“The Jury is Not Going to Believe” Trump’s Defense in the January 6 Trial

Jennifer Taub, a contributing writer for the Washington Monthly and a professor at the Western New England University School of Law, is the author of Big Dirty Money and has written regularly about Donald Trump’s legal woes for this magazine. The Harvard Law School graduate and podcast host has also done interviews with me about the 45^th president’s array of legal troubles. On Tuesday, Jack Smith, the special counsel investigating Trump’s role in both the classified documents affair and the efforts to overturn the 2020 presidential election, stood before the microphones in Washington to outline the just-unsealed grand jury indictment of the 77-year-old ex-president. A couple of hours later, Taub and I exchanged texts, and we spoke early the following day for 40 minutes about the indictment, Trump’s possible defenses, what it says about Smith, and why Taub, who has been sharply critical of Attorney General Merrick Garland’s handling of Trump-related matters, remains so. This Q&A is a fusion of that conversation and subsequent text messages.  

It’s been edited for brevity and clarity.  

MC: What struck you about the indictment? 

JT: Well, the first thing that struck me is that five of the six co-conspirators were attorneys, but actually, perhaps six are. [Note: The New York Times identified the sixth co-conspirator as Boris Epshteyn, an attorney and political consultant.]  

It was not a great day for the legal profession when lawyers were the lead co-conspirators with the president of the United States to deprive us of our right to vote in the worst crime in American history in terms of undermining the Republic since the Civil War. Not great.  

MC: Not great because of their oath? What it says about the profession? 

JT: Not great because I’m a law professor and aspire to help train students to make positive change, not burn it all down. That said, this creates a new opportunity for us. 

After Watergate, professional responsibility as a discipline in law schools was instituted. But we have pressures of the marketplace on the profession which have led to—not just these lawyers—but other lawyers, to take any client if the check is going to clear (and in this case, where the check probably doesn’t clear). [Laughter] I see these co-conspirators as canaries in the coal mine, and it’s time to think about what we do as lawyers to respond. 

MC: The problem was taking him as a client?  

JT: There’s a difference between representing someone after they have committed a crime versus strategizing with someone so they can commit future crimes. This reminds me a lot of when [Accounting and consulting firm] Arthur Andersen got in trouble for shredding documents, although the Supreme Court overturned that conviction on what many see as a technicality. After that, there was a separation through Sarbanes Oxley of doing audits versus doing consulting work. Accounting firms were not supposed to do both the public audit work and the consulting work, even though it was consulting around how to structure transactions that made money. So that’s my first take as someone who teaches white-collar crime. It should go without saying that lawyers shouldn’t be doing the crime-consulting work at all.  

MC: So, it looks like some people flipped, but not the co-conspirators. It seems like they have another chance. 

JT: There’s a debate about whether when someone is missing from the indictment, that means that they flipped or whether there wasn’t enough to charge them. The clearly missing name is [then White House Chief of Staff] Mark Meadows. 

MC: Right? It wouldn’t be a crazy inference to say Meadows talked. 

JT: What also jumps out in the indictment is that there was no seditious conspiracy charge. I think it’s really smart. To deal with a seditious conspiracy, you would have to have evidence that I don’t think exists because that’s not how people like this operate. You need proof to link Donald Trump to people smashing windows and attacking officers with flags directly. 

MC: He won’t be on the phone with the Proud Boys. 

JT: It was beautiful to have the final page of the indictment —maybe unintentionally—where we see Jack Smith’s signature. I just want to read it because I find it so powerful. “Donald J. Trump did knowingly, combine, conspire, confederate and agree with co-conspirators known and unknown to the grand jury to injure, oppress, threaten and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them.” I mean, that’s it. This man who was president and the co-conspirators confederated to take away our right to vote and have our votes count. That’s huge.  

MC: Important to use a statute from Reconstruction to guarantee those rights?  

JT: Confederate is not in the statute. Confederate obviously reminds us of the Confederacy. I had to look it up—because I wasn’t sure precisely what it meant as a verb—and it means to form an alliance. And this is so powerful to me that this was a confederacy, not of Dunces. But this was a confederacy of insurrectionists.  

MC: It’s not spontaneous combustion. It is intent and conspiracy and confederacy. 

JT: “The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” And this is powerful to me. 18 USC 371, the federal conspiracy statute, has two branches. One is a conspiracy to defraud the United States, which is some effort to defeat a lawful function of government. It doesn’t have to involve money. The other is a conspiracy to commit an offense against the United States. So that would be where you layer conspiracy on top of something like wire fraud. 

MC: Yeah. If you try to get many people to falsify the Census, there’s no financial advantage, but it’s still defrauding.  

JT: Conspiracy to defraud in the context of elections—it’s been used before. There’s case law. This is solid. The other thing I would say is after we look at who’s listed, what was new to me is that every time Donald Trump said something false, he was told that’s wrong by an ally and given evidence. He would then repeat it despite that.  

During one of his attempts to browbeat Vice President Mike Pence, he said, “You’re too honest,” I had not seen that. And the second thing I had never seen before was when he had gone to a national security briefing and said something like, “We’re going to give that to the next guy. It’s too late for us.”  

MC: Right. I watch a lot of Fox News because I’m a masochist. Last night the talking point was that even if he was wrong, even if he was told he’d lost, he did continue to believe that he’d won. They’re going try to go at mens rea. 

JT: There’s mens rea in the courtroom, and then there’s mens rea in public. It’s not going to fly in the courtroom because he’s not going to testify. And the jury is just not going to believe it.  

