Dershowitz: Trump defense must avoid 'trap' of debating election fraud during Senate trial

"It's a trap to have them talk about electoral fraud, because if they do, they'll lose McConnell and other senators," said Alan Dershowitz, a member of Trump's 2020 impeachment defense team.

Published: February 10, 2021 7:54pm

Updated: February 11, 2021 1:14pm

Key legal allies of former President Trump say his defense team must avoid the "trap" of debating election fraud during his Senate impeachment trial.

House impeachment managers Tuesday cited Trump statements challenging the integrity of the 2020 election in arguing that the former president engaged in a "months-long effort to incite" an "insurrection" which culminated on Jan. 6, when a pro-Trump mob forced its way past police lines into the U.S. Capitol.

House Democrats' move to frame Trump's electoral fraud claims as incitement in their impeachment narrative created an opening for Trump's defense to, in effect, put the 2020 election itself on trial before a nationwide viewing audience, as many of his supporters have urged.

Some Trump allies say his electoral fraud case has never received a full public airing due to legal challenges being tossed out on grounds of standing, timeliness and other technical issues rather than on merit.

But former Harvard law professor Alan Dershowitz, who helped lead the successful defense that gained Trump's acquittal in the 2020 impeachment trial, said this move would be "a terrible mistake" for Trump.

"It's a trap that the Democrats are trying to set for the Trump lawyers," Dershowitz told Just the News in an interview Wednesday. "It's a trap to have them talk about electoral fraud, because if they do, they'll lose [Senate Minority Leader Mitch] McConnell and other senators." 

The "absolute trap," Dershowitz said, "was being set by Rep. Jamie Raskin (D-Md.), who is leading the Democrats' impeachment case. Raskin studied law under Dershowitz, who called his former student "a smart guy."

Multiple news outlets reported that five of Trump's defense attorneys departed the case with little more than a week until the trial was set to begin because of differences with the former president over strategy. Reportedly, attorneys Johnny Gasser, Greg Harris, Butch Bowers, Deborah Barbier and Josh Howard opted out because Trump preferred that his legal team make the case that the election was stolen through massive fraud instead of focusing on the constitutionality of a Senate trial of a private citizen. 

Attorney Phill Kline, a Trump supporter and director of the Amistad Project of the Thomas More Society, has litigated many cases involving claims of electoral fraud during the 2020 election. He told Just the News that while he thinks a national conversation about electoral fraud should continue, he doesn't believe that the impeachment forum is ideal. 

"This is not the forum in which any evidence of election fraud is going to be seriously considered," Kline said. "They have no interest in it. They refuse to acknowledge clear facts. And so it's the wrong audience and the wrong time."

Kline said the Trump defense team should focus on the former president's First Amendment right to speak openly and raise questions about election fraud.

"They have been trying to criminalize thought for some time now," Kline said. "This is just the fruit of their belief that if you do not think as they do, you're a threat to the nation."

Previously, Kevin Brock, former assistant director of intelligence for the FBI told Just the News that Trump has not been prosecuted by the FBI for incitement because his words on Jan. 6 did not meet that legal definition. For speech to meet the threshold of incitement, a speaker must, first, indicate a desire for violence and, second, demonstrate a capability or reasonable indication of capability to carry out the violence, according to Brock.

In an interview last month, Brock told Just the News he listened to Trump's entire Jan. 6 speech. "I didn't hear a single word about — or anything that would trigger a reasonable person to believe that he was inciting — violence," he said. "He even used the words 'peaceful' and 'respectful.'"

Former Trump 2020 campaign adviser Jason Miller told Fox News on Wednesday that Trump is in "a great mood” after the first day of the impeachment trial. 

Miller was asked about press reports that Trump was unhappy with his legal team's presentation. "The President thinks David Schoen did a very excellent job," Miller said. "Also, there were good points Bruce Castor made. There are a few things we need to tighten up."

Miller noted that in their presentation, Democrats didn't use the entire Jan. 6 speech by Trump.

"Everything is selective," Miller said. "They haven't played the clips of President Trump saying, 'Be peaceful, patriotic.'"

Asked about the Trump legal team, Stacy Washington, co-chair of the 2020 Black Voices For Trump committee, said, "It's difficult to get good help when your personal life is threatened and your family is threatened."

Any prospective Trump lawyer faced the the threat of professional blackballing, "where they're literally told, 'You take cases with the president, you'll never work again,'" Washington said. "So the president has the best legal team that he was able to get under the circumstances. And I think they did pretty well."

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