One luxury of being a politician is you can pick your spots and comment on what you want, however broadly or narrowly. So when Donald Trump’s indictment over Jan. 6, 2021, landed, Florida Gov. Ron DeSantis and Mike Pence issued brief statements that avoided the substance of the case and promised to offer more later — when they could decide how they wanted to play it.
Not everyone has that luxury. Some people, like Trump’s lawyers, have to actually defend the former president or fill 60 minutes of airtime without the benefit of reflection.
And those people have offered some remarkable defenses of Trump.
The arguments often boil down to this being a case of a former leader of the free world who simply didn’t know any better — even while lodging claims of massive voter fraud and trying to overturn a democratic election.
In the hours after the indictment landed, this approach was couched; those who promoted it seemed careful to suggest only that Trump believed the things he was saying. Mostly, his defenders themselves conspicuously declined to back up Trump’s wild claims — many of which were laughable even 31 months ago.
Trump lawyer John Lauro set about making such an argument Tuesday night on Fox News.
“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” Lauro said.
This is a valid legal argument, and it will be key to whether special counsel Jack Smith can obtain a conviction. Showing Trump knew better — as Smith says unequivocally that Trump did — would help prove that the effort was corrupt. The indictment reinforces how many high-ranking people around Trump personally told him that these things were false.
But even the indictment acknowledges that Trump privately continued to say the election was stolen from him — as late as the afternoon of Jan. 6, 2021.
“See, this is what happens when they try to steal an election,” Trump told others in the White House after finally telling the Capitol rioters to go home, according to the indictment. “These people are angry.”
Lauro needn’t prove that Trump did believe these things; the burden is on Smith to prove that Trump didn’t. But it’s certainly notable that Trump’s lawyers will now be forced to suggest that maybe Trump actually believed that 1 out of every 100 votes in Arizona was cast by a noncitizen, or that maybe there were 205,000 more votes than voters in Pennsylvania — a claim that takes precious little time to debunk. (These were two of the claims Smith noted Trump had been told were false but promoted anyway.)
And Lauro wasn’t alone. This kind of argument was a fixture later on Fox News.
“Now, I know this doesn’t count in a court of law, but do you think Trump had any idea that he was breaking the law when he was asking Mike Pence not to certify?” Fox host Jesse Watters asked rhetorically.
Note that this argument concedes the point that Trump was breaking the law — just unknowingly.
And to be clear, Trump was told that Pence didn’t have such authority, including repeatedly by Pence. Trump’s defense might be that his own lawyer John Eastman suggested that it was viable to have Pence at least send the matter back to the states and that he was relying on advice of counsel. But Pence’s counsel, Greg Jacob, has testified that he recalled Eastman’s telling Trump on Jan. 4, 2021, that the plan violated the Electoral Count Act. And Eastman in a pre-election memo objected to the idea that Pence could reject ballots.
It’s evident that the legality of this tack was at least broached with Trump, on multiple occasions. To suggest that Trump couldn’t have “any idea” it might be illegal is strangely reductive when you’re talking about a former president.
And that reductiveness had company.
Lauro, on the same subject, said on CNN: “Mr. Trump is not a lawyer. He’s a businessman.”
Others on Fox effectively cast Trump as having a genuine belief that the election was stolen and promoting that belief as his saving grace — while keeping at arm’s length the idea that they themselves believed the election was stolen.
“His crime was believing and saying that the election was rigged,” host Laura Ingraham said.
Trump’s spokeswoman Alina Habba said on Watters’s show that “everybody that knows Donald Trump and has read his [social-media posts] know he still believes the election was stolen, and he has good cause to believe so.”
The argument from his own spokeswoman isn’t that the election necessarily was stolen, mind you, just that Trump has cause to believe that. Habba also cited not Trump’s most far-fetched claims, but rather “ballot harvesting” and “things of that nature.” (This is a trend with Republicans that dates back to the post-2020 election period: offering watered-down claims about election problems that don’t actually come close to matching Trump’s claims.)
A little more than three minutes after Habba’s comment — and 20 minutes after Watters posited that Trump couldn’t have known the Pence plot was illegal — Watters teased his next segment, regarding unsubstantiated allegations against the Bidens.
“Democrats are saying Joe Biden is too dumb to be guilty — next,” Watters said.
His voice carried no hint of irony.
