Potential Trump defenses take shape after second federal indictment

Special Counsel Jack Smith's second indictment of former President Donald Trump on Tuesday pertained to the events of Jan. 6, 2021, and the ex-commander-in-chief's claims that election fraud influenced the outcome of the 2020 presidential election.

Now, with the exact nature of the charges revealed, Trump’s potential legal defense also appears to be coming into clearer view. 

The four-count indictment charges Trump with conspiracy to defraud, conspiracy to obstruct an official proceeding, obstruction of, and attempt to obstruct an official proceeding, and conspiracy against rights.

It further accuses Trump of spreading lies that "there had been outcome-determinative fraud in the election and that he had actually won."

While the indictment acknowledges his right to make such claims, it also describes a vast conspiracy by which Trump pursued unlawful means of "discounting legitimate votes and subverting the election results."

Here are some of the potential arguments Trump may make in his defense.

Free Speech and the First Amendment

Despite acknowledging Trump's right to challenge the election results and to make allegedly false claims of election fraud, the indictment makes clear that such claims and statements advancing them were the vehicle by which Trump and his co-conspirators allegedly sought to advance the criminal conspiracies for which they directly face charges.

George Washington University Law professor Jonathan Turley on Fox News on Tuesday night characterized the charges as a "disinformation indictment."

"There's less than meets the eye in this indictment," he said. "I thought the last indictment was a very serious threat for Donald Trump. When I take a red pen through material that is protected by the First Amendment, it reduces much of this to a haiku. Many of the things that the prosecutor is charging here [are] protected speech."

He also said "the most jarring thing about this indictment is that it basically just accuses him of disinformation."

"This is a disinformation indictment," Turley continued. "It says that you were spreading falsehoods, that you were undermining the integrity of the election. That's all part of the First Amendment. And I think that courts will look skeptically. He might have a fair shot with a D.C. jury and maybe a D.C. judge. He's going to have a harder time with the courts."

Presidential immunity

On the same day the indictment dropped, Trump notched a legal win in Pennsylvania when Philadelphia County Court of Common Pleas Judge Michael Erdos determined that certain comments Trump made while in office that cast doubt on the election results fell under the scope of his presidential immunity.

Election worker James Savage had alleged Trump and some of his allies conspired to defame him by falsely claiming he altered the election results.

Erdos determined that Savage could not sue Trump for comments made while in office but permitted him to address comments Trump made after leaving the White House.

"Other legal proceedings may examine the propriety of his statements and actions while he was the president and whether, as the plaintiffs in this and other cases contend, it was this conduct which served as the actual threat to our democracy, Erdos wrote. "But this case is not the proper place to do so. Here, Trump is entitled to presidential immunity."

Should that ruling hold, it could significantly undercut Smith's case, in particular the counts related to an "official proceeding," which reference the certification of the electoral vote on Jan. 6, 2021, while Trump was still president.

Difference of legal opinion

One of the key elements of Smith's indictments is Trump's effort to convince then-Vice President Mike Pence to halt Congress' electoral certification process and kick the disputed contests back to the state legislatures.

Pence repeatedly insisted that he had no such authority, as did legal scholars and officials.

Turley, however, pointed out the matter was the subject of some debate at the time. 

"The indictment goes through and says: 'Look, all these people told him that he lost the election. All of these people said that Pence couldn't do that,'" he said. "I was one of the people writing at the time saying I thought that the president was wrong about Vice President Pence. But he was also hearing form attorneys that said that we can win, that Pence can do this. And so you're going to be criminalizing a difference of opinion."

Still, he acknowledged: "Most attorneys did not support that view."

Such a line of defense could potentially address the conspiracy-to-defraud-the-country charge – in that Trump's defense might feasibly claim his advisers sought to pursue what they believed to be a legal remedy for their grievances over the contest.

Trump believed his own claims

The byword for Smith's second indictment of Trump appears to be "knowingly."

All of Smith's claims rest on the idea that Trump was aware he had lost the election and plotted to claim a second term anyway.

Trump has consistently claimed to have been the legitimate victor of the 2020 presidential contest.

National Review editor Rich Lowry highlighted the consistency of the former president and his apparent genuine belief in his own statements.

"Good luck proving that Trump knew he lost the election, when he – whether behind closed doors or in public, whether with one person or massive crowds – has consistently maintained that he won with an apparent passionate sincerity," he opined.

The claims weren't entirely baseless

While it appears unlikely that Trump or his legal team will attempt to argue that the election was swayed by election fraud, they may be able to point to subsequent cases involving the election as evidence that some of the fraud or election vulnerabilities they addressed did exist.

In asserting that Trump knew his claims of "outcome-determinative" fraud were false, Smith cites examples of Trump allies and officials telling him that such fraud did not exist.

One example, in particular, however, was undercut by subsequent charges from Justice Department.

Smith referenced statements from the the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency asserting that the election had been secure.

"The Department of Homeland Security's Cybersecurity and Infrastructure  Security Agency ('CISA') –whose existence the defendant signed into law to protect the nation's cybersecurity infrastructure from attack – joined an official multi-agency statement that there was no evidence any voting  system had been compromised and that declared the 2020 election 'the most  secure in American history,'" the indictment reads.

"Days later, after the CISA director –whom the defendant had appointed – announced publicly that election security experts were in agreement that claims of computer-based election fraud were unsubstantiated, the defendant fired him."

However, in November 2021 the Justice Department brought charges against two Iranians – Seyyed Mohammad Hosein Musa Kazemi and Sajjad Kashian – alleging they successfully hacked into a state computer election system, stole voter data, and used it to intimidate Republican lawmakers.

The charges materialized roughly one year after the election, and it remains unclear whether Trump knew of that instance at the time.

Ben Whedon is an editor and reporter for Just the News. Follow him on Twitter.