September 30, 2023


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Trump Could Use These 3 Legal Defenses If He Faces Criminal Charges

5 min read


  • The Jan. 6 committee is revealing new evidence on Trump’s attempts to overturn the 2020 election.
  • Trump, meanwhile, is facing other legal challenges.
  • Experts say Trump has a few different options based on what he’s charged with.

The House select committee investigating the January 6 insurrection is using its final public hearings to showcase more evidence against former President Donald Trump and his attempt to overturn the 2020 presidential election.

During Tuesday’s hearing, Rep. Liz Cheney revealed that Trump tried to call a January 6 witness, which could constitute the crime of witness tampering.

But that’s not the only thing Trump has to worry about.

The Justice Department, Fulton County District Attorney Fani Willis, and New York Attorney General Letitia James are also conducting their own investigations into Trump and his business practices. 

The January 6 hearings and other investigations into Trump could put him in greater legal peril. 

Insider previously reported that Trump could have possibly also violated five federal laws based on the evidence presented by the House select committee. These laws include conspiracy to defraud the government, witness tampering, wire fraud, inciting a rebellion, and obstructing an official proceeding.

Five legal experts told Insider that Trump could use several legal defense strategies if formal charges are made against him.

Trump’s team did not respond to Insider’s request for comment.


Throughout the January 6 hearings, the public heard testimonies from several former Justice Department officials who said that they informed Trump on multiple occasions that there was no evidence of election fraud. But despite their conversations, the former president continued to say the election was stolen and pushed election officials to find proof that there was election fraud.

Former Attorney General William Barr even said that at one point, Trump had become “detached from reality.”

Trump could plead to insanity to avoid being prosecuted, some legal experts say. But others disagree. 

“I don’t think it’s very likely — assuming an indictment and a trial — that Donald Trump would defend himself as insane or mentally deranged and thus not criminally culpable,” said John Q. Barrett, a former associate independent counsel in the Iran-contra investigation.”I think Trump would largely defend himself the way he has conducted himself. He would say ‘I won. It was a steal.'” 

To push back on Trump’s possible legal defense, federal prosecutors could present evidence that he was sane and clear-minded while attempting to overturn the election results.

Prosecutors could also point to other rhetoric Trump used before the presidential election, where he suggested that the election could be rigged. This would aid them in showcasing a pattern in Trump’s behavior. 

Rudy Giuliani and Donald Trump

Former New York Mayor Rudy Giuliani looks on as then-President Donald Trump speaks.

Joshua Roberts/Getty Images

Blaming others

Legal experts say Trump could also go another route and blame others for his continued effort to overturn the 2020 presidential election.

He consulted several legal advisers like John Eastman, Rudy Giuliani, and Kenneth Chesebro on efforts to cast doubt on the election result. The Fulton County special grand jury recently issued them subpoenas as part of Willis’s investigation into Georgia’s 2020 elections. 

Renato Mariotti, a former federal prosecutor, previously told Insider that if Trump was charged for obstructing an official proceeding, he could claim that he was following Eastman’s guidance, who, as his legal adviser, repeatedly pushed then-Vice President Mike Pence to reject electors from some states Trump had lost.

“It’s hard to convince a jury that somebody who was following a lawyer’s advice was acting corruptly,” Mariotti said. 

Cheney, who is the vice chair of the January 6 committee, has already hinted at this possibly legal defense.

“The strategy is to blame people his advisers called, quote, the crazies, for what Donald Trump did,” she said during Tuesday’s public hearing. “This, of course, is nonsense.”

Trump’s closest allies like Giuliani and Roger Stone, a conservative political consultant, also pushed conspiracy theories about election fraud.

His legal defense attorneys could point to evidence the January 6 committee provided on Tuesday about a meeting Trump had with Giuliani, his former national security adviser Michael Flynn, and his campaign attorney Sidney Powell. During the hours-long meeting held in December 2020, Trump’s advisers suggested that he order the Department of Defense to seize voting machines so he could stay in office.

But prosecutors could point to new evidence provided by the January 6 committee as proof of Trump’s direct involvement in overturning the 2020 presidential election. Cheney said during Tuesday’s public hearing  that Trump attempted to contact a January 6 witness — an offense that could potentially be seen as illegally tampering with a witness.

“After our last hearing, President Trump tried to call a witness in our investigation — a witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump’s call and, instead, alerted their lawyer to the call,” she said.

Trump believed his claims

Trump’s legal defense team could argue that he genuinely believed that the election was rigged and did not have an intent to commit a crime.

“If he actually thought he won and he was trying to get people to promote his victory, one could argue that he didn’t have the intent to have people commit a crime. He had the intent to have people get to the truth,” said Peter Odom, a former Fulton County prosecutor who has worked on election fraud cases.

Federal prosecutors could push back on this approach and use the testimonies of several White House legal advisers and Justice Department officials who told Trump they found no evidence to support the notion that the election was rigged. 

Prosecutors would have to present enough evidence to show that “it’s completely unreasonable” for someone to believe there was election fraud if they were told by all their lawyers and campaign officials that there was none, Barrett added. 

Brad Raffensperger, Georgia Secretary of State, testifies as Gabe Sterling, Georgia Deputy Secretary of State, listens,

Brad Raffensperger, Georgia Secretary of State, testifies as Gabe Sterling, Georgia Deputy Secretary of State, listens.

AP Photo/Jacquelyn Martin

One of the main things prosecutors could bring up if they charge Trump with election fraud or obstructing an official proceeding is the January 2, 2021, call he made to Georgia Secretary of State Brad Raffensperger. At that time, Trump pressured Raffensperger to “find” more votes to overturn the state’s election results. 

Trump’s team, however, could argue that his statements during the call with Raffensperger did not show “a real criminal intent” or “were ambiguous,” said Nick Akerman, a former Watergate prosecutor.

But, Akerman argued, prosecutors could also bring in other evidence to show that Trump’s actions were part of a larger pattern he used to pressure Republican state officials. For instance, there is a December 23, 2020 call Trump made to Frances Watson, who served as a chief investigator for the Georgia secretary of state, during which he urged her to find election fraud.

Robert Ray, a former prosecutor who defended Trump in his first Senate impeachment trial, said Trump’s comments during these phone calls showed him suggesting that Georgia officials should look into allegations of election fraud — not for them to commit a felony. 

“It may be reprehensible behavior. It may be a whole lot of things, but one thing it’s not is criminal,” he told Insider.


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