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Trump Prosecutors Try To Preempt His First Amendment Defense

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Former president Trump is expected to appear in-person Thursday for his arraignment in federal court in Washington, D.C., on charges that he conspired to subvert the results of the 2020 presidential election, reports the Washington Post.


A grand jury indicted Trump on four counts, including conspiracy to defraud the nation. Describing the Jan. 6, 2021, riot at the U.S. Capitol as an “unprecedented assault on the seat of American democracy,” special counsel Jack Smith said the attack was “fueled by lies” from Trump.


John Lauro, a lawyer for Trump, said Wednesday that the former president’s legal team would “absolutely” seek to move his trial out of Washington, D.C., and suggested Republican-leaning West Virginia as an alternative. “There’s other options” besides heavily Democratic Washington, Lauro said on “CBS Mornings.” “I mean, there’s certainly West Virginia, which is close by. There’s other areas of the country.”


The indictment, the third Trump currently faces with another in Georgia likely to follow, compounds his legal challenges as he runs for the 2024 Republican presidential nomination.

The indictment charges Trump with conspiracy to defraud the U.S.; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. The conspiracy charges mean that prosecutors allege that Trump committed them alongside other people. Prosecutors allege that each conspiracy “targeted a bedrock function of the United States government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”


The statutes charged by prosecutors require criminal intent, said Temidayo Aganga-Williams, who was senior investigative counsel for the House committee that investigated the Jan. 6 attack. "Trump may argue that when he made claims about the election, and otherwise sought to overturn the results, that he was acting in good faith."

Still, he said, Trump likely faces an uphill battle. “The indictment demonstrates that the special counsel has evidence that individuals from the White House to the Trump re-election campaign to the Department of Justice and state officials all told President Trump that his efforts to overturn the election were misguided and illegal,” he added. Prosecutors said Trump had a right like other U.S. citizens to speak publicly about the election, even to claim that there had been voter fraud. However Trump violated the law when he used lies to destabilize the electoral process, prosecutors said.

Barry Berke, a criminal-defense lawyer, said by taking the step of acknowledging the right to contest an election, prosecutors were pre-empting First Amendment arguments Trump may make in his defense.

“This unusual tactic very effectively sets the table to explain all the reasons it is a crime to do what was done here, which was to engage in fraud and deceit to interfere with the lawful results and certification of a presidential election,” said Berke, the chief impeachment counsel for the House of Representatives in the second impeachment of Trump. Trump’s campaign sent an email referring to the indictment as an attempt to interfere in the 2024 election. “As you know, I did nothing wrong,” the email said. “It’s well-documented that I told Americans to act ‘PEACEFULLY’ and discouraged the use of any violence.”

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