Donald Trump’s lawyers are preemptively preparing a legal defense against criminal charges from the Justice Department, as the former president’s lawyers are increasingly anxious that their client will be prosecuted for his role in the attempt to overturn the 2020 election.
Members of the ex-president’s legal team have already begun brainstorming strategy and potential defenses, according to three people familiar with the matter and written communications reviewed by Rolling Stone. Trump himself has been briefed on potential legal defenses on at least two occasions this summer, two of the sources say.
That effort intensified after former Trump White House aide Cassidy Hutchinson’s June testimony before the House committee investigating Jan. 6.
“Members of the Trump legal team are quietly preparing, in the event charges are brought,” says one person familiar with the situation. “It would be career malpractice not to. Do the [former] president’s attorneys believe everything Cassidy said? No … Do they think the Department of Justice would be wise to charge him? No. But we’ve gotten to a point where if you don’t think criminal charges are at least somewhat likely, you are not serving the [former] president’s best interests.”
The sources spoke on the condition of anonymity to discuss internal deliberations. Official Trump spokespeople did not respond to requests for comment on this story.
In their preparations, Trump’s team has discussed strategies that involve shifting blame from Trump to his advisors for the efforts to overturn the election, per the three sources, reflecting a broader push to find a fall fall-guy — or fall-guys. “Trump got some terrible advice from attorneys who, some people would argue, should have or must have known better,” says one of the sources with knowledge of recent discussions in Trumpland. “An ‘advice of counsel’ defense would be a big one.”
Other potential strategies include defenses based on the First Amendment and the right to petition the government over a political grievance. Such arguments are viewed internally as potential defenses against charges related to the “fake elector” scheme.
Federal prosecutors have questioned aides to former Vice President Mike Pence about Trump’s involvement in his campaign’s effort to put forth slates of those fake electors, the Washington Post reported last week. After Trump lost the election in November, his campaign and supporters recruited the fake electors to proclaim Trump to be the recipient of their state’s electoral college votes. The effort aimed to provide an air of legal legitimacy to Trump’s election fraud conspiracy theories, as well as to pressure officials in battleground states to declare him the winner. The effort failed, but it has since attracted the attention of prosecutors, not just at the Justice Department, but in the swing states where Republicans assembled slates of phony electors.
If the Justice Department does come with charges, Trump’s current team has acknowledged they would have to bring on more legal firepower to handle the historic legal defense. “You’d need to have a real heavyweight at the top [of the legal team] for something like that, but right now nobody knows who that would be,” one Trump adviser says.
Some of Trump’s higher ranking legal and political counselors doubt Attorney General Merrick Garland would be willing to go through with charges. Biden’s pick for Attorney General has been long regarded as a consummate institutionalist, wary of the unintended consequences or precedents that could come from criminally charging a former president.
“I do think criminal prosecutions are possible. Whether they are advisable is a more difficult consideration for the country,” Ty Cobb, a former top lawyer in Trump’s White House, told Rolling Stone in June. “Possible for Trump and [Mark] Meadows certainly. And for the others, including lawyers, who engaged fraudulently in formal proceedings or investigations.”
Criminal charges against a former president would mark the first time in American history that a former president has been prosecuted for crimes committed in office. A Nixon-era Justice Department memo, reiterated during the Clinton presidency, stated that presidents should not be charged while in office. But how the prosecution of a former president could take place legally remains unclear, given the lack of precedent, and would invite constitutional challenges ending up to the Supreme Court.
Trump also seems keenly aware of the blowback that could result from a federal indictment — and is telling supporters it could be politically advantageous. Early this year, the former president told fans at a Texas rally that if prosecutors go after him, “we are going to have in this country the biggest protest we have ever had…in Washington, D.C., in New York, in Atlanta and elsewhere.”
Trump has that rally repeated versions of that line to confidants and longtime pals, including at casual gatherings this summer, a person with direct knowledge of the matter says. “He says,” the source recalls, “it would make the crowd size at [Jan. 6] look small by comparison.”