Trump’s Defense Lawyer Spins the Facts

John Lauro, one of former President Donald Trump’s lawyers, went on five Sunday talk shows to present a counternarrative to a federal indictment that accuses Trump of engaging in a criminal conspiracy to remain in office despite losing to Joe Biden in the 2020 election. In defending his client, Lauro made these false and misleading statements:

• Lauro made a faulty comparison between random submissions of protest electors routinely sent to the Senate parliamentarian by some individuals with what the indictment says was Trump’s coordinated, seven-state effort to replace legal Biden electors with fraudulent Trump electors.

• Lauro wrongly claimed that lawyer John Eastman did not say that having Vice President Mike Pence pause the certification of electoral votes for days would have violated the Electoral Count Act. In an email to Pence’s attorney, Eastman said the plan would be a “minor violation” of the law.

• He also misrepresented private and public comments that Biden made about Trump to give the impression that Biden “put in motion a political prosecution” in order “to take” his political rival “out of the race” for president.

A federal grand jury indicted Trump Aug. 1 on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.

The indictment alleges that Trump and six unnamed co-conspirators “used knowingly false claims of election fraud” to pressure his Justice Department, vice president and state officials in key states that he lost to help him overturn the election results and remain in power.

On Aug. 6, Lauro appeared on the Sunday talk shows to respond to the indictment.

Misleading Electoral College Comparison

In the United States, the Electoral College — not the popular vote — determines the winner of presidential elections. In 2016, Trump lost the popular vote to Hillary Clinton, but won enough Electoral College votes to become president. In 2020, Trump lost both the popular vote and Electoral College to Biden.

By law, electors cast their ballots the “first Monday after the second Wednesday in December,” which was Dec. 14 in 2020, and the electoral votes are counted at a joint session of Congress on Jan. 6, as explained by the Congressional Research Service. The vice president, in his or her capacity as the president of the U.S. Senate, “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted” and announce the president-elect, as stated in the U.S. Constitution.

According to the indictment, Trump and his co-conspirators attempted “to subvert the legitimate election results” on Jan. 6, 2021, by organizing “fraudulent slates of electors” in seven states won by Biden and then attempting to convince Pence to “use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them.”

On CNN’s “State of the Union,” Lauro claimed there was nothing fraudulent about the “alternate” Trump electors in those seven states, because such things happen every four years.

Lauro, Aug. 6: And let me take the first thing, the question about electors, OK? Alternate electors are used in every four-year cycles, OK? The Senate parliamentarian acknowledged to Vice President Pence that they always receive protest alternate electors. None of those electors were counted. … There was no trickery. There was no deceit, because everybody knew. It was all out in the open.

The indictment alleges — with supporting evidence — that Trump and his co-conspirators engaged in trickery and “deceit” in executing the electors scheme. It also documents how that scheme went from being “a legal strategy” in one state to a “corrupt plan” covering seven states.

Let’s look at the facts, as we know them.

First, we’ll explain what the Senate parliamentarian told Pence — which Lauro cites to dismiss the action taken by Trump and his co-conspirators as routine and harmless.

The Senate parliamentarian did tell Pence and his staff that “every four years … random individuals send in separate slates,” according to a deposition that Marc Short, Pence’s former chief of staff, gave to the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol. But Trump is accused in the indictment of something much bigger: an organized and sustained conspiracy “to impair, obstruct, and defeat” the certification of Electoral College votes “through dishonesty, fraud, and deceit.”

The indictment alleges that a series of memos drafted by “Co-Conspirator 5,” whom we’ve identified as attorney Kenneth Chesebro, illustrate how “a legal strategy to preserve [Trump’s] rights” turned into “a corrupt plan to subvert the federal government function by stopping Biden electors’ votes from being counted and certified.”

In a memo dated Nov. 18, 2020, Chesebro — who the indictment says was assisting Trump’s campaign at the time “with legal efforts related to a recount in Wisconsin” — recommended that Trump’s electors meet at the Wisconsin Capitol building and cast electoral votes for Trump and Pence on Dec. 14, which is the date set by the Electoral Count Act, or ECA, for electors to vote.

“There is a very strong argument, supported by historical precedent (in particular, the 1960 Kennedy-Nixon contest), that the real deadline for a finding by the Wisconsin courts (or, possibly, by its Legislature) in favor of the President and Vice President is not December 8 (the “safe harbor” deadline under the Electoral Count Act), nor even December 14 (the date on which electors must vote in their respective States), but January 6 (the date the Senate and House meet for the counting of electoral votes),” Chesebro wrote in his memo.

Chesebro was referring to Kennedy’s victory in Hawaii, which wasn’t secured until after a recount that was ordered by a state court on Dec. 19, 1960 — the same day as the deadline for electors to vote, according to Chesebro’s memo. On that day, Nixon’s electors met to cast their electoral votes with “a certificate from the Hawaii governor certifying that Nixon had won the state” by 141 votes, the memo said. But Kennedy’s electors also met that day “to preserve the possibility that their votes would eventually be certified as the valid ones,” which is what happened after the court on Dec. 28, 1960, issued a final decision declaring Kennedy had won the state by 105 votes, Chesebro said.

