Trump lawyer hints at a First Amendment defense in the Jan. 6 case. Some legal experts are dubious

Donald Trump’s legal team is characterizing his indictment in the special counsel’s 2020 election interference investigation as an attack on the former president’s right to free speech. But the case is not merely about Trump’s lies but also about the efforts he took to subvert the election, prosecutors say.

The early contours of a potential legal and political defense began to emerge in the hours after the charges were unsealed, with defense lawyer John Lauro accusing the Justice Department of having “criminalized” the First Amendment and asserting that his client had relied on the advice of attorneys around him in 2020. He also indicated he would look to slow the case down despite prosecutors’ pledge of a speedy trial.

But experts say there’s little legal merit to Trump’s First Amendment claims, particularly given the breadth of steps taken by Trump and his allies that prosecutors say transformed mere speech into action in a failed bid to undo the election. Those efforts, prosecutors wrote in the indictment, amounted to a disruption of a “bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”

“If all that this was about was lies or the alleged lies of President Trump, then he’d have a pretty good legal defense based on the First Amendment,” said Floyd Abrams, a longtime First Amendment attorney. “But the theory of the indictment is that the speech of the president and the falsehoods of the president were part of a general effort to steal the election.”

Lauro said Tuesday night in an interview with CNN that the indictment is an attack on “free speech and political advocacy.”

"And there’s nothing that’s more protected under the First Amendment than political speech,” he said.

The First Amendment does indeed give wide berth for all manner of speech, and it's well established that lying to the public isn't itself a crime. Special counsel Jack Smith and his team of prosecutors seemed to have anticipated the First Amendment line of defense, conceding head-on in their indictment that Trump had the right to falsely claim that fraud had cost him the election and to legally challenge the results.

But they also said the conduct of Trump and six co-conspirators he's alleged to have plotted with went far beyond speech.

“Saying a statement in isolation is one thing. But when you say it to another person and the two of you speak in a way and exchange information in a way that leads to action — that you want to take action to do something with that speech — then arguably it becomes unprotected,” said Mary Anne Franks, a law professor at George Washington University.

Those actions include enlisting slates of fake electors in seven battleground states won by Democrat Joe Biden to sign false certificates representing themselves as legitimate electors; trying to use the investigative power of the Justice Department to launch sham election fraud probes; and badgering his vice president, Mike Pence, to disrupt the ceremonial counting of electoral votes before Congress on Jan. 6, 2021.

That process was indeed disrupted when rioters fueled by Trump's baseless claims of a stolen election stormed the U.S. Capitol in a violent and chaotic clash with police.

“Insofar as he’s giving instructions, and planning to do things that are themselves illegal and involve action, like the signing of false certificates and so forth, that’s not a very good defense,” said Michael Dorf, a constitutional law expert at Cornell Law School.

Trump’s attorney has also suggested that his defense may at least partly focus on the idea that Trump was acting in good faith because he truly believed his bogus election fraud claims. But the indictment is careful to show how Trump was repeatedly told by people close to him that there was no truth to his claims and that his efforts to undermine the election were misguided.

And some of the comments detailed in the indictment suggest that Trump knew he had lost and that his actions were wrong. In one encounter days before the riot, Trump told Pence he was “too honest” after the vice president said he didn’t have the authority to reject electoral votes, the indictment says.

“I can imagine that prosecutors will use that line over and over and over in the trial, in their opening statement and closing argument, to show that he really didn’t believe the things he was saying,” said Brandon Fox, a former federal prosecutor who now works as a defense attorney.

Another challenge for Trump’s defense is that many of the witnesses he would want to call to the stand to say that they told Trump there was election fraud are co-conspirators who will likely be reluctant to testify.

“Typically in federal prosecutions, those unnamed co-conspirators are not that thrilled about testifying for the defense because they are worried about being charged in the future,” Fox said.

The legal proceedings will be presided over by U.S. District Judge Tanya Chutkan, an appointee of President Barack Obama who has stood out as one of the toughest punishers of rioters. She has also ruled against Trump before, refusing in November 2021 to block the release of documents to the House’s Jan. 6 committee by asserting executive privilege.

No matter the legal viability of the First Amendment arguments, Chutkan is nonetheless expected to let the defense lawyers raise those kinds of arguments and let a jury decide the line between permissible speech and illegal action, said John Fishwick, a former U.S. attorney for the Western District of Virginia.

“The worry for a judge will be, ‘Well, if I don’t let this evidence come in, if I don’t let the present former president raise the defense of (the) First Amendment and he’s found guilty, then there’s the risk of another trial,’" Fishwick said.

“So a smart judge,” he added, "is always going to err on giving the defense as many breaks as that judge deems reasonable.”

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Richer reported from Boston.