The Daily - The Legal Strategy Behind the Latest Trump Indictment

Episode Date: August 8, 2023

To win a conviction against former President Donald J. Trump for trying to subvert the results of the 2020 election, Jack Smith, the special counsel, is applying laws in ways that have never been used before.Charlie Savage, a Washington correspondent for The Times, explains Mr. Smith’s approach and previews Mr. Trump’s likely response.Guest: Charlie Savage, a Washington correspondent for The New York Times.Background reading: By layering varied charges atop the same facts, while sidestepping a free-speech question, the special counsel has structured the election indictment to reduce risk.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, to win a conviction against Donald Trump for trying to subvert the 2020 election, special counsel Jack Smith is applying laws in ways they've never been used before. Jack Smith is applying laws in ways they've never been used before. My colleague, Charlie Savage, has been studying last week's indictment to better understand Smith's legal strategy and the ways that Trump may try to counter it. It's Tuesday, August 8th.

Charlie, welcome back. We like to turn to you as the Times' in-house legal mind after indictments because you make sense of them. Well, thank you. It's lovely to be back. I want to start by talking about the legal strategy behind this latest indictment of former President Trump and its strengths and its weaknesses. And when this indictment came out last week, the first thing we all noticed about it was how it was structured. Just to remind listeners, it does not, this indictment, lay out a bunch of charges and then evidence that would back up those charges. Instead, it just tells one big, long story about what Trump did in his efforts, allegedly, to overturn the

2020 election and says, trust us, this grand story means he committed all these alleged crimes. So I want to start there. What that structure tells us about the legal strategy behind this indictment. So I do think that we can infer some insights into what strategy Jack Smith is developing here from the structure of this indictment. You're right that it is not the standard indictment where you have a few discrete actions and then that's attached to one charge. And then there's some different actions and that's attached to a different charge. It is a long narrative about all the myriad ways that Trump and his accused co-conspirators tried to engineer a way for him to stay in power despite losing the 2020 election. And it says that entire narrative, the fraudulent electors in the different states pressuring the Justice

Department to say there was fraud when they weren't seeing it, pressuring Mike Pence to disrupt the counting of Biden's electoral votes on January 6th and so forth. All of that adds up to three different criminal statutes from which they have four counts. And the same set of facts are being looked at from each of these criminal perspectives. It's like the entire narrative can be charged this way, can be charged that way, is chargeable this other way. And so they're putting everything into these different pots rather than breaking it up into discrete segments.

Got it. And just remind us how this grand narrative, this one big story in the eyes of Jack Smith, the special counsel, merits the charges that are included in it. So the three statutes that are charged, conspiracy to defraud the government, conspiracy to obstruct an official proceeding, and then closely related actual obstruction and attempted obstruction, and then finally a conspiracy to disenfranchise voters, are all different ways of looking at the same story. They're independent criminal lenses to bring upon the same set of

actions. For example, recruiting slates of fraudulent electors to send to Washington and appear alongside the actual state-certified electors that Biden won from these swing states like Georgia, Arizona, and so forth. One way of looking at that is this was defrauding government. This was saying these are legitimate electors, even though they had not been chosen through the official procedures, they had not been certified by the governors, but they were showing up and purporting to be something they were not. And the fact that they were showing up and the idea was that Pence would either count them instead or use their presence as an excuse to stop the proceedings and the stuff back to the states was going to obstruct, disrupt, impair Congress from getting through

its joint session to count the electoral votes. So it's obstruction of an official proceeding conspiracy. And the fact that people in those states had voted for Biden and had sent legitimate electors certified by those governors to go vote for Biden and cast their electoral college votes in that direction was going to be impaired by the fact that these other people were showing up and their actual legitimate chosen representatives in the electoral college were not going to be able to complete the election by casting their votes for Biden. So it is a conspiracy to disenfranchise the voters who had participated in that election. The same thing

