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Is ‘Free Speech’ a Valid Defense to Trump’s New DC Indictment?

In a word, no.  In two words, NO WAY.

This is a political defense, being played out in the court of public opinion, a court in which no rules exist, no judges preside, no legal analysis is required.  No.  It’s simply talking heads trying to wash the gullible brains of the public.

Here’s why Free Speech is NOT a defense to Conspiracy:  ALLLLL Conspiracies require proof of speech.  SPEECH IS the crime.  No Speech?  No conspiracy. (Note:  Texts, emails, etc., are all “speech”).

It’s like arguing that it’s legal to possess a firearm, except what you are charged with is Armed Robbery.  There are limits to what you can do with a gun.  Like not robbing banks with it.  There are similar limits to what you can do with speech. Like not committing Fraud. Even committing Forgery is a form of Speech.  Writing.  So, it’s a silly argument, at least for real lawyers.

The classic example of unprotected speech is that the First Amendment does not protect someone causing a riot by yelling FIRE! In a crowded movie theater, just for fun.  It’s a crime.  Here, a better analogy is that a bunch of people talking about robbing a bank, in person or otherwise, even if they ALL went to law school and hold bar cards (also not a defense, duh) are all guilty of Conspiracy to Commit Robbery.

The idea that Free Speech would fly as a valid legal defense in a REAL COURTROOM with a Conspiracy charge is absurd. I doubt they even attempt to run that up the flagpole.  No, that nonsense is only meant for the ill-informed public, living in their world with no rules.

WHAT IS a decent “colorable defense”?  I think I’d argue that he truly believed he had won, and really relied on advice from his lawyers, so therefore, he did nothing wrong. That could fly.  That would be my first guess, without ever reading Discovery.  So, it could change if I really were on this case and read it all.  Unlike pundits, I need to see actual case files before forming a final opinion.

But, at first blush it’s a valid defense they cannot shut down, regardless of what pundits say about it.  The pundits are clueless if they get all ‘legal eagle’ about it, pointing out that a defendant cannot legally follow illegal “legal” advice.  Technically, it’s true. Legally speaking.  (Confused about all the “legals”?  Good, that’s the idea in trial.)

However. The only question in a courtroom (vs. a TV Studio) is whether the Government can stop the Defense from making that argument in front of a jury.

It is true that there are some defense arguments that are simply not allowed.  For example, if you use the SODDIT defense (some other dude did it) there are rules about what you can and cannot argue, and how.  If you simply get up in Opening and start telling jurors that it was somebody else, not your client, who did the crime, with zero proof, the judge will shut it down before you can get started.  You could even be sanctioned.  It looks bad too, in front of the jurors, to be called out like that.  So, you don’t even try.

With the “I really truly believed I won the election, and simply followed my lawyers’ bad legal advice” defense, I do not see how the Feds can prevent the Defense from arguing that in court.  So, I feel they can argue it.  Keep in mind that all the defense needs is one juror, really.  If only one juror believes that theory, it would mean at least a hung jury.

That would mean a mistrial and the entire long, slow process would have to go all the way back to Square One and start up all over again.  Complete with appeals and more motions along the way.

There has to be a unanimous verdict, one way or the other.  So, if you confuse just one juror, even if you use a borderline argument, so what? You won.

Hanging a jury in Federal Court on a giant trial is a win, trust me. I know.  I’ve done it. It feels great, even if it’s not a Not Guilty.

So, that would be a good result and that is all they need in the end.  Of course, they will shoot for the big NG, but a hung jury here, given the timing and the election and on and on and on?  What a mess that would create for the Feds.

Therefore, this is my prediction if this case winds up in trial.  (Of course, that would only be after multiple Pre-Trial Motions, so who knows when that will happen, another critical variable).  The Defense is going to fly the flag of:

“I really believed, in good faith, everything my lawyers told me.  I didn’t go to law school, but they did.  I had many lawyers saying many different things.  I picked the advice that I felt was the best, in order to help me fix the fact that I won the election and Biden cheated to win.”

By the way, more than half of all Republicans apparently now believe this is true, that Biden stole the election, so it is far from not being believable, it would seem, in terms of what potential jurors might warm up to as a defense theory.

So, that’s my call, as someone who has done some big cases in Federal Court:  Clueless follower of bad legal advice believed what he was told, not Free Speech, will be the Defense.

That is what I would do.