Hawaii was a “weird case,” because Kennedy would have been president with or without Hawaii’s three electoral votes, John C. Fortier, co-author of “After the People Vote: A Guide to the Electoral College,” told us. Fortier said he thinks it set a “bad precedent,” but it is something that Trump lawyers could “hang their hat on.”

The Department of Justice seemed to agree in the indictment that the “Wisconsin memo,” as the Nov. 18, 2020, memo was called, represented a “legal strategy.” It noted that Chesebro, “because of the ongoing recount in Wisconsin,” was advocating to “preserve the alternative of the Defendant’s Wisconsin elector slate in the event the Defendant ultimately prevailed.”

However, the indictment says, Chesebro’s Dec. 6, 2020, memo “marked a sharp departure from Co-Conspirator 5’s Wisconsin Memo, advocating that the alternate electors originally conceived of to preserve rights in Wisconsin instead be used in a number of states as fraudulent electors to prevent Biden from receiving the 270 electoral votes necessary to secure the presidency on January 6.”

The indictment — which referred to the Dec. 6, 2020, memo as the “Fraudulent Elector Memo” — goes on to say: “The Fraudulent Elector Memo suggested that the Defendant’s electors in six purportedly ‘contested’ states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin) should meet and mimic as best as possible the actions of the legitimate Biden electors, and that on January 6, the Vice President should open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president-elect.”

In a Dec. 9, 2020, memo, which the indictment refers to as the “Fraudulent Elector Instructions,” Chesebro explained what Trump electors needed to do in each state to satisfy the legal requirements, although he added that it would be difficult, if not impossible, to do so in four of the six states.

“Nonetheless, as directed in the Fraudulent Elector Instructions, shortly after the fraudulent electors met on December 14, the targeted states’ fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others,” the indictment says. “The Defendant and co-conspirators ultimately used the certificates of these fraudulent electors to deceitfully target the government function, and did so contrary to how fraudulent electors were told they would be used.”

Contrary to Lauro’s statement that there was “no trickery” involved in the alternate elector plan, the indictment says: “Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did.”

The “corrupt plan,” as the indictment called it, ultimately failed because Senate Parliamentarian Elizabeth MacDonough found the Trump elector certificates in those states to be deficient. According to Short’s deposition, Pence revised the script he read when opening the electoral certificates and counting the votes on Jan. 6, 2021, to make “very clear that the statute requires them to have been certified by the State.” The script revisions were done in coordination with the parliamentarian, Short said.

Electors are chosen prior to the election by the political parties in each state, as explained by the National Archives and Records Administration, or NARA. In some cases, the Trump electors selected by the party in the targeted states refused to participate in the post-election scheme. Terri Lynn Land, a former Michigan secretary of state and a Trump elector, told another party official that she was uncomfortable with the plan to vote for Trump on Dec. 14, 2020, after Biden had been certified as the state’s winner.

“I just explained that we were having a ceremony,” former Michigan Republican Party Chairwoman Laura Cox told the Jan. 6 committee, recalling her conversation with Land. “And she said, ‘I’m just — I’m not going to do it. I’m not casting a vote. I’m not comfortable.’ I said, ‘Okay.’”

Land was replaced by Kenneth Thompson, who was one of 16 Trump electors who were charged by the Michigan attorney general with eight felony counts related to signing and filing a false certificate claiming that Trump won Michigan. The charges include election law forgery and conspiracy to commit forgery.

Eastman on the Electoral Count Act

On ABC’s “This Week,” Lauro disagreed with host George Stephanopoulos, who correctly noted that attorney John Eastman wrote in an email on the night of Jan. 6, 2021, that Pence pausing the counting of electoral votes would have violated federal law.

Here’s how the exchange on the show went:

Lauro, Aug. 6: The ultimate option that Mr. Trump asked for, President Trump asked for at the Ellipse speech, was merely to pause the voting for a period of time to allow the state legislature to weigh in.

Stephanopoulos: For many – for many days before that he was insisting that they would reject the votes. He was making it very clear to Mr. Pence that he wanted them rejected. You’re right that he eventually went to the Ellipse and said, let’s pause the votes.

Now even that, though, you talk about Mr. Eastman. Even that Mr. Eastman said was a violation of the law. So, he did know that he was breaking the law.

Lauro: No, he didn’t say that.

Stephanopoulos: Yeah, he did say that.

Lauro: No, he didn’t say. He said –

Stephanopoulos: He wrote, it’s a minor violation of the law.

Lauro: No, he said that the Electoral Count Act was unconstitutional. And the only thing that’s required under the Electoral Count Act is a vote on January 6th. What Mr. Eastman said, which is very important.

Stephanopoulos: He said in an email that it was a violation of the Electoral Count Act.

Stephanopoulos was right. He was referring to an email that Eastman sent to Pence’s counsel, Gregory Jacob, on the night of Jan. 6 — after Congress had reconvened following the attack on the Capitol.

