Charges against Georgia: how will Trump defend himself? Will it work?

[1/4]Former U.S. President and Republican presidential candidate Donald Trump salutes the crowd during a campaign rally in Windham, New Hampshire, U.S. August 8, 2023. REUTERS/Reba Saldanha LICENSING RIGHTS

August 15 (Reuters) – Donald Trump is likely to claim that his right to free speech and genuine concerns about voter fraud shield him from accusations that he pressured Georgian officials to change the results of the 2020 election in his favour.

But legal experts say the case appears to be a pure fraud prosecution, which is about whether Trump knowingly broke the law, regardless of whether he believed his actions were justified.

“Even if he thought he had the right to do what he did, that doesn’t justify fraudulent activity,” said former federal prosecutor E. Danya Perry. “If you believe money in someone else’s bank account is rightfully yours, that doesn’t mean you can embezzle it.”

Trump, US President from 2017 to 2021 and the front-runner for the 2024 Republican presidential nomination, was impeached Monday for the fourth time in nearly five months. Georgia state prosecutors allege he and 18 co-defendants conspired to illegally alter the results of the 2020 election he lost to Democrat Joe Biden.

Fulton County District Attorney Fani Willis has charged Trump and his co-defendants with 41 felonies.

Trump himself faces 13 counts, including racketeering, false testimony and asking an official to break his oath.

Trump has denied wrongdoing. In a statement ahead of the indictment’s release, his campaign team accused Willis of being a “rabid partisan” trying to undermine his re-election.

“It is a dangerous attempt by the ruling class to suppress popular choice,” the statement said.

Trump’s lawyers are likely to argue that his effort to change the election results was protected speech under the US Constitution’s First Amendment.

However, the First Amendment does not protect against fraud, and many conspiracy cases involve speech crimes such as extortion, bribery and solicitation.

“These are all ‘word crimes,’ and word crimes can be just as serious as physical crimes,” said Bennett Gershman, a law professor and former Pace University prosecutor.

Trump might be better off arguing that he didn’t know he broke the law and therefore lacked the criminal intent required for a conviction, legal experts said.

He would only need one juror who refused to get a mistrial.

To that end, Trump’s lawyers could claim he was impeached on political grounds by Willis, an elected Democrat, and argue that her use of a blackmail law originally aimed at mob bosses was excessive.

However, defendants rarely assert themselves with such selective arguments.

Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) law is broad, and courts have upheld its use in a variety of contexts, including prosecuting teachers who falsified standardized test scores.

Trump’s lawyers must exercise caution when citing his conspiracy theories to support their arguments, legal experts said, because false allegations in court could have serious consequences.

“Lawyers have to be very careful because if their arguments aren’t based on evidence, they can be sanctioned,” Gershman said. “Many of the lawyers who made wild claims in court after the 2020 election were disciplined because they had no evidence.”

reporting from Jack Queen in New York; Edited by Noeleen Walder and Howard Goller

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