is criminal in Jack Smith's argument here, three or four different ways. And he's bringing them all in parallel. So what exactly should we infer about the special counsel's overarching legal strategy based on this decision, quite deliberate, of using the same story to undergird each of these charges? There's a phrase that lawyers use sometimes called built and suspenders, which is there's different ways to keep your pants from falling down. You could put a belt on,

you could put suspenders on. Maybe you put them both on. And then if one fails, the other is still there. And that's, I think, inferable as one of the strategic choices that Jack Smith has made here. This is an unprecedented situation. We have never had

a conspiracy to disrupt the electoral college so that someone who lost a presidential election gets to stay in power anyway. Therefore, there is no precedent for bringing these statutes to this situation. We don't know how courts are going to interpret it. We don't know what jurors are going to do with it. We don't know if appeals courts at the Supreme Court may have second thoughts, if there's a verdict that's under review. And there's complexities raised by all of them. And so by bringing the same set of facts in four different ways under three different criminal statutes, Jack Smith is creating redundant layers as a safety net. He's got suspenders.

He's got a belt. He's even got some duct tape holding those pants up so that if something collapses at some point down the process, the risk that the whole thing collapses goes down. In a way, it sounds like you're saying, Charlie, that the special counsel anticipates, based on the novelty of this case, that one of these charges, maybe even two of these charges, might not survive, maybe in the courtroom or on appeal. And he is going to make sure that there are options throughout each phase of this case so that something is left at the end to, he hopes, charge and convict Donald Trump. I think that's right. I mean,

I don't think he would have brought any of these charges if he didn't think that most likely, in his head at least, a jury will convict and it will be sustained on appeal. But as a matter of legal and political reality, there's a chance that there's a holdout juror on one or two of them, there's a mistrial on those charges, or that an appeals court decides that this statute just wasn't written for this purpose and it's a stretch too far and they throw out a guilty verdict on this one or that one. The more lenses he's bringing to bear on this, the more likely that one of them is sustained through the end of the process and he wins a conviction that is the final result.

Charlie, if this is intended to be an all-encompassing legal strategy full of layers and belts and suspenders, I'm curious about what was left out of this indictment. Why Jack Smith chose not to charge Trump with some things we have heard about a lot since January 6th, one of them being incitement, the other being sedition related to what happened at the Capitol. And those were charges you might have expected to have been brought against Trump if they were brought against people who showed up at the Capitol that day. What's your understanding of why the special counsel didn't choose to use them in his belt andin suspenders approach. So you're absolutely right that the other striking thing about the structure of this indictment is what's missing from it. And what's missing from it is not just charges on incitement or

insurrection or seditious conspiracy, but actually large amounts of evidence about the violent events minute by minute that happened on January 6th itself. Stuff that is, you know, dozens and dozens of pages in the House January 6th Committee report is just not here, even though it's obviously available evidence. And the January 6th Committee had recommended charging Trump with inciting the violence and with a sedition, and yet Jack Smith didn't do so. So obviously, I don't know why Jack Smith for sure didn't do that. He's not talking to me. But I think we can infer that the reason is that is a sticky wicket for several reasons. The first of which is the First Amendment.

Trump gives this inflammatory speech, but at the same time, there's elements of it that are ambiguous. He's saying, you know, peacefully protest or something at one point, even though every other point seems like he's there to tell them to fight like hell or they're not going to have a country anymore, etc. Right. And when you're going to charge someone with inciting a riot or inciting an insurrection or something like that, inciting violence, unlawful violence, you have to meet a really high bar because of the First Amendment. The speech has to be directed to, or inciting, or producing imminent lawless action,

and likely to incite or produce such action. And Trump would have an awful lot to argue about, and his defense team would have an awful lot to argue about, if that was a focus of the trial. They could point to all the ambiguous components of his speech, where he'd never actually say, go riot. He said, go show them, you know? And on top of that, the government has already charged Oath Keepers and Proud Boys defendants with planning the violence ahead of time. And in some cases, already down at the Capitol and starting to raise havoc with the cops at the barricades as Trump was still giving his speech.

