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Trump’s legal team clings to ‘freedom of expression’ defense in election fraud case

The former president’s lawyer claims he was ‘asking’ not ‘directing’ when he called on his allies to alter the results of the 2020 vote, which he lost to Biden

Donald Trump USA
Former U.S. president Donald Trump at a rally in Columbia, South Carolina, on SaturdaySAM WOLFE (REUTERS)
Macarena Vidal Liy

The right to freedom of expression is set to play a key role in Donald Trump’s defense against charges over his efforts to overturn the results of the 2020 presidential election. His lawyers have made it clear that they will argue that when the former president made false allegations of election fraud, he truly believed the allegations and was exercising his right to freedom of expression. They claim that when Trump called on his allies and electoral officials to alter the results, he was not pressuring them, but rather expressing an “aspirational ask.”

John Lauro, one of Trump’s lawyers and his lead defender in the case, was a very busy man this Sunday: he appeared on talk shows on all the national television networks to put forward that argument.

“Every single thing that president Trump is being prosecuted for involved aspirational asks — asking state legislators, asking state governors, asking state electoral officials to do the right thing. In fact, even asking Vice President Pence was protected by free speech,” Lauro told the conservative Fox News network.

Following his loss, Trump called on Georgia Secretary of State Brad Raffensperger to “find” 11,780 votes — one more than the number by which his Democratic opponent, Joe Biden, had defeated him in the state. He also demanded that Pence refuse to certify the official result of the elections in the U.S. Congress on January 6, 2021. The vice president did not agree. That day, a horde of Trump supporters — convinced by Trump’s false claims of voter fraud — stormed the Capitol chanting “Hang Mike Pence!”

Last week, Trump was held formally accountable for these actions. In the indictment, Trump is accused of four felony counts: conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding.

According to Lauro, Trump “had a right to petition governments around the country, state governments, based on his grievances that election irregularities had occurred.” “In order to have a violation of the law, you have to have criminal intent,” he told NBC’s Meet the Press on Sunday. In a separate interview on CNN, Lauro said that “asking” is not the same as “directing.” While on CBS, he stressed that Trump “believed in 2020 that he won based on the fact that he had 10 million more votes than in 2016.”

But when Pence was asked about these claims, he told CBS: “That’s not what happened.” The former vice president, whose testimony is key in the prosecution’s indictment, recounted that Trump asked him to overturn the election results on Christmas Day in 2020. A week later, on January 1, 2021, a similar conversation took place. As Pence has stated on several occasions, the former president demanded that he choose between himself and the Constitution, and Pence opted for the law.

Since Special Counsel Jack Smith filed the indictment against Trump, the ex-president’s defense has hinted that, in addition to pushing the first amendment, he will also try to delay the start of the three trials he is facing. In addition to the indictment over his efforts to overturn the 2020 election, Trump is also accused of falsifying business records in New York and for illegally withholding confidential papers in his Florida estate Mar-a-Lago. His legal team hopes to push back the trials until after the 2024 election, with the hope that Trump — the frontrunner for the Republican 2024 presidential nomination — will be back in the White House by the time they go to court.

Motion to change judge and court

Trump has already stated that he will push to have the election fraud case moved to a new court and for the recusal of the judge. “There is no way I can get a fair trial with the judge ‘assigned,’” he posted in all capital letters on his social media channel Truth Social.

The case has been assigned to federal court in Washington, and will be presided over by Judge Tanya Chutkan, who has imposed some of the harshest sentences on the protesters who stormed the U.S. Capitol. Chutkan also previously clashed with the former president in another case, when Trump tried to stop the House committee investigating the January 6 assault from accessing Trump’s White House files. In her ruling, she wrote: “Presidents are not kings.”

On Saturday, Chutkan gave Trump’s defense until Monday afternoon to respond to the prosecution’s request for a protective order aimed at protecting witnesses. The request for a protective order was made after Trump posted: “If you go after me, I’m coming after you.”

The former president is also worried about his chances in a trial in Washington, where he won just over 5% of the presidential election vote in the district in 2020. When the indictment was filed, there were far more protesters demanding Trump be sent to prison than those supporting him outside the District of Columbia courthouse.

Following the indictment, Trump said that he would request the case be transferred to West Virginia, a conservative-leaning state near Washington, where he defeated Biden with two-thirds of the votes in 2020.

“No way I can get a fair trial, or even close to a fair trial, in Washington, D.C. There are many reasons for this, but just one is that I am calling for a federal takeover of this filthy and crime ridden embarrassment to our nation,” Trump said in a Truth Social post.

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