Trump has few options for defending himself against Jan. 6 charges: legal expert

Donald Trump will likely argue that he sincerely believed that he won the 2020 election to justify his efforts to overturn the results, but legal experts warn that defense is risky and ineffective.

Special counsel Jack Smith's team used the phrase "knowingly false" dozens of times to describe Trump's election fraud claims, and the indictment lists more than 100 alleged falsehoods made by the former president -- who doesn't have to prove he believed those statements, but has signaled he would try, wrote legal expert Steven Lubet in a new column for CNN.

"Trump himself would be the logical witness to his own innocent beliefs," wrote Lubet, a professor emeritus at the Northwestern University Pritzker School of Law. "Testifying, however, would carry many risks for him. To start with, upon voluntarily taking the stand, Trump would waive the Fifth Amendment’s protection from responding to questions whose answers could be self-incriminating, thus exposing himself to cross examination on every aspect of the charged crimes. He could not refuse to answer questions, as he did over 400 times in a deposition taken in the New York attorney general’s civil suit concerning his business practices."

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"The result would likely be devastating," Lubet wrote. "At a minimum, Trump would be questioned about every false statement alleged in the indictment. If he denied making the claims, there would almost certainly be prosecution witnesses to contradict him."

The former president's other key defense -- blaming his alleged crimes on advice he received from his lawyers -- could also backfire.

"Mounting an advice of counsel defense, for its part, means waiving attorney-client privilege," Lubert wrote. "In other words, John Eastman, Rudy Giuliani and the entire 'gaggle of crackpot lawyers,' as Mike Pence called those who advised Trump, could not claim confidentiality if subpoenaed by the prosecution to testify against their erstwhile client."

Those lawyers have either been indicted themselves or have been identified as unindicted co-conspirators, so they could assert the Fifth Amendment themselves and undermine Trump's defense, and even if his attorneys and former aides were willing to testify on his behalf, much of that would be impermissible as hearsay.

"In the end, Trump will have to deal with the key accusation in the indictment: 'Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew they were false,'" Lubet wrote.

"For once in his life," he added, "Trump cannot count on talking his way out of it."