And so the defense could talk about that too. What do you mean he decided the riot? The violence was already happening. And the people who were the leaders of the violence had planned days ahead of time to do that. And you've charged that in court, haven't you? How can you say this speech that Trump gave caused that? Right. So that is a weaker area for Jack Smith to take his case into. Again, he hasn't told me what he's thinking, but from just talking to lots of criminal law experts on

the outside of what is going on here, he stayed away from the part that would have been relatively weaker and could have jeopardized his larger case. But all that said about belts and suspenders and so forth, it's clear that this is a novel case. This is an unusual situation with charges that have not been tested in this context before. And there are going to be ways that Trump and his defense team can attack it. We'll be right back. Charlie, let's talk through Donald Trump's potential avenues of defense against this indictment and the charges that it contains and evaluate their potential strengths and weaknesses. Sure. Well, one set of defenses that his lawyers have already made clear they are playing with and are likely to mount centers on the First Amendment. Trump had a right to say these things to the public. He had a right to

say these things to Pence. You can't criminalize free speech, political speech. Jack Smith seems to anticipate this defense. And in the indictment, he opens with a rebuttal to it. There's an unusual preamble in the indictment that reads like the opening statement a prosecutor would bring in trial. He says, look, Trump had every right to object to the election results. He had every right to file lawsuits challenging them. He had every right to say what he wanted about them. He even had a right to lie about them. But what he didn't have a right to do were these unlawful actions aimed at impeding, obstructing, disenfranchising, and so forth. And this is where things get complicated. First of all, in the realm of

the things coming out of Trump's mouth, I think we have to distinguish between his public speech and his private speech. Public speech being what is he saying on Twitter? What's he saying at rallies? That's one thing. Private speech being what is he saying to Republican officials? What's he saying to the Secretary of State in Georgia when he says, got to find me 12,000 votes?

What is he saying to the Attorney General of the Justice Department when he's saying, I want you to just say that you see fraud here, even if you don't. What's he saying to Vice President Pence when he's saying, I want you to not count these Biden electors or, you know, throw it back to the states. And you're too honest if you think you can't do that. And so you have a free speech in this country, but you don't have the right to solicit a crime. crime. So the private speech, Jack Smith is framing as something that's not protected by the First Amendment. He's soliciting crime. But where this gets extra complicated is Jack Smith spends a lot of time in this indictment talking about what Trump was saying publicly. He says at one point that it was integral to his criminal plans. He was creating the atmosphere of public suspicion in which this effort to engineer a reversal of the election was going to take place. He was creating tremendous pressure on these Republican officials by stoking anger at them among Republican voters. And so Jackson, it seems to me, is a little bit trying to have this both

ways in terms of the right to say these things publicly and whether that's what's being included in the criminal offense or not here. And I don't know what's going to happen as that plays out in pretrial or in the trial itself. Okay, I want to make sure I understand this. The speech emanating from Donald Trump that seems most legally problematic, the private speech, the time he calls up the Secretary of State of Georgia or Mike Pence and says, do something that might ultimately be illegal. In this indictment, that is mingled with the public speech emanating from Trump. You know, him telling the public that he won the election when he didn't, that feels more legally protected,

less legally problematic. You're saying Jack Smith contends that both of these forms of speech are in the service of a conspiracy. And in the end, that might create an opening for Trump to wage a potentially successful First Amendment defense. The fact that these are both in this indictment

and treated as legally problematic. I think that's right. You know, I guess if Jack Smith were on the podcast with us here, he would say, well, look, if Trump had only said these things publicly and hadn't privately tried to engineer fraud, disenfranchisement, obstruction, then we wouldn't be here. But he did, and they are relevant to the criminal action that is charged here. Right. He might say you can't really disentangle these two

forms of speech. I think he does. In fact, he says they were integral to his criminal plans. So that's potential defense number one, First Amendment. What's the next potential Trump defense? First Amendment. What's the next potential Trump defense? So the most difficult and most interesting defense centers around intent. Everyone agrees prosecutors are going to have to prove that Trump had the requisite criminal intent to be convicted of these crimes. What you're thinking, what your motive is, is a crucial element of whether you committed the crime. And this gets complicated. We have heard a lot of people say, for example, well, if Trump really believed that he had won the election, if he deluded himself into thinking the only way he could have possibly lost was through voter fraud, this was clearly a rigged election.

