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.
Please use Chrome browser for a more accessible video player
‘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”.
Please use Chrome browser for a more accessible video player
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.
Please use Chrome browser for a more accessible video player
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?”
A judge has postponed sentencing in Donald Trump’s hush money case and granted permission for his lawyers to seek a dismissal.
It comes after the Manhattan district attorney said he wouldn’t oppose a motion to delay the sentencing.
In May, a New York jury found Trump guilty of 34 counts of falsifying business records to commit election fraud.
It was the first time a US president had been convicted of or charged with a criminal offence.
Trump had tried to cover up “hush money” payments to a porn star in the days before the 2016 election.
When Stormy Daniels‘ claims of a sexual liaison threatened to upend his presidential campaign, Trump directed his lawyer to pay $130,000 (£102,000) to keep her quiet.
The payment buried the story and he later won the presidency.
Trump denied the charges and said the case was politically motivated. He also denied the sexual encounter took place.
New York State Supreme Court Justice Juan Merchan today delayed the sentencing, which had been due to take place on Tuesday.
The New York case revolved around payments to Stormy Daniels. Pic: AP
The office of district attorney Alvin Bragg had asked the judge to postpone all proceedings until Trump finishes his four-year presidency, which starts on 20 January.
Trump’s lawyers say the case should be dismissed because it will create “unconstitutional impediments” to his ability to govern.
Responding to Friday’s decision, a Trump campaign spokesman said: “The American People have issued a mandate to return him to office and dispose of all remnants of the Witch Hunt cases.”
The judge set a 2 December deadline for Trump’s lawyers to file their motion, while prosecutors have until 9 December to respond.
He did not set a new date for sentencing or indicate when he would rule on any motion to throw out the case.
Read more from Sky News:
Jury in civil court finds Conor McGregor raped woman
Parents pay tribute to daughter killed by ‘poisoned’ shots in Laos
Even before Trump’s win in this month’s election, experts said a jail term was unlikely and a fine or probation more probable.
But his resounding victory over Kamala Harris made the prospect of time behind bars or probation even less likely.
Trump, 78, was also charged last year in three other cases.
One involved him keeping classified documents after he left office and the other two centre on alleged efforts to overturn his 2020 election loss.
A Florida judge dismissed the documents case in July, the Georgia election case is in limbo, and the Justice Department is expected to wind down the federal election case as it has a policy of not prosecuting a sitting president.
Trump last week nominated his lawyers in the hush money case, Todd Blanche and Emil Bove, for senior roles in the Justice department.
When he re-enters the White House, Trump will also have the power to shut down the Georgia and New York cases.
US
Pam Bondi: Key proponent of Trump’s false 2020 election claims set to head justice department after Gaetz withdrawal
Donald Trump has pledged for years to surround himself with ultra-loyalists who can mould his government to his vision without barriers.
That’s precisely why he picked Matt Gaetz. Now he’s out, Pam Bondi is in and she’s equally loyal.
Gaetz was uniquely unpopular on Capitol Hill but ultra-MAGA and ultra-loyal to the president-elect.
He was chosen by the president-elect to do his bidding inside the Justice Department as attorney general.
Critics called his pick “a red alert moment for democracy” and the man a “gonzo agent of chaos” – language that would surely only affirm Trump’s decision in his own proudly disruptive mind.
Matt Gaetz has withdrawn despite Trump putting him forward for attorney general. Pic: AP
If it wasn’t for the fact that the president-elect is himself a convicted felon, and a man found liable in a civil court of his own sexual offences, the prospect of Gaetz, with all his baggage, making it through the nomination process would have seemed remote.
But Donald Trump’s return to the White House suggested anything is possible.
And so, beyond his loyalty, Gaetz was Trump’s test for his foot soldiers on Capitol Hill. How loyal were they? Would they wave through anyone he appointed?
It turns out that Gaetz, and the storm around his private life, was too much for a proportion of them.
At least five Senate Republicans were flatly against Matt Gaetz’s confirmation. We understand that they communicated to other senators and those close to Trump that they were unlikely to be swayed.
They included the Republican old guard like Senator Mitch McConnell.
Beyond the hard “no” senators, there were between 20 and 30 other Republicans who were very uncomfortable about having to vote for Gaetz on the Senate floor.
Please use Chrome browser for a more accessible video player
Trump pick Matt Gaetz withdraws
The key question is whether Gaetz was Trump’s intentional wild card crazy choice that he knew, deep down, would probably never fly.
Was Gaetz the candidate he had accepted would be vetoed by senators – who would then feel compelled to wave the rest of his nominees through?
