How Trump Plans to Fight His Federal Election-Interference Case
Citing ‘an enormity of unique legal issues,’ former president’s legal team promises onslaught of motions that could push trial start date
WSJ
John Lauro, Donald Trump’s lawyer, is pressing the judge for more time. PHOTO: JOSE LUIS MAGANA/ASSOCIATED PRESS
WASHINGTON—With less than six months to prepare for his federal election-interference trial, Donald Trump’s lawyers are turning to a familiar strategy for the former president: long-shot legal motions that publicly criticize the case and raise novel questions that could serve to delay it.
In a heated hearing last week, Trump lawyer John Lauro said he couldn’t build a full-throated defense for his client in the months remaining before the March 2024 start date and pressed the judge for more time.
Short of that, Trump’s team has promised—but not yet filed—a flurry of requests that legal experts say probably won’t derail the criminal trial in Washington but could delay it by raising complicated legal issues that might take time to sort out.
“I’m afraid, Your Honor, we’re going to be back many, many times arguing some of these complex motions,” Lauro told U.S. District Judge Tanya Chutkan.
“I can’t wait,” she said.
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Lauro said they would abide by Chutkan’s trial schedule “as we must,” but he vowed to challenge each of the four counts in special counsel Jack Smith’s indictment, which accuses the former president of conspiring to cling to power after his 2020 election loss through actions that culminated in the Jan. 6, 2021, attack on the U.S. Capitol.
“There’s going to be an enormity of unique legal issues,” Lauro said, indicating the defense team would be offering a panoply of arguments, including that the case violates Trump’s First Amendment rights and that prosecutors inappropriately wielded conspiracy charges against a political opponent.
It is commonplace for defendants in hard-fought trials to attack criminal charges through a flurry of motions. Even if many are unlikely to be successful before trial, they serve in part to put objections on record for future appeals.
Here’s a look at the main avenues Trump is set to pursue before he goes on trial.
A president’s executive immunity
In what Lauro said would be one of his first filings, Trump’s team will argue that he is immune from prosecution because the allegations involve actions he took when he was president—and therefore the case should be dismissed before it goes to a jury.
Trump, they are expected to say, was fulfilling his obligation to ensure laws are faithfully executed when he sought ways to confirm whether the vote was marred by fraud. Lauro said the legal team would ask Chutkan to pause the criminal proceedings until this issue is fully resolved.
Most appeals in criminal cases can only be sought after a defendant is convicted. Courts might view a first-of-its-kind case like Trump’s with greater urgency, especially with regard to executive immunity, said Victoria Nourse, a professor at Georgetown Law who served as Joe Biden’s chief counsel when the current president was vice president during the Obama administration.
“It’s not frivolous,” she said. “Since no one has ever decided this in the context of the president, I think a lot of judges would say, ‘I really have to take a look at this.’”
A previous civil case raising a similar question suggests Trump might not be successful with such a claim. Last year, another federal judge in the same Washington courthouse found that Trump could face lawsuits over some of his actions after the 2020 election, and not everything he did while president was covered by presidential immunity. That ruling, which suggested that presidents can be found liable for some speech outside of the context of their official duties, is now on appeal with the U.S. Court of Appeals for the D.C. Circuit.
A selective prosecution motivated by politics
At the Aug. 28 hearing, Lauro also said he plans to argue that Trump is being selectively prosecuted, “given the fact that this prosecution provides an advantage to these prosecutors’ boss, who is running a political campaign against President Trump.”
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Courts have set a very high bar for defendants to argue they were selectively prosecuted, requiring them to show that others similarly situated aren’t being prosecuted and that any discrimination is intentional.
Such comparisons will be hard to draw, making it unlikely Trump could plausibly persuade a judge to dismiss the case on those grounds, said Evan T. Barr, a former prosecutor now with the law firm Reed Smith.
But there are other reasons to pursue such a defense, Barr said. It could convince the judge that Trump’s lawyers should be entitled to more information from the government’s files. And it could frame for the public—in the midst of Trump’s political campaign for the 2024 election—why they believe the case is unfair.
“This is more for external consumption,” Barr said. “It’s mostly about fundraising and part of his political campaign.”
Other attorneys said filing such motions is a routine part of any good criminal defense.
“Defense lawyers in any case have an absolute obligation to understand the facts and explore all viable legal challenges,” said Andrew Wise, a lawyer at the firm Miller & Chevalier.
A biased jury pool
Soon after the case was filed, Trump also said he would seek to move the trial out of Washington, because the district’s population is overwhelmingly composed of people who didn’t vote for him.
The case “will hopefully be moved to an impartial Venue, such as the politically unbiased nearby State of West Virginia!” Trump said on social media soon after the indictment.
Biden, a Democrat, won 92% of votes within the U.S. capital in the 2020 election, while Trump, a Republican, won 68% of the popular vote in West Virginia that year.
Again, precedent appears to not favor Trump’s argument. More than a dozen of the around 1,100 people arrested for their actions during the Jan. 6, 2021, riot at the U.S. Capitol have tried to get their cases moved by saying a Washington jury would be inherently biased against them. Federal judges in D.C. have rejected all such requests to date.
Indeed, those judges have often expressed veiled annoyance at what they described as caricatures of the D.C. population.
“All we need is 12 people. And we have over 600,000 people to choose from,” said U.S. District Judge Timothy Kelly, who was appointed to the bench by Trump, in rejecting a change-of-venue request for the trial of leaders of the far-right Proud Boys group. On Tuesday, Kelly sentenced the former chairman of the group, Enrique Tarrio, to 22 years in prison, the longest sentence yet in connection with the attack.
Trump could take a slightly different tack, Barr said. One key premise of his defense is that he believed he had actually won the 2020 election, and his lawyers could argue that a jury drawn from a heavily Democratic pool wouldn’t be able to keep an open mind about that idea.
But even that route is likely to meet resistance, Barr said. Chutkan has suggested she would keep Trump’s case in Washington, which she described as “the site of the events at issue.”
However the judge rules on any individual motion brought by Trump’s team, she will likely face a blizzard of paperwork in the coming months.
“They’re going to throw in the kitchen sink,” said Nourse, the Georgetown professor. “They are going to try to bury [the judge] and bury the other side. And then when they lose, they will try to appeal it, and then appeal it again.”
