Donald Trump has boasted that he regards being indicted as “a badge of honor.” If so, he has racked up quite a pile of badges. Last week’s latest federal indictment brought the total number of criminal charges against him in New York State court and federal courts in Florida and in Washington, D.C. to nearly 80 and he is about to be awarded another batch of badges by a grand jury in Georgia. So it has been a bumper crop for Trump where badges are concerned, and things are about to get bumpier.
In truth, Trump did not seem all that honored when he stopped at Reagan National Airport on Thursday to speak to reporters after being arraigned. He lashed out at trash collection in Washington before boarding his private plane.
That Trump was not feeling quite as honored by the new criminal indictment was strongly suggested by his furious reaction to it. “IF YOU GO AFTER ME, I’M GOING AFTER YOU” proclaimed our model citizen on his social media platform, which sounded an awful lot like a threat to potential witnesses against him, of which there is no shortage. Among those that he appears to be going after is the federal judge assigned to the new case, who has been no-nonsense when it comes to handling the criminal cases in front of her brought against Trump’s Jan. 6 foot soldiers. Trump is demanding that she recuse herself.
His lawyers are also demanding that the case be transferred out of Washington, D.C. to a venue that they feel will be more hospitable to him. They seek a trial in West Virginia, a state that voted overwhelmingly for Trump in 2016 and 2020. Moscow is unavailable.
Trump’s team is auditioning two principal defenses to the latest indictment charging him with fraudulently and corruptly attempting to block the constitutionally-mandated counting of the electoral votes cast in the 2020 election won by Joe Biden. One is that Trump’s intent was innocent, because either (1) he actually won the election or (2) he honestly believed he had won it. This defense has a number of problems with it, starting with the fact that both theories are laughable. Another drawback is that for Trump to try to convince the jury that he actually believed he had won the election he would have to take the stand in his own behalf. The cross-examination of Trump by prosecutors would lend new meaning to the phrase “shooting fish in a barrel.”
Trump’s second defense is that any conspiracy by him to obstruct the counting of electoral votes, any effort to pressure Vice President Mike Pence into blocking the certification of those votes and any scheme to substitute phony electors for legitimate ones was protected by the First Amendment. This is also a tough one. All conspiracies to violate the law involve “speech” to some degree, which doesn’t immunize them from criminal prosecution.
A 2012 Supreme Court decision illustrates the uphill battle Trump faces to wriggle out of the latest indictment on First Amendment grounds. The Court listed a number of contexts in which deceitful “speech” is criminal, including “advocacy intended and likely to incite imminent lawless action,” “speech integral to criminal conduct” and lies aimed at undermining “the integrity of governmental processes.” This bodes ill for Trump.
And Trump is also charged with fraud. “Where false claims are made to affect a fraud or to secure valuable consideration,” the Supreme Court held, “it is well-established that the Government may restrict speech without affronting the First Amendment.”
“You’re too honest,” Donald Trump is alleged to have admonished Mike Pence. That is one reason why Trump is in the dock, and Pence isn’t.
Jeff Robbins is a Boston lawyer, former ,former assistant United States attorney and U.S. delegate to the United Nations Human Rights Council.