This was clearly a rigged election, and therefore, his efforts to fight the certification of Joe Biden's Electoral College victory, to overturn those results in those states that he had convinced himself he must have actually won, could not have been corrupt. It was undertaken with good intentions. He was trying to fix a problem, protect democracy, not destroy democracy. The kind of delusion defense. If he didn't believe he'd lost, then how could he possibly be guilty of having criminal intent? That's right. Is that a strong defense for Trump, potentially? Well, it turns out that we already know what happens when people in this context raise that defense. Because a number of January 6th rioters

who have already been prosecuted have gone to the judge and said, I lacked corrupt intent when you've accused me of obstructing that joint session of Congress because I genuinely believed Trump had won the election. And it has not worked. Judges have said, it doesn't matter whether in your own head

your motive was pure here because you committed other crimes to advance that goal. In their case, you committed trespassing, you assaulted cops, you vandalized government property. These things are illegal. You knew those were illegal.

And so the fact that you believed Trump won the election was irrelevant to that. So how does that apply to Trump? Trump obviously himself did not trespass on the Capitol, punch a cop, break a window. But according to Jack Smith's indictment here, he did commit simultaneously other crimes in route to obstructing that proceeding. He conspired to disenfranchise voters. He conspired to defraud the government. And so in that way, this indictment we've been talking about that has one story that's charged many different ways is also interwoven with itself. These other crimes are necessary for corrupt obstruction to be met, even if the jury, or at least one member of the jury, is not convinced that Trump knew he was lying about everything. So Trump's lawyers might spend a lot of time trying to

establish for the judge and the jury in this case that he really believed everything he was doing was right. He believed he lost. He believed he was a patriot clinging to power because he deserved to. But at the end of the day, a judge, a jury might treat him the same way it has the January 6th rioters and say, that doesn't matter. It's not relevant because you committed other crimes along the way. If Judge Chutkin, the judge assigned to this case, responds to that argument in the same way that judges in the District of Columbia have been responding in the Ryder cases, she would issue

an instruction to the jury that tells them, if you think Trump committed other crimes along the way, that is enough to show corrupt intent, regardless of what he personally believed. Got it. Is there anything else that Trump might argue in his defense against this indictment? Let me add just one more, a third. This is the advice of counsel defense. There are situations in which a person who is genuinely ignorant of the law

consults a lawyer. The lawyer says, oh, you can do X. And it turns out the lawyer is wrong. And the person will then say, you cannot accuse me of committing this crime because I didn't intentionally break the law. I was relying in good faith on the counsel's advice. Therefore, I didn't intend to do anything bad. I did not have bad intentions. I was trying to obey the law. Just listening to my lawyers.

Just listening to my lawyer, doing what the options were that that person told me. So here, Trump had a ton of lawyers who worked for the government in the White House telling him, this can't be done. This is crazy. This violates the Electoral Count Act. The vice president doesn't have the authority to unilaterally pick who won the presidential election. This is illegal. But he had a lawyer, John Eastman, who was telling him what he wanted to hear, which was, you can do this. Here's my theory. It works. Let's do it.

So can Trump point to John Eastman's advice and say, I'm not a lawyer. Here's a respected lawyer, at least used to be respected, now facing disbarment proceedings. How was I to know? Now there's going to be challenges here. One is there are limits on when you can successfully invoke the advice of counsel defense. The client has to have told the lawyer all the relevant facts. The theory has to be reasonable. And so in a situation when lots of other lawyers, serious government professional lawyers who are on your team, politically appointed lawyers, are saying this is not a reasonable theory, can you just march through until you find somebody who tells you what you want to hear? That would undermine the effectiveness of this defense, perhaps, in the minds of the jury.

