Donald Trump’s defence strategy and how his legal team could challenge the January 6 charges
Donald Trump – who is seeking re-election in 2024 – has been charged with plotting to overturn his 2020 election defeat to US President Joe Biden.
How will Mr Trump counter the accusations – and what can we expect as the case moves forward?
The charges
Mr Trump faces three charges of conspiracy – one to defraud the United States, another to obstruct the January 6th certification of an official government proceeding and a third against the peoples’ right to vote and have that vote counted. A fourth charge relates to the obstruction of an official proceeding.
The 77-year-old denies any wrongdoing.
His campaign has called the latest allegations over the Washington DC insurrection – the third time in four months he has been criminally charged – “nothing more than the latest chapter” in what it described as a politically motivated “witch hunt”.
Prosecutors say Mr Trump pushed unproven fraud claims he knew were untrue, pressured state and federal officials – including Vice President Mike Pence – to alter the results and finally incited the Capitol assault in a bid to undermine US democracy and cling to power.
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‘Trump’s lies fuelled Capitol riot’
What will be Trump’s first line of defence?
Mr Trump’s legal team is characterising his 45-page indictment in the special counsel’s 2020 election interference investigation as an attack on the former president’s right to free speech.
His lawyers plan to argue he had a right under the First Amendment of the US Constitution to overturn the result.
Hours after the charges were revealed, Mr Trump’s attorney John Lauro accused the Justice Department of having “criminalised” the First Amendment – and asserted his client had relied on the advice of attorneys around him in 2020.
“What President Trump had was an actual opinion of counsel that his request to Vice President Pence was completely lawful and completely constitutional,” he told NBC’s Today Show.
“You’re entitled to believe and trust advice of counsel,” he said.
“You had one of the leading constitutional scholars in the US, John Eastman, say to President Trump, ‘This is a protocol that you can follow, it’s legal’.”
“That eliminates criminal intent,” Mr Lauro said, adding everything Mr Trump did “was to get at the truth”.
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The key question in latest Trump case
What does the First Amendment protect?
The First Amendment does indeed give wide berth for all manner of speech, and it’s well established that lying to the public isn’t itself a crime.
Special counsel Jack Smith and his team appear to have anticipated the First Amendment line of defence, conceding head-on in their indictment Mr Trump had the right to falsely claim that fraud had cost him the election and to legally challenge the results.
But they also said his conduct and that of his “co-conspirators” he’s alleged to have plotted with – who have not been named as they have not been charged with any crimes – went far beyond speech.
What do the experts say?
Experts say there’s little legal merit to the First Amendment claims, particularly given the breadth of steps taken by the ex-president and his allies which prosecutors say transformed mere speech into action in a failed bid to undo the election.
Those efforts, the indictment says, amounted to a disruption of a “bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election”.
“Saying a statement in isolation is one thing. But when you say it to another person and the two of you speak in a way and exchange information in a way that leads to action – that you want to take action to do something with that speech – then arguably it becomes unprotected,” said Mary Anne Franks, a law professor at George Washington University.
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Is Trump going to jail?
‘Trump believed his lies’
Mr Trump’s legal team has also suggested his defence may at least partly focus on the idea that he was acting in good faith because he genuinely believed his bogus election fraud claims.
But the indictment is careful to show how Mr Trump was repeatedly warned by people close to him that there was no truth to his claims.
Some of the comments detailed in the indictment suggest Mr Trump knew he had lost and that his actions were wrong.
Days before the riot he told Mr Pence he was “too honest” after the vice president said he didn’t have the authority to reject electoral votes, the indictment says.
“I can imagine that prosecutors will use that line over and over and over in the trial, in their opening statement and closing argument, to show that he really didn’t believe the things he was saying,” said Brandon Fox, a former federal prosecutor who now works as a defence attorney.
Mr Pence has spoken extensively about Mr Trump urging him to reject President Biden’s election victory in the days leading up to the deadly attack.
“President Trump is wrong. I had no right to overturn the election,” Mr Pence, who has often shied away from confronting his former boss, said in March.
“And his reckless words endangered my family and everyone at the Capitol that day, and I know history will hold Donald Trump accountable.”
Read more:
The case against Donald Trump
Of all the charges Trump faces, these are the most serious
Witnesses
Mr Pence – who is among those challenging Mr Trump for the 2024 Republican presidential nomination – could be a star witness in the trial, and Mr Lauro has said he expects him to testify.
“We expect that he will be a witness, but what he has said consistently is that he never thought that the president acted criminally,” he told CBS Mornings.
“Mr Pence is a lawyer. Not once did he say, ‘Mr Trump, what you’re asking me is criminal, don’t do that’.”
Another challenge for Mr Trump’s defence is many of the witnesses he would want to call to the stand to say they told him there was election fraud are co-conspirators who will likely be reluctant to testify.
“Typically in federal prosecutions, those unnamed co-conspirators are not that thrilled about testifying for the defence because they are worried about being charged in the future,” Mr Fox said.
Speedy trial?
Mr Smith said he would pursue a speedy trial, in his remarks after he detailed the charges against Mr Trump.
However, Mr Lauro has suggested he will seek to push the trial back to a later date and
“This is going to be one of the biggest cases in the history of the United States,” he told NPR, adding his legal team wants “enough time to study the documents, be able to interview witnesses and look at the evidence in its totality”.
Mr Lauro has called the potential timeline “absurd”, telling NBC’s Today programme Mr Smith “had three and a half years [to investigate]”.
