Two Reasons Why Trump's January 6 Defense Is Unlikely to Work

My new essay on CNN.com explains why Trump’s defenses in the January 6 case are not going to work.

Here is the gist:

Opinion: Why Trump’s January 6 defense is even worse than it seems

August 28, 2023

Trump defense lawyer John Lauro, however, told NBC News, among others, that Trump, who has denied any wrongdoing, “believed in his heart of hearts that he had won that election.”

Trump’s lawyers may well advise him to stay off the witness stand and avoid the risks of cross examination — but demure silence is hardly in his nature.

Testifying, however, would carry many risks for him. To start with, upon voluntarily taking the stand, Trump would waive the Fifth Amendment’s protection from responding to questions whose answers could be self-incriminating, thus exposing himself to cross examination on every aspect of the charged crimes.

Moreover, having Trump on the stand would aid prosecutors in sketching out a clear narrative of events for jurors. Typically in trials, separate witnesses testify in piecemeal fashion about different events, resulting in a patchwork of evidence that the prosecutors can tie together only in their closing argument at the trial’s end. In Trump’s cross examination, however, the prosecutors would be able to confront him with his false statements one after another, seamlessly telling their entire story of Trump’s duplicity in his own words.

It gets worse. Trump evidently also plans to raise the “advice of counsel” defense, relying on assurances from his lawyers that his tactics were all lawful and thus negating criminal intent.

Mounting an advice of counsel defense, for its part, means waiving attorney-client privilege. In other words, John Eastman, Rudy Giuliani and the entire “gaggle of crackpot lawyers,” as Mike Pence called those who advised Trump, could not claim confidentiality if subpoenaed by the prosecution to testify against their erstwhile client.

For once in his life, Trump cannot count on talking his way out of it.

You can read the entire essay on CNN.com.