One of Donald Trump’s justifications for attempting to destabilize the 2020 election has been to blame his lawyers. According to one former Justice Department official, this will not work.
Former Principal Deputy Assistant Attorney General for National Security Mary McCord joined former Robert Mueller senior prosecutor Andrew Weissmann and MSNBC anchor Ari Melber on Sunday for a Trump indictment special. She goes over each of Trump’s or his lawyers’ defenses and shows why none of them will stand up in court.
Melber compared the episode to “The George Costanza Defense,” named after the Seinfeld character who said, “Remember Jerry, if you believe it was true, it wasn’t a lie.” That, as Melber said, does not always succeed unless you can invoke the insanity defense. That might be detrimental to a presidential campaign in the United States.
“All criminal charges — almost all of them require them to have some knowledge,” McCord added. “But that’s not the same as saying he was convinced the election was rigged as a get-out-of-jail-free card.” There are a number of things in this indictment that he did, actions that he did that went much beyond what you are legally authorized to do when you are certain you did not lose the election.”
Melber gave another example, saying that just because someone believes a bank is evil doesn’t give them the right to loot it.
“And [it] might be a ‘not guilty by reason of insanity’ defense, but not intent for what you’ve done,” McCord explained. “You don’t have the right to go take it simply because you believe the bank is evil.” It may even use a simpler example. Assume you believe the bank miscalculated the interest on your savings account. So it’s not even at the bank, evil, it’s just incorrect. And you asked for it, and they disagreed, but you’re convinced your arithmetic is correct and their math is incorrect. You just don’t get to go rob a bank. That is exactly what we are discussing here.”
According to the indictment, Trump could not have rationally anticipated that there was enough fraud to influence the outcome of the 2020 election.
“But even if he did,” she reasoned, “that doesn’t mean you can stage a scheme of phony electors and have their ballots counted by the vice president.” It doesn’t imply you may place truly illegal pressure on state officials, such as threatening criminal prosecution, as he did with Secretary of State Brad Raffensperger.”
Weissmann called it “possibly the worst defense” he’d ever heard, claiming that “no jury will go down that road with him.”
Another Trump explanation is that he was “joking” about his plans to overthrow the government or that he wasn’t planning to do anything like that. While Trump may argue that it did not occur, McCord disagrees.
“It did pretty much come to fruition,” she remarked. “This sense of a conspiracy is — usually when individuals say we weren’t going to do it in the first place. As a result, it does not work here. It doesn’t work in practice, and it’s something that the law has had to deal with in many cases.”
Trump’s next claim is that his First Amendment rights are being abused, and that his attacks on the 2020 election are protected speech.
“This is something that Jack Smith addressed right at the start of the indictment, and he makes clear that Mr. Trump has the right to speak under the First Amendment.” He even has the freedom under the First Amendment to lie about his feelings about the election results. But he does not have the right to engage in fraudulent behavior. And fraud is always accompanied by some form of expressiveness.
That is the essence of deception. You have engaged in behavior, here a conspiracy, many conspiracies based on fraud and deceit. So there is a contrast between speech, which he is free to do, and conduct, which is something obvious in the indictment, for the talking points for Trump and his fans, it makes for a short clip and makes it appear as though what the judge has done is illegal.”
Finally, Trump claims that his lawyers informed him that the 2020 election was rigged, and he believed them.
“When one of your co-conspirators is a lawyer, you don’t get to rely on the co-conspirators’ voice as a defense,” McCord joked. “From the unindicted co-conspirators who have been identified, we know that the majority of those, in fact, all but one, were acting as lawyers.” That’s ‘item one,’ and ‘thing two’ is that you can’t just go cherry-picking when all of your lawyers are saying you there’s no big fraud and that this fraudulent elector scheme won’t work. You can’t just keep trying new lawyers and looking for one that agrees with you.”
Weissmann argued that Mar-a-Lago is the ideal counter-argument to Trump’s assertion that he trusted his lawyers. In that case, his lawyers counseled him on how to deal with the FBI, but he constantly disregarded their advice. Indeed, Elie Mystal, The Nation’s legal commentator, claimed this week that Trump is now ignoring any plausible legal defenses.
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