Experts are skeptical of Trump's 2 floated legal defenses in 2020 election case

Former President Donald Trump will be arraigned in federal court in Washington, D.C., on Thursday afternoon on four felony counts of conspiracy and obstruction tied to his efforts to overturn his 2020 loss to President Biden.

In "the court of public opinion," Trump's "defense can be boiled down to three words: What about Hunter?" Peter Baker wrote at The New York Times. But Trump's lawyers are also previewing at least two arguments they could use to defend him in federal court.

Trump attorney John Lauro has been using TV and radio appearances to argue that special counsel Jack Smith is trying to convict the former president for using his First Amendment right to "free speech and political advocacy." Lauro also said Trump was relying on the advice of lawyers around him, notably "eminent scholar" John Eastman, a conservative lawyer and unindicted co-conspirator who provided Trump with a "smoking gun of innocence" in the form of a written road map for derailing the congressional certification of Biden's victory.

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Legal experts "say there's little legal merit to Trump's First Amendment claims," The Associated Press reported. Asserting that he was relying on the advice of lawyers is "more likely to provide Mr. Trump with a stronger defense than if he invoked the First Amendment," the Times added. But as former Attorney General William Barr noted on CNN Wednesday night, an advice-of-counsel defense would require Trump "to get on the stand and subject himself to cross-examination," and "I think it would not come out very well for him" if he took the stand.

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The Justice Department is not attacking Trump's "First Amendment right," Barr told CNN. Trump "can say whatever he wants. He can even lie. He can even tell people that the election was stolen, when he knew better. But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech."

"There is no First Amendment privilege to commit crimes just because you did it by speaking," and "there is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts," Duke University law professor Samuel Buell told the Times. "Tony Soprano can't invoke the First Amendment for telling his crew he wants someone whacked," he added. So that defense "won't work legally but it will have some appeal politically, which is why he is pushing it."

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Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.