Here’s the full text of the op-ed:
Barely hours after Donald Trump was indicted Tuesday for engaging in a wide-ranging criminal conspiracy to overturn U.S. democracy, his defense lawyer, John Lauro, went on Fox News and telegraphed his coming strategy. Lauro said prosecutors cannot prove Trump truly “believed” he’d lost his 2020 presidential reelection, ensuring a not-guilty verdict.
That’s gotten lots of attention, most of it appropriately dismissive. But Lauro also slipped another assertion into his appearance that merits more worry: He declared that Trump merely acted on what he thought was reasonable advice from his lawyer, John Eastman.
“He had advice of counsel, a very detailed memorandum from a constitutional expert,” Lauro said of Trump and Eastman. Lauro argued this convinced Trump that he could reasonably ask Vice President Mike Pence to halt Congress’s count of presidential electors to allow states to revisit voting irregularities.
“That’s the only thing that President Trump suggested,” Lauro said, adding that everything Trump attempted “was done with lawyers giving him advice.” Lauro repeated this on NBC’s “Today” show, insisting Trump is “entitled” to “trust advice of counsel.”
This suggests that an “advice of counsel” argument will be central to Trump’s defense. Two of the indictment’s charges are that Trump obstructed the official proceeding of the electoral count and entered into a conspiracy to do so. But the obstruction charge requires proving “corrupt intent,” which could be undermined by the claim that he acted on his lawyers’ advice.
“I’ve always thought this might be his strongest argument,” New York University law professor Ryan Goodman, who has written extensively about the case, told me. Though Goodman believes this “won’t work,” he said it deserves more attention.
Eastman’s theory that Pence had the power to halt the electoral count was utterly baseless. But Matthew Seligman, an election law expert at the Stris and Maher firm, points out that Trump’s lawyers can argue that Trump, who isn’t exactly a legal mastermind, had no reason to doubt what he was being told.
“Prosecutors will need to argue that Trump could not have relied on Eastman’s advice in good faith, because his theories were so outlandish,” Seligman told me.
Trump’s argument could open the door to one juror concluding that, even if those theories were crazy, Trump grasped at them in desperation but in good faith. “If there’s a way for Trump to defeat these charges, this is the way,” Seligman said. “On the law, the prosecution can and should prevail on this point. But they will have to show that Trump adopted these theories in bad faith.”
To be clear, the indictment contains lots of ammunition against this defense. For instance, it shows Pence repeatedly told Trump he had no such authority. On one occasion, Trump blithely suggested he would “prefer” to believe otherwise. On another, Trump rebuked Pence for refusing to abuse his authority: “You’re too honest.”
Clearly Trump knew Eastman’s theory was baloney. But the rub is getting 12 jurors to agree — not to mention, perhaps, five Supreme Court justices.
Goodman agrees this is a real issue, but sees it as surmountable. That defense, he notes, doesn’t rebut other charges, such as conspiracy to defraud the United States, or other damning evidence, such as Trump’s pressure on a top Georgia official to “find” votes for him. Still, Goodman says, it “could knock out a huge chunk” of the indictment.
Trump’s propagandists have long worked to manufacture the impression that all these events rested, in some sense, on a foundation of innocent intent. He really believed he’d won. He was gratified by the mob but never intended violence. He merely exercised his legal options. This monumental gaslighting has clouded our national accounting with what really happened: A concerted, premeditated and (if a jury agrees) criminal plot to subvert U.S. democracy at its foundations, undertaken at the highest levels of power.
As David French writes for the New York Times, this is what’s on the line in the coming trial: Not just meting out justice to Trump, but getting millions of his supporters to accept the magnitude of his guilt. Disproving the argument that Trump acted legitimately on his lawyers’ advice could help: It could prove key to convicting Trump — but it would also deepen our reckoning with the nature of his crimes against the country.
And if Trump can convince a jury that he did legitimately act on advice of counsel? The stakes of getting this wrong are highly unsettling to contemplate.