I could say, “I’m carrying this television out of the store, and the alarm at the door is flashing at me. But I actually thought I had bought it.” It doesn’t work. In contract law, there’s something called the objective theory of contract formation. A contract is a promise that’s enforceable by the law. Not all promises are enforceable. You need an offer and acceptance and a bargain for exchange. That’s the theory. But there has to be, what we will often say, a meeting of the minds. You don’t need a lie detector or some kind of MRI to see what a party thinks. We look at the outward manifestations of intent. Words and actions. People defending Trump would say, “Well, look, he kept moving forward. Doesn’t it show that he believed it?” No! It shows that he was told this information. Then he would go to another person who wouldn’t tell him that. It shows stubbornness, a desire not to leave the White House. It doesn’t show the actions of somebody who believed he won. It shows someone who’s trying to convince others. The line, “You’re too honest,” is critical.  

It doesn’t matter whether he was lying or delusional about losing the election. What mattered was that he knew he was lying when he said ‘You’re too honest’ while pressuring Pence to reject or return votes. Enlisting people to engage in the false elector scheme or exploiting the violence at the Capitol to help delay or prevent the certification of the electoral votes—that’s criminal, no matter what he believed. 

MC: Pence. That’s the money shot, as we say. 

JT: Yes. And Mike Pence yesterday sort of floating that statement about no one is above the law. Is he being destroyed over at Fox News? 

MC: They’re kind of sidestepping Pence for now. They’re just they’re hunkered down with Trump as a stubborn guy.  

JT: That’s their bottom, I think, in terms of the public, not the courtroom. This guy lied and lied and lied about sexually assaulting E. Jean Carroll, and not only did he lose in court, but he kept lying about it. I don’t think Trump thinks he didn’t do it. I think Trump thinks if he keeps denying it, enough people will believe him. You know, he made up a fake university. Do we need to go through everything where he’s been proven to be a con artist? I don’t think he believes his con. Con artists don’t believe it but never admit that. 

MC: The other point they’re pushing—and DeSantis echoed this—is that he can’t get a fair trial, so he’ll lose but find vindication maybe in the D.C. Circuit but definitely in the Supreme Court. And we’re heading towards another one of those moments like Bush v. Gore. 

JT: Unlike Bush v. Gore, you can become president, even if you’ve been convicted of this crime. The problem here is Merrick Garland.  

MC: Merrick Garland? 

JT: In March 2021, when Garland was sworn in, he should have appointed a special counsel. There’s almost nothing in this indictment that they would not have had earlier if they had had the special counsel. We could have had an indictment a year ago. This would have been resolved. And then we would not have to have this inside the political cycle. 

MC: Right. In March 2021, Republicans who voted against impeachment said, well, let’s resolve this in the courts.  

JT: Yes. And maybe if Trump knew he was under scrutiny, he wouldn’t have been sharing national secrets after leaving office. Because God knows what harm that’s been done since then, we don’t know.  

That said, Jack Smith was the right guy. You know, with Garland, that’s all water under the bridge, as far as I’m concerned.  

I was giddy when the raid of Mar a Lago happened. It was the first time I felt like Donald Trump was held accountable. But I’m not feeling giddy at all. It’s devastating that he could be elected again. It feels like the violence seeps through the pages. That our country is so desperately divided, it saddens me. 

MC: This will still be on appeal by November of next year. Right?  

JT: All of us can run scenarios of all the terrible things that can happen between now and November 2024. There’s always some surprise, and I just hope there’re some good surprises because where we are heading right now…It’s not The Good Place. 

MC: Right? Because it doesn’t feel like this is taking the air out of this campaign. And 

JT: Yep. I find it embarrassing that a good chunk of Americans support this guy. You know, where are we? How do we have people like Donald Trump and Elon Musk with so much power? Tomorrow’s the arraignment? And the most important thing is that we have cameras in that courtroom because cameras are the only thing that could heal the divide. People need to be able to see that, not if they’re in a house where someone is hell-bent on having it tuned to, you know, Fox News. So, people can judge themselves on what’s happening in that courtroom.  

MC: Let’s see if the judge allows it.  

JT: I like when there’s a question for you. I’ve been chatting this whole time. What is your take? 

MC: I think the only thing that will put this to rest is if Republicans reject him as their nominee, I don’t believe that will happen, so he will never go away. He has to keep running. He’ll be the Harold Stassen of con artists. I share your melancholy about this. This doesn’t feel heroic like John Sirica, Leon Jaworski, or Howard Baker.  

JT: Melancholy is part of this. But then, if something turns around and feels promising, I’ll be clear about it. But yesterday was a hard day. And, you know, we have hard days ahead of us.  

MC: it’s hard to see things you’ve forgotten about, like, “Oh, we can use the Insurrection Act.” 

JT: I feel mourning like I felt on January 7. 

MC: You’re not alone. God forbid, he won again. There’d be no James Mattis, Gary Cohen, or Bill Barr. 

JT: The bar is low.  

MC: …it would be all Mike Flynn and Rudy Giuliani. It wouldn’t just be the Quislings. It would be the crazies.  

JT: This is why I spun off and started that podcast, reading nonfiction books on a range of topics. It allows me not to obsess about the elephant in the room. I mean, some people ignore it. For me, you know, I spend my whole time staring at it. So, I’m trying to look away for a little while. I’m hopeful that there’ll be a turn of events, you know, God in the Machine. 

MC: Inshallah.  

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