'Practical problem': Legal expert reveals why Trump's defense team should be worried
Former President Donald Trump is already trialing some of his potential defenses in court for the January 6 charges in public. However, argued former Solicitor General Neal Katyal on CNN Thursday, none of them are likely to work — and his legal team appears to know it.
"The arguments we're hearing from Trump's legal team, as well as his supporters and backers on Capitol Hill — essentially they say he has a First Amendment right to say things that are not true, that no one can prove he didn't actually believe the election was stolen, and that he was listening to bad advice from his lawyers, advice of counsel," said anchor Anderson Cooper. "Do they work?"
"So far I haven't heard a credible story for any of those arguments," said Katyal. "So the First Amendment has been litigated a lot in conspiracy cases. Defendants all the time say it was just speech, all I was doing was speech. And what the courts routinely do is they say, if it has some sort of action component to it, like if I order you to murder someone, that's just my speech, but it's of course a crime. It's a crime committed through speech. And here the indictment starting at page 2 says, look, we are not punishing Donald Trump for his speech. He can say whatever he wants. It's what he did with that speech, it's the commencement of actions, it's the fake electors plot, it's trying to interfere with the counting of votes on January 6th and the like."
Trump's "state of mind" defense, that he genuinely thought he won the election, Katyal continued, also has two major problems. "One is the factual problem that the indictment really lays out, which is everyone who's anyone told Donald Trump he lost. That includes the attorney general at the time, his top lawyer at the White House, the White House counsel, the National Intelligence officials, the election security officials, all sorts of people. And indeed, Donald Trump himself, according to the indictment, believes he lost, that there's lots of indications of that including telling Vice President Pence, 'The problem with you is you're too honest.'"
And then, there's the simple problem that Trump himself can't be put on the stand to argue any of this, he continued. "As an attorney, if I wanted to put on one of my clients to say I had a reasonable good faith belief in something, I put them on the stand. But you can't, if you're an attorney for Donald Trump, risk putting Donald Trump on the stand. You have to worry he's going to perjure himself. So there isn't a viable way really to put this defense I think forward."
"And that's why we see, Anderson, a pivot toward new arguments that Donald Trump is making today about venue, that this trial shouldn't take place in Washington, D.C., it should take place in West Virginia because people politically like him more in West Virginia," said Katyal. "That is not a legal argument. That will go nowhere. A version of that argument was tried in the George Floyd case, in which I was special prosecutor, that you couldn't try it there because the community was biased against the officers, and the courts routinely rejected that. And they will reject it here every day of every week."
Watch the video below or at the link here.
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