We all know that Trump’s ultimate defense is to win the election and use his control of the DOJ to put an end to the federal charges against him. But what if that doesn’t work? What if he actually goes to trial, and his freedom is on the line?
Trump’s first defense is that his activity was political speech that is entitled to the strongest possible protection under the First Amendment. The weakness in this argument is that several kinds of socially damaging speech are not entitled to any First Amendment protection at all, and the crimes he is alleged to have committed incorporate some of these exceptions. Fraud, for example, inevitably involves speech. So does conspiracy. By definition, you can’t have a conspiracy without communication.
My guess is that the judge will dispose of these defenses even before trial. Smith and his team will have to be careful to draw a clear line between legitimate political speech and criminal activity when they put on their case, however. Filing lawsuits–even patently frivolous ones–is not a crime; directing the creation of false sets of electors and demanding that election officials find additional votes is, provided that the intent set out in the relevant statutes can be proved. More on that in subsequent posts.