Aug 2, 2023 - Politics & Policy

Trump's "delusion" defense

Photo: Robert Nickelsberg/Getty Images

Former President Trump's legal team is teasing a risky defense to his historic third indictment: that Trump genuinely believed his own lies about election fraud — despite being told by dozens of his closest advisers, allies and agencies that they were baseless.

Why it matters: If they proceed to trial, Trump's lawyers effectively could be asking a jury to believe that the former president was delusional — undermining special counsel Jack Smith's core thesis that Trump "knowingly" sought to defraud the country.

  • The gambit could prove successful in court, where an already unfurling debate over the First Amendment is expected to play a starring role.
  • Politically, however, the "delusion defense" would force Republicans into the uncomfortable position of defending a candidate who can't be trusted to distinguish reality from conspiracy — and who now wants to be president again.

Driving the news: The indictment details many occasions in which top officials and lawyers explained to Trump that his theories — ranging from dead people voting to machines altering votes to foreign interference — were baseless.

  • As official campaign staffers grew frustrated, Trump increasingly began listening to conspiracy theorists such as Sidney Powell, whose attorneys said in response to a 2021 defamation lawsuit that "no reasonable person" would believe her bizarre claims were "truly statements of fact."
  • "I'll obviously hustle to help on all fronts, but it's tough to own any of this when it's all just conspiracy sh*t beamed down from the mothership," a senior campaign official — who repeatedly told Trump his claims were untrue — wrote in an email on Dec. 8, 2020.
  • Even Trump, the indictment alleges, privately acknowledged in December that Powell's claims about voting machine conspiracies sounded "crazy."

What they're saying: "I would like [prosecutors] to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false," Trump attorney John Lauro said on Fox News last night.

  • "No sitting president has ever been criminally charged for his views, for taking a position," he added.

What to watch: Citing the subpoena power that Trump's lawyers will be entitled to in the discovery process, Lauro pledged to "re-litigate every single issue in the 2020 election."

  • In other words, the Trump team may use his criminal trial to once again try to prove there was election fraud — and thereby de-fang Smith's charges.
  • Remember: More than 60 election lawsuits brought by Trump and his allies were tossed out of court in the weeks after the election.

The bottom line: The House Jan. 6 committee hearings last summer gave Republicans a taste of the coming spectacle in federal court. The subsequent defeat of Trump-backed election deniers in the midterms likely has GOP leaders once again bracing for impact.

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