Former President Donald Trump's legal strategy in the 2020 election interference case has primarily focused on delaying the March trial until after the November presidential election, but recent court filings reveal a new strategy: aiming to absolve Trump of responsibility for the attack on the Capitol and portray him as a victim of disinformation and government overreach, according to CNN.
His most recent filings indicate that during his trial, Trump’s lawyers plan to employ a new defense by highlighting individuals in the federal government whom the former president perceives as biased against him, pointing to foreign influence and emphasizing election disinformation that contributed to his belief that the 2020 election was stolen, the publication reported.
“Trump’s lawyers are taking a belt and suspenders approach to his cases,” former federal prosecutor Neama Rahmani told Salon. “They know their best defense is procedural: that is, delay until after the November election. But they also want to put on a substantive defense.”
The ex-president’s legal team has already requested a judge’s permission to grant him access to additional government documents, including classified information from his administration. He believes these documents would support his argument that the election result couldn’t be trusted, according to CNN.
“The Office cannot blame President Trump for public discord and distrust of the 2020 election results while refusing to turn over evidence that foreign actors stoked the very same flames that the Office identifies as inculpatory in the indictment,” his lawyers wrote.
Even though multiple investigations have found no evidence of widespread voter fraud in the 2020 election, Trump and his allies continued to spread baseless claims. Now, his lawyers are presenting an argument that evidence of “covert foreign disinformation campaigns” tied to the 2020 election supports the defense argument that Trump and others acted in good faith even if specific reports were later deemed inaccurate.
Pointing to a foreign action by Russia's foreign intelligence service, Trump's legal team emphasized the December 2020 hack of SolarWinds, which compromised data in several federal agencies. They asserted that this attack prompted reasonable concerns about the election's integrity and the potential for “technical penetrations of election infrastructure.”
The SolarWinds hack has not been linked to election systems and officials have consistently discovered no indications of widespread election fraud, CNN reported.
Another tactic Trump’s legal team has employed includes understanding how various investigative agencies within the federal government examined his actions following the 2020 election.
His legal team would use this approach to highlight that Trump only faced charges after Attorney General Merrick Garland appointed a special counsel in November 2022. “Undermining the prosecution by pointing to politics could be an opportunity to help Trump before a jury,” CNN reported.
The trial court will likely find that allegations of foreign influence, disinformation and biased prosecutors and other government officials will mostly "confuse" the jury and are evidently "not relevant" to Trump's state of mind, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. This is particularly true given that he was “repeatedly” and “strongly” advised by insiders close to him that he lost the election.
“It’s a desperate and distracting effort to throw all sorts of wild and irrational claims against the wall and hope that something sticks,” Gershman said. “In legal circles, it’s mockingly referred to as the ‘shotgun’ or ‘kitchen sink’ defense.”
First, it’s “unlikely” that the trial judge will allow any of these claims to be presented, he added. It's important to recall that Trump's lawyers litigated stolen election claims in over 60 courtrooms and lost every one of them.
“It’s difficult to see how these new allegations – which appear to have been invented out of nothing but wild speculation – are based on any credible or reliable facts,” Gershman said.
There is also the danger that this information might be misused by the defense to try to get the jury, or even one juror, to engage in what in legal terminology is called "jury nullification,” he explained. It is “improper” for a lawyer to try to get jurors to “disregard or nullify” the law and the facts and conclude, without any evidence, that Trump was a “victim” of an insidious political plot to rob him of the election.
Election fraud requires prosecutors to prove that Trump knew he lost the election, and that he intended to overturn the results anyway, Rahmani explained. If Trump reasonably believed that disinformation and foreign influences were unlawfully interfering with the 2020 election and that his actions were part of an investigation into the results, this could serve as a defense against fraud.
If Trump wants to claim that he was a victim of a disinformation campaign that made him believe he won despite “massive evidence to the contrary,” he probably would have to testify, which he will never do, Gershman said.
The defense also will have to support these allegations with “a foundation of concrete evidence,” which they probably lack, he continued. And again, they will not be allowed to convince the jury to “disregard the facts and the law” to somehow find that Trump was a victim of a “nefarious plot” by foreign officials in tandem with a “hodgepodge” of government officials to steal the election from Trump.
“It’s quite ironic that Trump was helped to his election in 2016 by Russia’s disinformation campaign,” Gershman said.
Trump's legal team has raised concerns about potential "political bias" among the intelligence community and law enforcement witnesses in the trial. Despite this, some of Trump's former Cabinet members, including then-Attorney General Bill Barr, then-Vice President Mike Pence, and top intelligence officials, may be called to testify against him, according to CNN. Many of them remained vocal that there was no indication of widespread fraud after the election.
“The bias and selective prosecution are weaker arguments, but the defense is throwing every argument they can out there to see what sticks,” Rahmani said.
