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Trump’s Best Legal Defense Has a Fatal Flaw

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Donald Trump is being arraigned on Thursday for conspiracy and obstruction charges related to his attempt to overturn the 2020 election. As has been noted by nearly all legal commentators, the indictment was worth the wait. It targets in a single filing the multiplicity of crimes involved in the former president’s attempt to undo the 2020 election and focuses on Trump as the sole defendant in all, thereby eliminating the six legal fabulists charged only as unindicted co-conspirators who might have otherwise been able to provide an “advice of counsel” type of defense. While Rudy Giuliani and the rest of the unnamed co-conspirators will someday have their day in court, it will be as criminal defendants in their own cases.

The indictment confirms what I and many others had expected: the apparent cooperation roles of two key witnesses who snubbed the Jan. 6 congressional committee, former Vice President Mike Pence and former White House chief of staff Mark Meadows. It is now clear that Pence will provide testimony as damning as Team Trump surely feared. For example, Pence is quoted in the indictment as reporting that Trump reprimanded him for refusing to help overthrow the election, chastising him for being “too honest.” Meadows is, like Pence, also identified in the indictment by title, not by name, and notably not as one of the “co-conspirators.” As chief of staff, he was a witness to key matters covered by the indictment, particularly crimes committed by Trump with respect to the Georgia vote count.

The indictment seems to corroborate a long-standing expectation held by many of us courtroom veterans that Meadows’ absence from the scene indicated that he was cooperating with the government, and at trial will replicate the devastating role played by Gambino crime family captain “Sammy the Bull” Gravano in testifying against the family boss, John Gotti.

However worthy the charging decisions that were made, the media coverage has been problematic in two ways.

First, many analyses have incorrectly described the situation confronting Giuliani and the five other unindicted co-conspirators, concluding that with the filing of an indictment, the six have now been placed on notice that they are in legal peril and thus must contemplate possibly cooperating. These analyses usually conclude that the DOJ decided not to indict them now to induce them to cooperate later.

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In reality, the moment Jack Smith was appointed some nine months ago, a lawyer representing any of the six would have been committing legal malpractice by not immediately engaging, to at least some degree, with the DOJ to determine his or her client’s status in the investigation and what, if any, options existed to avoid or mitigate criminal charges, including cooperation. You cannot understand the government’s position and intentions concerning your client unless you ask, and prosecutors will not be shy to tell you. If a deal can be struck, great. If not, at least you tried and gained some insight not otherwise available. It’s notable that Giuliani reportedly had at least one proffer session with the government.

For anyone in that position, time is the enemy. If a potential co-defendant beats you to the punch and provides information to the government that you could have provided, the significance of your potential cooperation is thus diminished, leaving you with less bargaining room for leniency. Adding to the problem, to the degree to which that witness further implicates you, or other witnesses or evidence come to the fore, the wait will have made your legal position even more precarious. The “early bird” maxim was likely the route successfully navigated by Meadows months ago.

A decision to cooperate can, of course, be made at this late date—it will just be a much worse deal for the potential defendant.

Bottom line, Jack Smith’s choice not to charge the six was made so that they will not be defending themselves at the Trump trial, and thus will not provide a jury with some sort of rational explanation for certain of the events at issue. If Trump were to call them at his trial now, each, as an unindicted co-conspirator, would be mad not to invoke his or her Fifth Amendment privilege against self-incrimination. Finally in this regard, the single defendant choice also substantially streamlines the trial and keeps the focus where it most belongs.

The second problem with the otherwise excellent media coverage is an overestimation of the burden on prosecutors to prove Trump’s criminal intent. Of course, every criminal prosecution requires proof of criminal intent. Yet only 2 percent of federally charged defendants risk going to trial and force the government to meet that burden, and of those who take that risk, 90 percent are convicted notwithstanding the burden.

In the last analysis, the question for Team Trump is What is our defense? As reported in the media, his lawyers have said it is either that “all presidents lie” and lying is not a crime, or that his actions were based on the advice he was given by “experts” like the six unindicted co-conspirators. The first is no defense at all, and any counsel whose defense rests on convincing the jury that his client is a prolific liar who deceived the American people about the 2020 election is helping the government’s case, not his own.

Trump’s ability to mount the second defense, a lack of criminal intent, runs up against two very substantial courtroom realities.

First, except for cases involving a trial defendant’s confession, the evidence establishing Donald Trump’s criminal intent is as overwhelming as I have seen in my 40-plus years in the courtroom. Second, as pointed out before, none of the six “experts” he allegedly relied upon are likely to be available to so testify. Thus, the only way the former president can rebut the mountain of evidence establishing he knew he lost the election and that his attempts to overturn the result were illegal is to testify in his own defense and somehow convince a jury it was all an innocent mistake.

Even if the case against him were less overwhelming, as I have argued previously, Donald Trump is incapable of successfully testifying on his own behalf. He possesses no real and exculpatory facts to present to a jury and lacks the emotional and intellectual self-control to get through a direct examination, let alone a hostile cross-examination loaded with the legal equivalent of nuclear weapons. The hardest task for whoever cross-examines Donald Trump would be to whittle it down to the best three days’ worth of material so as not to overdo it.

Bottom line—in one of the strongest and best-crafted prosecutions imaginable, we have a defendant who is historically incapable of successfully defending himself. That Jack Smith and his team have created a courtroom nightmare in which—absent a MAGA Trumpster somehow getting on the jury to hang a potential verdict—Donald Trump has no escape. This is a reality not to be glided over.

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