Editor’s Note: Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Modern Trial Advocacy” and has written many other books and articles on legal ethics and law practice. The views expressed in this commentary are his own. View more opinion at CNN.
The best defense former President Donald Trump has against his indictment in Washington for multiple conspiracies to defraud the United States as part of the events of January 6, 2021, hinges on his purportedly sincere belief that he actually won the 2020 election.
According to the prosecution, Trump and his co-conspirators attempted to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”
The indictment uses the phrase “knowingly false” another 32 times, underscoring the allegation that Trump’s various machinations were all part of a scheme to remain in power through intentional trickery and deceit.
Trump defense lawyer John Lauro, however, told NBC News, among others, that Trump, who has denied any wrongdoing, “believed in his heart of hearts that he had won that election.”
We already have a good idea of how the prosecution intends to prove its case at trial. The indictment lists over 100 allegedly false claims and statements by Trump, with times, places and witnesses. And there is no doubt more where that came from. The tougher question is how Trump will respond to such an overwhelming case. Because criminal defendants are not required to produce any evidence at all, with the burden of proof on the prosecution, Trump could, in theory, simply stand mute and rely on his attorney to argue that the prosecution failed to prove that his statements were “knowingly” false.
Given that, Trump’s lawyers may well advise him to stay off the witness stand and avoid the risks of cross examination — but demure silence is hardly in his nature. Trump has already signaled that he intends to mount an aggressive defense, and he has seldom, if ever, passed up an opportunity to tell his story of persecution by the “deep state.”
Furthermore, Trump himself would be the logical witness to his own innocent beliefs. Testifying, however, would carry many risks for him. To start with, upon voluntarily taking the stand, Trump would waive the Fifth Amendment’s protection from responding to questions whose answers could be self-incriminating, thus exposing himself to cross examination on every aspect of the charged crimes. He could not refuse to answer questions, as he did over 400 times in a deposition taken in the New York attorney general’s civil suit concerning his business practices. (He has denied any wrongdoing in this case as well.)
The result would likely be devastating. At a minimum, Trump would be questioned about every false statement alleged in the indictment. If he denied making the claims, there would almost certainly be prosecution witnesses to contradict him.
If he maintained that his statements were all true, there will be a mountain of evidence to contradict that. And if he continued to insist that he believed everything he said — about “alternate” electors, finding 11,780 votes in Georgia and Mike Pence’s authority to reject electoral votes — his cascade of denials would soon become self-evidently implausible.
Despite his mastery of the debate stage, Trump has already proven to be a poor witness, as was seen in the video of his deposition in E. Jean Carroll’s sexual abuse defamation and battery suit. That examination by Carroll’s lawyer, conducted with open-ended questions to discover evidence and not as a part of a cross-examination on the witness stand, was actually relatively mild compared to the leading questions Trump can expect under the firm command of a seasoned federal prosecutor.
Moreover, having Trump on the stand would aid prosecutors in sketching out a clear narrative of events for jurors. Typically in trials, separate witnesses testify in piecemeal fashion about different events, resulting in a patchwork of evidence that the prosecutors can tie together only in their closing argument at the trial’s end. In Trump’s cross examination, however, the prosecutors would be able to confront him with his false statements one after another, seamlessly telling their entire story of Trump’s duplicity in his own words.
And in waiving the Fifth Amendment, Trump could potentially face a contempt citation if he persistently refuses to answer particular questions. That would likely lead to what is sometimes politely called an “adverse inference” by the jurors. Trump himself once drew such an inference, asking, “If you’re innocent, why are you taking the Fifth?”
It gets worse. Trump evidently also plans to raise the “advice of counsel” defense, relying on assurances from his lawyers that his tactics were all lawful and thus negating criminal intent. As Lauro told NPR, “He got advice from counsel — very, very wise and learned counsel — on a variety of constitutional and legal issues.”
Mounting an advice of counsel defense, for its part, means waiving attorney-client privilege. In other words, John Eastman, Rudy Giuliani and the entire “gaggle of crackpot lawyers,” as Mike Pence called those who advised Trump, could not claim confidentiality if subpoenaed by the prosecution to testify against their erstwhile client.
The lawyers, some of whom have been identified as unindicted co-conspirators, could assert the Fifth Amendment for themselves, but that would just undermine Trump’s defense. Moreover, the privilege waiver would also apply to any of the lawyers who confidentially told Trump he had lost the election, making them available to testify against him even over his objection.
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Trump’s lawyers could attempt to establish their client’s defense through White House personnel instead, calling them to testify to the innocence of their boss’s beliefs. Even assuming there are still employees willing to stand by him, however, Trump’s cronies would not exactly be the most convincing witnesses.
Furthermore, most such testimony would be generally inadmissible under the definition of the hearsay rule, which prohibits out-of-court statements being supplied in testimony in order prove the truth of the matter asserted. Although there would be a hearsay exception for statements showing Trump’s “state of mind,” that would only allow the witnesses to testify to Trump’s actual words. They could not opine on whether he was truthful or sincere.
In the end, Trump will have to deal with the key accusation in the indictment: “Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew they were false.”
For once in his life, Trump cannot count on talking his way out of it.
