Observations of an expat: The Big Lie is finally in court

Donald Trump will get his wish. He desperately tried to air his election fraud claim in court. He made over 50 attempts to do so, including two to bring it before the Supreme Court.

But Trump’s problem is that the wrong person – or entity – is charged with lying. It is not the swamp, deep state, establishment elite or the blob that is being hauled before the court accused of porky pies in pursuit of naked power. It is Donald Trump.

The cornerstone of the case of Special Counsel Jack Smith and the Department of Justice is that Donald Trump lied when he claimed electoral fraud. That he – and his co-conspirators – knew that he lied and that he used the lie in the criminal pursuit of subverting the US constitution, the electoral laws and the proceedings of Congress.

If he didn’t lie. If Donald Trump is indeed the victim of an elaborate conspiracy involving the Department of Justice, his own Vice President, over 50 courts and tens of thousands of individual vote tellers, then Jack Smith’s case collapses into an ignominious legal heap.

Trump’s lawyers hope they have a constitutional ace up their sleeves – the right to free speech as enshrined in the First Amendment. Freedom of speech protects the right to lie – up to a point.

Bill Barr, Trump’s Attorney General, was prominent among those insisting that the ex-president accept the election results and attacked him for not doing so. This week, the country’s former top lawyer, dismissed the First Amendment defense. He said: “They (the Department of Justice) are not attacking his First Amendment rights. He can say whatever he wants. He can even tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy to defraud the United States.”

It is the conspiracy angle that Jack Smith is focused on. And key to conspiracy argument is Trump’s unsuccessful efforts to persuade Vice President Mike Pence to throw out the Electoral College votes at the ceremonial vote count on January 6. Pence said this week that he had “done his duty” by not bowing to Trump’s demands. The former Vice President is mentioned 100 times in the 46-page indictment.

Trump’s lawyers may also use the presidential immunity clause. He was president when he attempted to compel Pence to overturn the vote and when he urged the crowd to “march on the Capitol.” But after January 20, 2021 he was an ex-president who for the next 17 months tried to persuade states to de-certify the results.

A major player in this process was his lawyer John Eastman who is named as a co-conspirator but so far is un-indicted (other named co-conspirators include Rudy Giuliani, Sidney Powell and Jeffrey Clark). It was Eastman who came up with the plan for Pence to de-certify the Electoral College vote. He has been described as “the serpent in the ear of the president.”

Oddly enough, the bad advice that Eastman gave Trump could save the former president. Under the terms of attorney-client privilege, the client (in this case Donald Trump) can pass liability for a crime to the lawyer who wrongly advised them. Say some.

The Supreme Court case Clark v. the United States has ruled otherwise. The Justices wrote: “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”

Odds are that the Supreme Court will have the opportunity to rule again on the limitations of attorney-client privilege, presidential immunity and free speech. If Trump loses in the lower courts he will appeal and appeal all the way to the top of the legal tree.

America’s wheels of justice grind exceedingly slowly. Therefore it is unlikely there will be a legal result before the 2024 election. America’s voters must assume the role of their country’s jurors.

* Tom Arms is foreign editor of Liberal Democrat Voice and author of “The Encyclopaedia of the Cold War” and “America Made in Britain".

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8 Comments

  • Donald Trump is way out in front for the Republican nomination and it is shaping up to be a closely fought election race with Joe Biden. If Trump is convicted before the election and is subsequently elected, presumably he could grant himself a Presidential pardon.
    “Political Language is designed to make lies sound truthful and murder respectable, and to give the appearance of solidity to pure Wind”. George Orwell

  • Steve Trevethan 6th Aug '23 - 9:31am

    Here is another view of Mr. Trump’s trial:
    /www.counterpunch.org/2023/08/04/the-system-is-working-the-latest-trump-indictments-and-continuing-existential-threats/

  • Steve Comer 6th Aug '23 - 2:09pm

    There is some doubt as to whether Trump could pardon himself. And even if he could that would only work for FEDERAL crimes. The cases in New York and Georgia will be under STATE law.

  • Peter Hirst 6th Aug '23 - 2:38pm

    American democracy is on trial. I await the result with interest. I also wonder what would happen in this country if similar events unrolled.

  • @Peter Hirst– It is more difficult–but not impossible– for a situation such as what is occurring in the US to happen in the UK because we have a parliamentary rather than presidential democracy. This means, of course, that if the prime minister loses the support of a majority of the Commons (or his own party) then they are replaced. This is exactly what happened to Boris Johnson and Liz Truss. Of course, the parliamentary system has its drawbacks as well, but that is the subject of another post.

  • >” But Trump’s problem is that the wrong person – or entity – is charged with lying.”
    I would not be surprised if his lawyers draw heavily on the David Irvin Holocaust denial trial and so question every piece of evidence presented to the point of sewing seeds doubt.

  • The best outcome may be that Trump self-destructs. He is brilliant at PR and getting the backing of the right wing media. But this is simply support for Trump personally. He struggles to get his head round stuff that’s not about him. Put that lack of mature human experience alongside a tendency to shoot from the hip plus a short attention span and his lawyers have a daunting task. A year may feel like a long time in politics.

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