Here Is Why Trump's Lawyers Say His Post-Election Conduct Was Constitutionally Protected

When he alleged fraud and sought help from government officials, they say, Trump was exercising rights guaranteed by the First Amendment.

The indictment that Special Counsel Jack Smith unveiled last week portrays Donald Trump's efforts to reverse Joe Biden's victory in the 2020 election, including his appeals to state officials and Vice President Mike Pence, as a criminal conspiracy that violated three federal statutes. Trump attorney John Lauro, by contrast, argues that his client was merely exercising his First Amendment right to petition the government for redress of his grievances.

Lauro, who outlined the former president's defense in interviews on ABC, CBS, NBC, CNN, and Fox News yesterday, said Trump believed then and still believes his grievances about the election were justified. And in pressing election officials, state legislative leaders, and Pence to act on his unsubstantiated fraud claims, Lauro maintains, Trump was pursuing remedies he reasonably believed to be legitimate. As Lauro sees it, Trump therefore lacked the criminal intent that federal prosecutors will have to prove beyond a reasonable doubt.

When Trump asked Georgia Secretary of State Brad Raffensperger to "find" the votes that would be necessary to award him that state's 16 electoral votes, for example, he was not, according to Lauro, soliciting election fraud. To the contrary, he was asking Raffensperger to do his job by correcting election fraud. Likewise when Trump asked Republican legislators in states such as Arizona and Michigan to certify his electors instead of Biden's.

What about the "alternate" electors who, at the urging of Trump's lawyers, presented themselves as "duly elected and qualified" in seven states that Biden had officially won? "Alternate electors are used in every four-year cycle," Lauro told Dana Bash on CNN. "The Senate parliamentarian acknowledged to Vice President Pence that they always receive protest alternate electors. None of those electors were counted. Vice President Pence was completely aware of the nature of the protest, of the nature of the right to speech."

In public comments and in private conversations with Pence, Trump urged him to accept those "alternate" slates and/or reject Biden's when he presided over the congressional tally of electoral votes on January 6, 2021. Had Pence done that under the scenario that Trump imagined, the Republican-controlled House of Representatives would have resolved the purported conflict. But Lauro emphasized that Trump "ultimately" asked Pence merely to "pause" the tally so that the relevant state legislatures would have an opportunity to reconsider which slates should be recognized.

This was Trump's "final ask," Lauro said, as reflected in the speech he gave during the "Save America" rally at the Ellipse that preceded the Capitol riot. "If Mike Pence does the right thing, we win the election," Trump told his supporters. "States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people."

As the indictment explains, it was not true that "the states got defrauded," at least not in the sense that fraud was extensive enough to make a decisive difference—a claim that was repeatedly debunked by state and federal officials, including Republicans who had supported Trump's reelection. Nor was it true that state legislatures "want[ed] to recertify"; to the contrary, the Republican legislative leaders to whom Trump appealed uniformly rejected that suggestion. But in making his "final ask," Lauro says, Trump was relying on legal advice from John Eastman, a former dean of Chapman University's law school and "an esteemed constitutional scholar."

Eastman acknowledged that the "pause" he proposed would violate the Electoral Count Act. But that statute, he argued, was unconstitutional, so the course of action he recommended would be consistent with a higher law, although he also admitted it was likely that the Supreme Court would unanimously reject that claim.

Pence repeatedly refused to do what Trump wanted, saying it was not within his constitutional powers as vice president. But as Lauro tells it, this was a disagreement with colorable arguments on both sides, and Trump did not commit a crime simply because he favored the side that was consistent with his cause.

Pence has repeatedly condemned Trump for demanding that "I choose him over the Constitution." He has described the advisers on whom Trump relied as "crank" and "crackpot" lawyers. But even Pence has expressed skepticism about whether Trump can be held criminally liable for listening to them.

The indictment describes Eastman as one of Trump's co-conspirators. Civil rights attorney Harvey Silverglate, who is representing Eastman, argues that he did nothing to justify that characterization. "He acted in the highest traditions of the legal profession to advise his client, even if some of his theories were at the very boundary of the law," Silverglate wrote in a letter to The Boston Globe. "There is nothing unlawful, much less criminal, about coming up with creative, boundary-pushing legal theories."

