As the former president’s attorneys grow more concerned that his client may be charged for his role in the effort to rig the 2020 election, they are proactive drafting a legal defense against criminal charges from the Justice Department.
According to three persons with knowledge of the situation and written emails examined by Rolling Stone, members of the former president’s legal team have already started strategizing strategy and potential defenses. Two of the sources claim that Trump has received at least two briefings on various legal defenses this summer.
After Cassidy Hutchinson, a former Trump White House adviser, testified in June before the House committee looking into the matter on January 6, that campaign picked up steam.
One individual familiar with the situation said that members of the Trump legal team are discretely preparing in the event that charges are brought. Not doing so would be professional malpractice. Do the ‘previous president’s’ lawyers take Cassidy at his word? No. Do they believe charging him would be wise on the part of the Justice Department? No. But at this point, you are not acting in the ‘former’ president’s best interests if you don’t believe that criminal charges are at least somewhat plausible.
The sources discussed internal discussions under the condition of anonymity. Requests for comment on this article were not met with any responses from official Trump representatives.
According to the three sources, Trump’s team has discussed tactics that would involve placing the responsibility for the attempts to rig the election on Trump’s aides. This reflects a larger effort to identify a fall guy or fall guys. One of the sources with knowledge of recent discussions in Trumpland claims that Trump received some awful legal advice from lawyers who, some people would argue, should have or must have known better. A significant defense would be the use of counsel’s advice.
Defenses based on the First Amendment and the ability to petition the government regarding a political grievance are some other possible tactics. These defenses are considered plausible counterarguments to accusations relating to the phony elector scheme internally.
According to The Washington Postreported this week, federal prosecutors have questioned Mike Pence’s former vice president about Trump’s involvement in his campaign’s attempt to present slates of those phony electors. Trump’s campaign and supporters enlisted the help of the phony electors to declare Trump the winner of their states’ electoral college votes after he lost the election in November. The goal was to compel officials in swing states to proclaim Trump the winner while giving Trump’s conspiracy theories about election fraud a veneer of legal credibility. The attempt was unsuccessful, as it has been since attracted the attention of prosecutors, not only at the Justice Department, but also at in the swing states, where Republicans put together slates of fictitious electors.
Trump’s existing staff has admitted they would need to add additional legal firepower to manage the legendary legal defense if the Justice Department did file charges. For something like that, you’d need a genuine heavyweight at the head of “the legal team,” but as of right now, no one knows who that would be, according to a Trump aide.
Some of Trump’s more senior legal and political advisers have doubts about Attorney General Merrick Garland’s willingness to press charges. Long considered as the quintessential institutionalist, Biden’s choice for attorney general is leery of the precedents or unexpected repercussions that could result from indicting a former president.
I do believe that criminal charges might be brought. Ty Cobb, a former top attorney in Trump’s White House, told Rolling Stone in June that whether they are wise for the nation to do so is a more challenging question to answer. Certainly possible for Trump and “Mark” Meadows. And for everyone else, including attorneys, who cheated during formal inquiries or hearings.
It would be the first time in American history that a former president had criminal charges brought against them for offenses committed while in office. Presidents shouldn’t be indicted while in office, according to a Justice Department memo from the Nixon administration that was reinforced under the Clinton administration. Given the lack of precedent, it is unclear how a former president could be prosecuted lawfully, and doing so would draw constitutional objections that could end up before the Supreme Court.
Additionally, Trump tells supporters that it could be politically advantageous despite the fallout that could follow a federal indictment. The former president warned supporters at a rally in Texas earlier this year that if prosecutors pursued him, there would be the largest protests ever in Washington, D.C., New York, Atlanta, and other cities.
According to a source with direct knowledge of the situation, Trump has frequently used variations of that statement when speaking to close friends and confidants, including this summer during social gatherings. He claims, according to the source, that it would make the crowd size on January 6 seem insignificant in contrast.