Two key defense points Donald Trump and his lawyers have been floating before and since he was indicted on Wednesday for his actions related to attempts to overturn the 2020 presidential election may never see the light of day in court unless he is willing to take the stand -- an act that could blow up in his face.
That is the opinion of attorney Philip Rotner in a column for the Bulwark who claimed that, in order for a jury to understand how the former president made the decisions that he did with regard to trying to overturn the will of the voters, they will need to hear from him which could present a host of problems.
While Trump and his supporters have attempted to make the case that his talk about a stolen election is protected by the First Amendment and therefore should never have been charged by special counsel Jack Smith -- a position former FBI official Chuck Rosenberg called "garbage" -- Rotner wrote that he would need to convince a jury about something only he would know and that will be impossible without his testimony.
"Trump’s two stock legal defenses—that he sincerely believed he had won the 2020 election and that he relied on the advice of counsel in his post-election activities—will be very much in play," he wrote, before outlining the problems with this defense, starting "with the factual problem of Trump proving at trial that he really, most sincerely believed that he won the election. How is he going to do this? Is he going to testify? And what about the fact that virtually every senior member of his own administration—the vice president, the senior leaders of DOJ, the director of national intelligence, officials from the Department of Homeland Security, and senior staff members, not to mention state legislatures and officials, and dozens of state and federal courts—told him otherwise?"
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Rotner identified similar problems with Trump claiming that he was simply following the advice of his attorneys.
"How is Trump to convince a jury that he relied on such legal advice?" he asked rhetorically. "If Trump doesn’t testify—which seems near-certain—who will supply the evidence of this? The attorneys on whom he might claim to have relied—Rudy Giuliani, John Eastman, Jenna Ellis, Sidney Powell—are unlikely to testify because they are either named or unnamed co-conspirators with potential criminal liability of their own. If any of them do testify, they risk being exposed as liars and frauds who can be torn to shreds on the witness stand."
He then added, "Trump and his attorneys obviously know that neither a supposedly sincere belief that the election was stolen nor the claim that he relied on the advice of counsel will be an effective defense if it comes down to a criminal trial. Trump’s ultimate defense will have nothing to do with the facts, the law or the judicial system."
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