despite that many campaign finance lawyers have strongly stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance. Cohen was guilty on many charges unrelated to me, but he plead to two campaign charges which were not criminal and of which he probably was not guilty even on a civil basis.”

"Those charges were just agreed to by him in order to embarrass the president and get a much reduced prison sentence, which he did-including the fact that his family was temporarily let off the hook. As a lawyer, Michael has great liability to me!"

In the case of his coup attempt, however, advice of counsel is a perilous path for Trump. For starters, it generally waives all attorney client privileges once asserted. This makes sense: After all, if Trump’s argument was that he was only following the legal advice of John Eastman (while, by the way, ignoring the legal advice of other lawyers like Eric Herschmann and Pat Cipollone), then he can’t continue to hide what that advice was behind a privilege wall.

There’s also a giant exception to the advice of counsel defense: It doesn't apply if both the lawyer and the client knew that what they were doing was illegal in some way. The question of Trump’s knowledge of, and corrupt intent around, the coup attempt was addressed specifically by Judge Carter of the Eastern District of California. Trump’s lawyer John Eastman had sought to withhold documents based on claims of attorney-client privileged, but Judge Carter ruled that the “crime-fraud exception” to privilege applied, meaning it was more likely than not that Trump and Eastman committed two federal crimes together.

Specifically, Judge Carter found that Trump likely knew that the justification for the entire coup—claims of a fraudulent election—was “baseless, and therefore that the entire plan was unlawful.” Carter noted that there were “numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud.” Carter also pointed out that by early January, more than sixty courts had dismissed cases alleging fraud due to lack of standing or lack of evidence. 

Judge Carter also found that the whole Eastman plan lacked legal justification. He found that Eastman’s infamous memo had declared their “intent to step outside the bounds of normal legal practice.” Moreover, Vice President Pence very consistently had made clear to Trump that the plan was unlawful, refusing “many times to unilaterally reject electors or return them to the states.” Importantly, in response to Eastman’s argument that the plan was based on a “good faith interpretation of the Constitution,” Carter noted that “ignorance of the law is no excuse” and that even a good faith belief that the Electoral Count Act was unconstitutional “did not give President Trump license to violate it.”

In short, Trump was so intertwined with Eastman and so clearly was told again and again that what he wanted to do was illegal that it is hard to see how an “advice of counsel” defense would succeed. Rather, Prosecutors readily could argue, with a lot of evidence to back them up, that Trump was a co-conspirator, not a hapless client.

Broad First Amendment Rights to Freedom of Speech

Trump’s legal team is right to look to the First Amendment to try and shield him from criminal liability. As a politician, Trump enjoys a broad right to speak about policy, to air his grievances and claims, and even to lie to the public as politicians frequently do. But there is a line that can’t be crossed, and Trump’s likely defenses based on the First Amendment are going to succeed or fail based on whether he crossed that line.

For example, on the possible charge of incitement of the insurrection, the question will be whether Trump’s words were mere political advocacy, as some like Alan Dershowitz of Harvard Law School have argued, or whether they meet the standard for incitement of unlawful action. Those standards are set out in a famous Supreme Court case known as Brandenburg, which held that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis mine.)

In other words, for Trump’s words at the Ellipse rally to qualify as illegal incitement, they must have advocated the mob to break the law, they must have been likely to cause illegal action, and Trump’s goal in uttering them must have been to provoke this illegal action. Knowing what we know now, following testimony provided during the January 6 hearings, Trump was aware that many in the mob were armed, that he had kept hidden his plans to march the mob on the Capitol (thus limiting the preparations that otherwise would have been made), and that his goal was to have the mob accomplish what Mike Pence refused to do for him: a delay of the electoral count long enough to sow chaos and send it back to the states. 

Trump will argue that he in fact told that crowd to march peaceably, and while that will weigh against the charge, the totality of the circumstances will have to be taken into account. After all, telling an armed mob with a wink and a nod to go “peaceably” is quite disingenuous. And after the mob had arrived, Trump tweeted out a dangerous message right as they were breaching the Capitol, putting a target on Mike Pence’s back. He also did nothing for three hours and seven minutes as the crowd he sent down to the Capitol attacked. His state of mind appears to have been to ignite the assault, because he chose to do nothing to stop it.

Trump’s lawyers will also argue that the “fake elector” scheme can’t serve as grounds for a charge of conspiracy to defraud the United States because there is a broad right, contained within the First Amendment, for citizens to petition their government with their grievances. While there is a long history of Americans doing just that, there is a big difference between submitting legal petitions asking for government action or change and the kind of shenanigans that happened here. The fake elector scheme was coordinated by the Trump campaign, whose lawyers apparently understood it was a “fake” scheme, even admitting as much in emails. The “petition” was actually a series of false statements that the GOP electors were duly elected, which was patently untrue.

In short, the First Amendment is broad, but not so broad as to protect false statements under oath or fraudulent statements to the government. And if it turns out that Trump was fully aware of the fraudulent scheme, as the hearings appeared to have shown, then he and his top advisors might well be swept up into the conspiracy, with no First Amendment rights to protect their deceptive plans and actions.

Prosecutors are weighing these potential defenses now, and they are considering what evidence there is to rebut them. From where I sit, this is an important but straightforward task. There is ample evidence that Trump knew that the election wasn’t stolen but nevertheless spread that lie to justify his coup attempt; that he knew that the mob was armed and dangerous and unleashed them anyway with his command to march on the Capitol; that he had knowledge of the fake elector scheme and approved of it; and that he fully knew that what he was asking Mike Pence to do was unlawful.

We will have to see what evidence Trump’s team ultimately produces as a counterweight to this growing mound from the prosecution side.