John Lauro, attorney for former President Donald Trump, sees a silver lining in the Department of Justice’s latest indictment of his client: Trump will be able to litigate why he believes the 2020 presidential election was fraudulent.
“In 2020, Mr. Trump’s campaign had a few weeks to prepare and present evidence, and it was very difficult,” Lauro told Fox News host Bret Baier Tuesday night after special counsel Jack Smith announced the 45th president would be indicted for questioning the election’s integrity.
“We now have the ability in this case to issue our own subpoenas, and we will re-litigate every single issue in the 2020 election in the context of this litigation,” Lauro added. “It gives President Trump an opportunity that he has never had before, which is to have subpoena power since January 6 in a way that can be exercised in federal court.”
In his most recent indictment, Smith accuses Trump of four crimes: conspiracy to deceive the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and attempt to obstruct an official proceeding, and conspiracy against rights.
Trump created “widespread mistrust” in his attempt to “overturn the legitimate results of the 2020 election,” Smith alleged.
In addition, the former president was aware that his claims of election fraud were fraudulent when he made them, according to the special counsel.
Lauro denied that Trump made knowingly deceptive statements about the election, but even if he did, the First Amendment still protects his right to free speech.
“It’s not just issues of fraud. It’s also the fact that procedures were changed, undeniably so, that procedures at the state level were changed without the ability of the legislature to weigh in,” Lauro explained.
On January 6, 2021, Trump intended to exert pressure on Congress not to certify the Electoral College vote, so that state legislatures would have one last opportunity to review and weigh in on how their respective elections had been conducted.
“The reality is that the state legislatures in every state have the ultimate responsibility for qualifying electors. So what Mr. Trump did was exactly, constitutionally precise and in order. There was nothing illegal about that,” Lauro argued.
Article II, section 1, clause 2 of the Constitution provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
Trump “was required to take steps, as president of the United States, to ensure that that election was held in a valid way,” Lauro said. “All of that, now, is being criminalized.”
Baier countered Lauro’s assertions, saying, “The states did that. Each individual state certified the elections. They were signed by the governors — many of them Republican governors, and many of them Republican secretaries of state, that signed off and certified those election results before they came to Washington, D.C., and we had what was January 6.”
“So what you’re talking about was done. It was certified,” Baier reiterated.
Trump and the Republicans were not contesting election results in all 50 states, but rather in marginal states where Trump lost in 2016 and Biden won in 2020.
Only Georgia possessed a Republican governor and secretary of state. In Pennsylvania, Michigan, and Wisconsin, both positions were held by Democrats. In addition, while the governor of Arizona was a Republican, the secretary of state who oversaw the election was a Democrat.
Lauro concluded, “It’s never been presented to the states. Now what we’re going to have is, not just a civil trial, but a criminal trial exercising his right to speech.”
The state of Texas filed a lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin at the U.S. Supreme Court in December 2020, accusing state officials of not following election laws.
The complaint said that officials “usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes. They accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”