The Riverside Press-Enterprise
Trump legal defense may begin
NEW YORK » As new questions swirled this past week about former President Donald Trump’s potential criminal exposure for seeking to overturn the 2020 election, Trump issued a rambling 12-page statement.
It contained his usual mix of outlandish claims, hyperbole and outright falsehoods, but also something that Trump allies and legal experts said was notable and different: the beginnings of a legal defense.
On nearly every page, Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available.
What happened at the Capitol on Jan. 6, 2021, Trump wrote, stemmed from an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”
His statement, while unfounded, carried a particular significance given the intensifying focus on whether he could face criminal charges. If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.
As a potential defense, the tactic suggested by Trump’s statement is far from a guarantee against prosecution, and it presents obvious problems of credibility. Trump has a long history of saying whatever suits his purposes without regard for the truth. And some of the actions he took after the 2020 election, like pressing officials in Georgia to flip enough votes to swing the outcome in that state to his column, speak to a determined effort to hold onto power rather than to address some broader perceived vulnerability in the election system.
But his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.
And the statement also reflected steps Trump is taking behind the scenes to build a new legal team to deal with an array of investigations, including into his pressure campaign to change the outcome of the election in Georgia and his taking classified documents with him when he left office.
Evan Corcoran, a whitecollar defense lawyer and former federal prosecutor brought on by Trump, was involved in drafting the document, according to two people briefed on the matter.
Corcoran has also represented Steve Bannon, a Trump ally who has been indicted by the Justice Department for refusing to cooperate with the House committee investigating the Jan. 6 attack.
The statement came during a week in which the House committee’s hearings drove home Trump’s potential criminal and civil legal exposure by highlighting testimony from aides and advisers documenting what he had been told, and when, about the validity of his election fraud claims and the legality of his strategy for hanging onto power.
At its third hearing Thursday, the committee built a case that Trump had plunged ahead with a scheme to have Vice President Mike Pence unilaterally overturn the 2020 election.
The Justice Department is investigating a number of elements of the Capitol riot and the broader effort by Trump and his allies to keep the White House despite Joe Biden’s victory. Attorney General Merrick Garland has given no public indication that the department is building a case against Trump, who has long contended that the investigations into the Jan. 6 attack are partisan and unfounded and whose side of the story has not been presented in the House committee’s hearings.
But the panel’s investigation has already generated evidence that could increase the pressure on Garland to move more aggressively, a course of action that would carry extraordinary legal and political implications. After prodding from the Justice Department, the House committee signaled in recent days that it would start sharing some transcripts of its witness interviews with federal prosecutors as early as next month.
In a civil case related to the committee’s work, a federal judge concluded in March that Trump and a lawyer who had advised him, John Eastman, had most likely committed felonies in their effort to overturn the election. “The illegality of the plan was obvious,” Judge David O. Carter of U.S. District Court for the Central District of California concluded in that case.
Carter cited two crimes that he said the two men were likely guilty of committing: conspiracy to defraud the United States and obstructing a congressional proceeding. Members of the House committee have made similar suggestions, and some lawyers have contended that Trump could also be vulnerable to a charge of seditious conspiracy.
But successfully prosecuting the potential charges suggested by Carter and others could depend on establishing Trump’s intent — an issue that his statement this past week appeared to address with the argument that he believed his challenges to the outcome were grounded in legitimate questions about the conduct of the election.
Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor, said that in all of the potential crimes that were being looked at in connection with Trump’s conduct, the Justice Department would need to show that he had the intent to commit a crime. Zelenko said that while the new details revealed by the committee would help prosecutors in proving intent, the government still had a range of other issues to overcome in building any prosecution.
“The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway,” said Zelenko, a co-chair of the white-collar defense practice at Crowell & Moring.