“Why don’t we make it equal?”
It’s 5.30am, but the car park outside a laundrette in south central Los Angeles is already bustling.
A woman is setting up a stand selling tacos on the pavement and the sun is beginning to rise behind the palm trees.
A group of seven women and two men are gathered in a circle, most wearing khaki green t-shirts.
The leader, a man named Francisco “Chavo” Romero, begins by asking how everyone is feeling. “Angry,” a few of them respond. “Proud of the community for pushing back,” says another.
Ron, a high school history teacher, issues a rallying cry. “This is like Vietnam,” he says. “We’re taking losses, but in the end we’re going to win. It’s a war.”
Francisco ‘Chavo’ Romero leads a volunteer group, attempting to warn people ahead of ICE raids
This is what the resistance against Donald Trump’s immigration policy looks like here. In the past month, immigration and customs enforcement agents – known as ICE – have intensified their raids on homes and workplaces across Los Angeles.
Since the beginning of June, nearly 2,800 undocumented immigrants have been arrested in the city, according to the Department of Homeland Security. The previous monthly high was just over 850 arrests in May this year.
Police use tear gas against protesters, angry at a recent immigration raid at a farm in Camarillo, California. Pic: AP
Videos have circulated online of people being tackled to the ground in the car park of DIY shops, in car washes and outside homes. The videos have prompted outrage, protests and a fightback.
“Chavo” and Ron belong to a group of organised volunteers called Union del Barrio. Every morning, a group of them meet, mostly in areas which have high immigrant populations.
The day I meet them, they’re in an area of LA which is heavily Latino. Armed with walkie talkies to communicate with each other, megaphones to warn the community and leaflets to raise awareness they set out in cars in different directions.
A volunteer from Union del Barrio shows Sky’s Martha Kelner how they try to stay one step ahead of ICE agents
They’re looking for cars used by ICE agents to monitor “targets”.
“That vehicle looks a little suspicious,” says Ron, pointing out a white SUV with blacked-out windows, “but there’s nobody in it”.
An elderly Latino man is standing on a street corner, cutting fruit to sell at his stall. “He’s the exact target that they’re looking for,” Ron says. “That’s what they’re doing now. The low-hanging fruit, the easy victim. And so that is proving to be more successful for their quotas.”
This man, selling fruit on a street corner in LA, is a potential target of immigration agents
In the end, it turns out to be a quiet morning in this part of LA, no brewing immigration operations. But elsewhere in the city, dawn raids are happening.
ICE agents are under pressure from the White House to boost their deportation numbers in line with Donald Trump’s campaign promise to crack down on illegal immigration.
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In June, tear gas and rubber bullets were fired at protestors demonstrating against immigration raids
Maria’s husband Javier was one of those arrested in LA. He came to the United States from Mexico when he was 19 and is now 58.
The couple have three grown-up children and two grandchildren. But Javier’s work permit expired two years ago, according to Maria and so he was living here illegally.
Maria’s husband Javier was arrested after his work permit expired
She shows me a video taken last month when Javier was at work at a car wash in Pomona, an area of LA. He is being handcuffed and arrested by armed and masked ICE agents, forced into a car. He is now being held at a detention centre two hours away.
“I know they’re doing their job,” she says, “but it’s like, ‘you don’t have to do it like that.’ Getting them and, you know, forcing people and pushing them down on the ground. They’re not animals.”
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US troops accused of ‘political stunt’ after park raid
Maria wipes away tears as she explains the impact of his absence for the past four weeks. “It’s been so hard without him,” she says. “You feel alone when you get used to somebody and he’s not there any more. We’ve never been apart for as long as this.”
The family have a lawyer and is appealing for him to remain in the US, but Maria fears he will be sent back to Mexico or even a third country.
Maria fears her husband, who has lived in the US for nearly 40 years, will be sent back to Mexico
“I don’t know what to say to my grandkids because the oldest one, who is five was very attached to his papas, as he calls him. And he’s asking me, ‘When is papa coming home?’ and I don’t know what to say. He’s not a criminal.”
The fear in immigrant communities can be measured by the empty restaurant booths and streets that are far quieter than usual.
People in LA are being asked to report sightings of ICE officials so others can be warned
I meet Soledad at the Mexican restaurant she owns in Hollywood. When I arrive, she’s watching the local news on the TV as yet another raid unfolds at a nearby farm.
She’s shaking her head as ICE agents face off with protesters and military helicopters hover overhead. “I am scared. I am very scared,” she says.
All of her eight employees are undocumented, and four of them are too scared to come into work, she says, in case they get arrested. The process to get papers, she says, is too long and too expensive.
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Soledad, who owns a Mexican restaurant, plans to hide her illegal workers if immigration officials arrive
“They call me and tell me they are too afraid to come in because immigration is around,” she says.
“I have to work double shifts to be able to make up for their hours, and yes, I am very desperate, and sometimes I cry… We have no sales, and no money to pay their wages.”
There is just one woman eating fajitas at a booth, where there would usually be a lunchtime rush. People are chilled by the raids.
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Soledad says she plans to hide her illegal workers if immigration officials arrive.
“I’ve told them, get inside the fridge, hide behind the stove, climb up where we have a space to store boxes, do not run because they will hunt you down.”
The White House says they’re protecting the country from criminals. ICE agents have been shot at while carrying out operations, their work becoming more dangerous by the day.
The tension here is ratcheting up. Deportation numbers are rising too. But the order from Donald Trump is to arrest even more people living here illegally.
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