I know this involves a little bit of guesswork on your part, but based on your reporting, do you anticipate that Trump will make multiple defense arguments so that he has his own set of belt and suspenders? If one of these defense arguments fails, he can rely on another. Absolutely. That is a common defense strategy. Throw everything against the wall and see what sticks. I think we can anticipate that everything we've been talking about here, the defense will throw at it, both in motions to dismiss before the trial and then at the trial, assuming there is a trial, and in appeals after the trial, if there's a guilty verdict. All these arguments will come back and be recycled again and again, and probably some others that we haven't thought of yet, just to see if something somewhere gets traction. You've now done this kind of legal analysis after each one of the indictments brought against Trump.

In the past few months, there are now three of them. the one involving hush money payments in New York, the classified documents case brought by Jack Smith in Florida, and this 2020 election case brought by Jack Smith in Washington. This case is talked about as by far the most important and consequential of those three indictments. And that makes me wonder if, based on your reporting, it is seen as the strongest case legally. So I think there's two ways of thinking about that.

And I'm especially thinking about this case, the election case legally. So I think there's two ways of thinking about that. And I'm especially thinking about this case, the election case, and the documents case, also a federal case brought by the special counsel. In terms of the law and the facts, it seems pretty clear that the documents case is stronger. It is simple. It is using a statute that has been used before, is tested, and there's just lots of evidence. There's cooperating witnesses, there's surveillance

video, there's boxes on photographs, there's text messages. So that's a very easy case to make to a jury. Whereas the election case, as we've discussed, is these statutes that weren't quite written with this situation in mind, never been tested against this situation because this situation has never arisen before, all kinds of complexities about intent and these defenses that we've talked about, which makes it relatively more complicated and a harder sell to a jury. On the other hand, there are factors outside of the four corners of these two indictments that cut the other way. The documents case was assigned to a judge who has a conservative background that Trump appointed and who in the past famously has ruled in his favor in ways that were later overturned because they were

so outlandish. And the jury pool in Florida will be drawn from people who live around Palm Beach County and Fort Pierce, relatively a lot of Republicans there who may be sympathetic to Trump and may be therefore more skeptical, looking for ways to have reasonable doubt or at least a hung jury. The election case was assigned to a Democratic-appointed judge, appointed by Obama with a liberal background, who has been one of the toughest sentencers against January 6th rioters, Tonya Tutkin, perhaps the worst judge that Trump could have drawn. Maybe the best judge he could have drawn in Florida and the worst judge in D.C. And D.C. is a place where there's lots of Democrats, relatively speaking, to South Florida, and therefore a jury pool that may be less inclined to be sympathetic to this particular defendant. And so that may make this case stronger. You have just laid out some real,

serious cross-currents. That's right. And that's how this gets complicated. Your question is, is this the strongest case? Jack Smith has clearly tried to make this as strong a case as he can. But in the end, it comes down to the facts, the law, the evidence, the defense, the judge, and the jury. Charlie, once again, thank you very much. My pleasure.

We'll be right back. Here's what else you need to know today. On Monday, one of America's largest trucking companies, Yellow, filed for bankruptcy, a decision that will lead to the loss of about 30,000 jobs and create potentially serious disruptions to the country's supply chain. Yellow, a 99-year-old company, is involved in about 50,000 shipments a day and recorded revenue of more than $5 billion last year.

But it took on enormous debt from a series of mergers, became embroiled in a prolonged labor dispute with its unionized workers, and during the pandemic, needed a $700 million loan from the U.S. government to stay afloat. It's now unclear whether that loan will ever be repaid. Today's episode was produced by Mujzadi,

Olivia Nat, and Michael Simon-Johnson, with help from Rochelle Banja. It was edited by Lisa Chow and Rachel Quester, contains original music by Sophia Landman, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.