Donald Trump’s primary legal strategy regarding his four criminal indictments has so far been “delay, delay, delay,” in the hope that he can avoid any one conviction until after the November election. As The Washington Post noted last month, polls show that a criminal conviction would deal a major blow to Trump’s chances of winning the presidential race against President Joe Biden.
Special counsel Jack Smith’s federal case against Trump, which charges the former president with four felony counts related to alleged criminal conduct aimed at overturning the results of the 2020 presidential election, is tentatively scheduled to begin on March 4. But that trial date is likely to be pushed back until the summer assuming there’s a relatively quick decision, potentially by the Supreme Court, on an appeal by Trump’s legal team positing that he should be immune from prosecution in the case because the conduct cited in Smith’s indictment happened while he was still president.
But if Trump actually goes on trial in the summer, it looks like his trial strategy will amount to throwing as much ketchup against the wall as possible in hopes that enough of it will stick.
The magazine promised a pretrial and courtroom strategy “laced with conspiracy theories, Fox News-style talking points and raging innuendo — just as the spectacle-obsessed former president craves.” Rolling Stone cited as sources “four legal and political advisers to Trump and two other sources familiar with the situation,” all of whom went unnamed.
Trump’s spokesperson and lawyer also did not respond to the outlet’s requests for comment.
This trial strategy might very well resonate among Republicans, according to the results of a poll released Tuesday by The Washington Post:
Three years after the Jan. 6 attack, Republicans are more sympathetic to those who stormed the U.S. Capitol and more likely to absolve Donald Trump of responsibility for the attack than they were in 2021, according to a Washington Post-University of Maryland poll.
Republicans are showing increased loyalty to the former president as he campaigns for reelection and fights criminal charges over his attempt to stay in power after losing in 2020. They are now less likely to believe that Jan. 6 participants were “mostly violent,” less likely to believe Trump bears responsibility for the attack and are slightly less likely to view Joe Biden’s election as legitimate than they were in a December 2021 Post-UMD survey.
In follow-up interviews, some said their views have changed because they now believe the riot was instigated by law enforcement to suppress political dissent — a baseless conspiracy theory that has been promoted heavily in right-wing media and by Trump in his speeches and in his legal fight against the four-count federal indictment he faces in D.C.
“From a historical perspective, these results would be chilling to many analysts,” said Michael J. Hanmer, director of the Center for Democracy and Civic Engagement at the University of Maryland.
The poll found that Democrats “remain largely in agreement that the (Jan. 6) riot was a violent threat to democracy for which Trump bears responsibility” and that independents “mostly side with Democrats.”
The poll found that 62% of Americans believe that Biden was legitimately elected, down from 69% in the December 2021 poll, a dropoff mostly due to shifts among Republican voters. More than one-third of those polled—36%—do not accept Biden’s victory as legitimate.
Special counsel Smith’s team of prosecutors has already taken preemptive steps in an effort to prevent Trump from turning the trial into a circus and in effect, a prolonged campaign ad. But Rolling Stone noted that “trying to muzzle the former reality TV star is easier said than done.”
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In a pretrial motion filed last Wednesday, Smith’s team asked U.S. District Court Judge Tanya Chutkan to prevent Trump from raising issues during the trial that have nothing to do with determining whether he is guilty of the charges in the indictment.
Slate wrote:
The motion seeks pretrial evidentiary rulings from the judge to ensure that Trump can’t politicize his trial by introducing evidence that would turn a courtroom into a circus. The former president has already begun to attempt this with statements that are playing a large part in his campaign to return to the White House but otherwise have no bearing on the case at hand.
[…]
As the special counsel’s motion put it, Trump’s defense should be barred from “raising irrelevant political issues or arguments in front of the jury. … In addition to being wrong, these allegations are irrelevant to the jury’s determination of the defendant’s guilt or innocence, would be prejudicial if presented to the jury, and must be excluded.”
Slate wrote that Smith “wants the court to preclude Trump’s claims of government’s ‘coordination with the Biden Administration’ to bring the case.” The Washington Post said that among the potential defenses that Smith asked the judge to ban at trial were that “law enforcement’s failure to properly prepare is to blame for the Jan. 6, 2021 attack on the U.S. Capitol.”
Trump’s lawyers have also supported requests by media organizations that Chutkan allow Trump’s trial to be televised. Smith has opposed overturning generally applied federal rules that bar televising trials. Axios reported that in a filing in November, Smith’s office wrote that the request is an attempt by the former president to turn the trial into “carnival atmosphere from which he hopes to profit by distracting, like many fraud defendants try to do, from the charges against him.”
Trump’s own public statements underscore some of the points raised in the Rolling Stone story about what his legal team might try to pull at trial. For example, in a September “Meet the Press” interview with Kristin Welker, Trump blamed then-House Speaker Nancy Pelosi for failing to secure the Capitol on Jan. 6—a baseless claim that Pelosi dismissed as “projection” on Trump’s part.
Trump has also repeatedly claimed that he is a victim of political persecution and that the cases against him amount to election interference.
As he ranted in a festive Christmas Eve post on his Truth Social platform:
“THEY SPIED ON MY CAMPAIGN, LIED TO CONGRESS, CHEATED ON FISA, RIGGED A PRESIDENTIAL ELECTION, ALLOWED MILLIONS OF PEOPLE, MANY FROM PRISONS & MENTAL INSTITUTIONS, TO INVADE OUR COUNTRY, SCREWED UP IN AFGHANISTAN, & JOE BIDEN’S MISFITS & THUGS, LIKE DERANGED JACK SMITH, ARE COMING AFTER ME, AT LEVELS OF PERSECUTION NEVER SEEN BEFORE IN OUR COUNTRY??? IT’S CALLED ELECTION INTERFERENCE. MERRY CHRISTMAS!”
According to four of Rolling Stone’s sources, Trump has demanded that his attorneys “incorporate an array of crank conspiracy theories about Jan. 6 and the 2020 election into their court filings and, eventually, performances at trial.” These include that anti-Trump elements in the FBI used undercover agents and informants to frame him and MAGA protesters on Jan. 6, and that left-wing antifascists—the right-wing bogeymen known as “antifa”—played a role in the Capitol attack.
Newsweek reported that Trump’s legal team has also asked for “a vast array of classified documents” to support his notion that the 2020 election was rigged against him, including documents relating to Russian and Iranian meddling and alleged Chinese hacking of election computers. This request was also seen as another delaying tactic.
A lawyer who once represented Trump but quit his legal team questioned the legal strategy for the trial outlined in the Rolling Stone story.
“From what I can tell—as an outside observer and former member of Donald Trump’s legal team—about how the trial strategy is taking shape, all I can say is: It is a terrible idea to try to use a criminal trial to stage a political campaign ad,” Tim Parlatore, formerly one of the top lawyers advising Trump on the Jack Smith investigations, told the outlet.
“That would be incredibly detrimental to the client,” he said. “It is also a surefire way for you to quickly alienate jurors, particularly when you’re dealing with a jury pool like Washington, D.C.’s.”
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Another former Trump attorney Ty Cobb, who served as a top Trump White House attorney during special counsel Robert Mueller’s probe into Russian election interference, told Rolling Stone that “[i]t’s not gonna work. Trump and his lawyers, I’m sure, would like to see [the trial] devolve into a chaotic circus, but I don’t think they’re even going to get that … The biggest problem Donald Trump and his lawyers have is that they have no evidence and they have no witnesses… I haven’t seen a single email or document that would be helpful to him.”