In the message, Eastman argued that Congress and Pence already had violated the Electoral Count Act earlier that day by allowing the debate on objections to Arizona’s votes to go longer than the allotted time. He then asked Jacob to consider getting Pence to violate that federal law one more time, by delaying the certification for several days.

Eastman’s email, Jan. 6, 2021: The Senate and House have both violated the Electoral Count Act this evening — they debated the Arizona objections for more than 2 hours. Violation of 3 USC 17. And the VP allowed further debate or statements by leadership after the question had been voted upon. Violation of 3 USC 17. And they had that debate upon motion approved by the VP, in violation of the requirement in 3 USC 15 that after the vote in the separate houses, “they shall immediately again meet.”

So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here. If none of that moves the needle, at least a good portion of the 75 million people who supported President Trump will have seen a process that allowed the illegality to be aired.

It’s also true, as Lauro said, that Eastman had argued the ECA was unconstitutional, including in a memo he wrote laying out the process by which he envisioned Pence could stop the lawful counting of electoral votes on Jan. 6, 2021. 

But even the second step of that plan — which called for Pence to sow doubt about the outcome by first claiming to have received conflicting slates of electors from Arizona  — noted that this would “be the first break with the procedure set out in the Act.”

In other words, a violation of the ECA.

Biden on Prosecuting Trump

On multiple Sunday morning programs, Lauro misleadingly claimed that Biden said last year that he was going to remove Trump from the presidential race.

“We have to remember that President Biden, back in April 2022, which he repeated in November 2022, was that he was going to take President Trump out of the election, even though President Trump is his most significant opponent,” Lauro said on “Fox News Sunday.”

He made a similar claim on NBC’s “Meet the Press,” saying: “President Biden in April of 2022 said he wanted President Trump prosecuted and he wanted him out of the race. He repeated that in November of 2022. As a result, President Biden has put in motion a political prosecution in the middle – in the middle of an election season and obviously everything is open to politics.”

We already have written about an unfounded claim, based on comments Biden made in November 2022, that Biden was “coordinating” indictments against Trump.

In a Nov. 9 press conference, a CNN reporter asked Biden a multipart question focusing on what other world leaders should think about Trump potentially becoming president again. In his initial answer, Biden, referring to Trump’s attempts to remain in power despite losing the 2020 election, said the world wants to know if America is “stable” and still an “open democracy” that is “going to accept decisions made by the court, by the Congress, by the government, et cetera.”

In a follow-up question, the reporter asked how Biden would reassure other heads of state “that the former president will not return or that his political movement, which is still very strong, will not once again take power in the United States.” Biden’s response was: “Well, we just have to demonstrate that he will not take power by — if we — if he does run. I’m making sure he, under legitimate efforts of our Constitution, does not become the next president again.”

But that does not mean Biden was saying that he would remove Trump from presidential contention by having him prosecuted, as Lauro implied. “[U]nder legitimate efforts of our Constitution” could simply mean defeating Trump through the electoral process.

We also did not find Biden saying in April 2022 that “he wanted President Trump prosecuted” and “out of the race.” We reached out to Lauro’s law firm about his claim, but have not yet received a response.

It may be that Lauro was referring to something that was reported that month — not something that Biden said at the time.

In an article about the Justice Department’s investigation of the attack on the Capitol, the New York Times wrote that Attorney General Merrick Garland’s handling of the case frustrated Biden’s supporters::

New York Times, April 2, 2022: The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

So, Biden said privately that he thought Trump should be prosecuted for his role in what transpired on Jan. 6, according to anonymous sources. But Biden did not say this directly to Garland, the Times reported.

That is not evidence that “Biden has put in motion a political prosecution … in the middle of an election season,” as Lauro said. Biden has said before that he has not told the Justice Department whom it should charge.

“Look, I made a commitment that I would not in any way interfere with the Justice Department, who they prosecuted, if they prosecuted, how they proceeded,” Biden said in an MSNBC interview in June. “I have not spoken once, not one single time with the attorney general, on any specific case, not once.”

In remarks from Alabama on Aug. 4, Trump complained that the DOJ could have brought charges against him “two and a half years ago” but “waited until I became the dominant force in the polls … dominating everybody, including Biden.”

Perhaps a federal indictment against Trump over his actions on and leading up to Jan. 6, 2021, could have come sooner, if the DOJ had started its investigation before April 2022. The Washington Post reported that a “wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace.”

But that does not show that the timing of the latest indictment was intentional.

For one, Trump is not “dominating” Biden in the polls. The two men are essentially tied, according to a Real Clear Politics average of polls. And Trump has consistently been the Republican front-runner since even before he announced his candidacy in November — which is also when Garland appointed Jack Smith as the special counsel for the investigation into any unlawful interference with the certification of the 2020 Electoral College vote.

In fact, Trump’s poll numbers in the GOP primary have gone up since early April, when the first of three indictments (one state and two federal) were filed against him.

Some viewers may have misunderstood Lauro’s comments to mean Trump can’t run if he’s convicted. But that’s not the case. As we have noted before, a prosecution or conviction does not prevent Trump from running for or serving as president.

Trump previously said he will not drop out of the race, which means voters will ultimately decide if Trump goes on to become the Republican nominee or the next president.

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