While Pence rejected Eastman's theories, Lauro says, he was sympathetic to some of Trump's claims—in particular, his complaints about pandemic-inspired changes to election procedures. According to Lauro, Pence—who, like many others in Trump's circle, did not buy his stolen-election fantasy—nevertheless agreed that it was appropriate for Congress to consider allegations of election irregularities, although he did not agree that they justified sending supposedly disputed slates "back to the states."

While "people disagree about constitutional principles all the time," Lauro said on NBC, "it never leads to a criminal charge." Trump "acted under the advice of counsel when he petitioned" Pence, Lauro added, and that was protected "under the First Amendment."

In short, Lauro says, the Justice Department is attempting to criminalize differences of opinion about an empirical question (whether systematic fraud delivered a phony victory to Biden) and legal questions such as the propriety of "alternate" electors and the constitutionality of the intervention that Pence rejected. The government's case, he argues, is plainly inconsistent with the First Amendment, which protected Trump's right to complain about the election and his right to solicit the assistance of state and federal officials in addressing his complaints.

George Washington University law professor Jonathan Turley has a similar take. Writing in The Hill, Turley notes that the First Amendment protects political speech even when it is false and even when the speaker knows it is false, as the indictment acknowledges: "The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won."

Yet the case against Trump, Turley argues, "sets up the federal government as the arbiter of truth" and "essentially charges Trump with not accepting the 'truth.'" If Trump sincerely believed that the election was stolen, he says, "the indictment collapses," because that means he did not have the criminal intent required by the government's conspiracy charges.

"In an effort to demonstrate his knowledge, the indictment details how many people told Trump that he was wrong about the election and wrong about the law," Turley writes. "I was one of those voices. Trump did not listen to me, most legal analysts or even his White House counsel. Instead, he listened to a small group of lawyers who assured him that a challenge might succeed and that there was evidence of massive election fraud. But Trump is allowed to seek out enablers who tell him what he wants to hear."

George Mason law professor Ilya Somin thinks that's wrong. "Even if Trump did manage to delude himself into believing he had actually won the election, his conduct was still culpable," Somin writes in a Volokh Conspiracy post. "If I steal your valuable ring because I have persuaded myself (despite overwhelming evidence to the contrary) that I am its true owner, I am still guilty of theft. The same logic applies here. Trump had every reason and opportunity to learn he had lost. If instead he chose to indulge in self-delusion, which he then used to justify his scheme to overturn the election, he is guilty for much the same reasons as the thief who—without any justification—imagines himself to be the rightful owner of the object he steals."

Nor does Somin think it makes a difference that Trump relied on legal advice from Eastman et al., any more than the imagined thief could escape conviction by citing "cr[a]ckpot lawyers" who "assured him he owned someone else's property." In any case, Somin says, Trump "had overwhelming evidence he lost [the] election and privately admitted he did."

Smith clearly thinks evidence concerning what Trump "privately admitted," which the indictment cites to show his claims were "knowingly false," is important. But unlike the evidence regarding the election outcome, the evidence regarding what Trump actually believed, which is frequently contested or ambiguous, seems less than overwhelming.

As the Foundation for Individual Rights and Expression (FIRE) noted in a statement about the indictment, "fraud and speech integral to criminal conduct do not enjoy First Amendment protection." But while "the government may, for example, criminalize lying on an insurance claim, or passing a note to a bank teller to commit bank robbery," FIRE said, "these exceptions must remain narrow and well-defined in our laws and jurisprudence." To convict Trump, it added, "a jury must hold DOJ to its burden of proving beyond a reasonable doubt that former President Trump (1) knew his election fraud claims were false but repeated them anyway—'corruptly'— in an attempt to (2) have others ignore their legal duties in order to (3) prevent certification of the electoral vote."

Lauro thinks the government cannot possibly meet that test. Trump "believes he won, and the Biden administration will never be able to prove beyond a reasonable doubt that he didn't," he said on NBC. "What he's being indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman, that he could petition his own vice president and ask his vice president to pause the voting on January 6th to give the states one last chance to certify or re-audit. That was the ultimate ask that President Trump made in his Ellipse speech. That's clearly protected."