Will Pete Hegseth’s alleged sexual impropriety concern them as they consider the suitability of the former Fox News host and army major to run the Department of Defence?
What about Tulsi Gabbard, the candidate Russian state TV calls ‘our girl’, and the appropriateness of her running America’s intelligence agencies?
These are all appointments that the politicians on Capitol Hill must consider and confirm in the weeks ahead.
Read more:
Trump hands out top jobs: Who is in, who is out
Musk picked to head up Trump’s new efficiency department
We don’t yet know who Trump will choose to direct the FBI.
There are some names being floated which will make the establishment of Washington shudder but then that’s precisely why Trump was elected. He is the disrupter. He said so at every rally, on repeat.
He was quick to pivot to another name to replace Gaetz.
Bondi is the former attorney general of Florida. Professionally she is in a different league to Gaetz. She’s been a tough prosecutor, with a no-nonsense reputation.
She is also among the most loyal of loyalists. Her attachment to Trump stretches way back.
Pam Bondi speaks during a Trump rally in November 2024. Pic: Reuters
I first came across her in Philadelphia in November 2020 when she was among Trump surrogates claiming the election back then had been stolen from them by Joe Biden and the Democrats.
She was a key proponent of the false claims the election had been rigged and Trump was the rightful winner.
The court cases concluding that was all nonsense didn’t seem to convince her.
Now she is poised to head up the Department of Justice as the country’s top law enforcement official.
US
Donald Trump on day one: Pace of change ‘like nothing you’ve seen in history’, warns campaign official
Within hours of taking office, president-elect Donald Trump plans to begin rolling out policies including large-scale deportations, according to his transition team.
Sky News partner network NBC News has spoken with more than half a dozen people familiar with the executive orders that his team plans to enact.
One campaign official said changes are expected at a pace that is “like nothing you’ve seen in history”, to signal a dramatic break from President Joe Biden’s administration.
Mr Trump is preparing on day one to overturn specific policies put in place by Mr Biden. Among the measures, reported by sources close to the transition team, are:
• The speedy and large-scale deportations of illegal immigrants
• Ending travel reimbursement for military members seeking abortion care
• Restricting transgender service members’ access to gender-affirming care
But much of the first day is likely to focus on stopping illegal immigration – the centrepiece of Trump’s candidacy. He is expected to sign up to five executive orders aimed at dealing with that issue alone after he is sworn in on 20 January.
“There will without question be a lot of movement quickly, likely day one, on the immigration front,” a top Trump ally said.
“There will be a push to make a huge early show and assert himself to show his campaign promises were not hollow.”
Please use Chrome browser for a more accessible video player
Donald Trump ally Matt Gaetz has withdrawn his name from consideration to be the next US attorney general.
But Mr Trump’s campaign pledges also could be difficult to implement.
Deporting people on the scale he wants will be a logistical challenge that could take years. Questions also remain about promised tax cuts.
Meanwhile, his pledge to end the war between Russia and Ukraine in just 24 hours would be near impossible.
Read more:
Police file on Trump pick, Pete Hegseth
Matt Gaetz withdraws from top job
Watch: Musk and Trump’s bromance
Even so, advisers based at Mr Trump’s Mar-a-Lago resort or at nearby offices in West Palm Beach, Florida, are reportedly strategising about ending the wars in Ukraine and the Middle East.
Following his decisive victory on 5 November, the president-elect has moved swiftly to build a cabinet and senior White House team.
As of Thursday, he had selected more than 30 people for senior positions in his administration, compared with just three at a similar point in his 2016 transition.
Stephen Moore, a senior economic adviser in Mr Trump’s campaign, told NBC News: “The thing to realise is Trump is no dummy.
“He knows he’s got two to three years at most to get anything done. And then he becomes a lame duck and we start talking about [the presidential election in] 2028.”
-
Sports2 years ago‘Storybook stuff’: Inside the night Bryce Harper sent the Phillies to the World Series
-
Sports8 months agoStory injured on diving stop, exits Red Sox game
-
Sports2 years agoMLB Rank 2023: Ranking baseball’s top 100 players
-
Sports1 year agoGame 1 of WS least-watched in recorded history
-
Sports3 years ago
Team Europe easily wins 4th straight Laver Cup
-
Environment2 years agoJapan and South Korea have a lot at stake in a free and open South China Sea
-
Environment2 years agoGame-changing Lectric XPedition launched as affordable electric cargo bike
-
Business2 years agoBank of England’s extraordinary response to government policy is almost unthinkable | Ed Conway