Former President Donald Trump attorney John Lauro sees at least one silver lining in the Department of Justice’s latest indictment of his client: Trump will get to litigate why he believes the 2020 presidential election was fraudulent.
“In 2020 Mr. Trump’s campaign had a few weeks to gear up and present evidence, and it was very difficult,” Lauro told Fox News host Bret Baier Tuesday night after special counsel Jack Smith announced the 45th president was being indicted in relation to his questioning of the integrity of the 2020 election.
“We now have the ability in this case to issue our own subpoenas, and we will re-litigate every single issue in the 2020 election in the context of this litigation,” Lauro added. “It gives President Trump an opportunity that he has never had before, which is to have subpoena power since January 6 in a way that can be exercised in federal court.”
In his latest indictment, Smith charges Trump with four crimes: 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.
Trump created “widespread mistrust” in his attempt to “overturn the legitimate results of the 2020 election,” Smith alleged.
Further, the former president knew that his allegations of election fraud were false when he made them, the special counsel added.
Lauro refuted that Trump knowingly made false statements about the election, but even if he did, it is still protected free speech under the First Amendment.
“It’s not just issues of fraud. It’s also the fact that procedures were changed, undeniably so, that procedures at the state level were changed without the ability of the legislature to weigh in,” Lauro explained.
Trump’s intention on Jan. 6, 2021, was to pressure Congress not to certify the Electoral College vote, so the state legislatures could have one last chance to review and weigh in on how the elections in their states had been conducted.
“The reality is that the state legislatures in every state have the ultimate responsibility for qualifying electors. So what Mr. Trump did was exactly, constitutionally precise and in order. There was nothing illegal about that,” Lauro argued.
Article II, section 1, clause 2 of the Constitution provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
Trump “was required to take steps, as president of the United States, to ensure that that election was held in a valid way,” Lauro said. “All of that, now, is being criminalized.”
Baier countered Lauro’s assertions, saying, “The states did that. Each individual state certified the elections. They were signed by the governors — many of them Republican governors, and many of them Republican secretaries of state, that signed off and certified those election results before they came to Washington, D.C., and we had what was January 6.”
“So what you’re talking about was done. It was certified,” Baier reiterated.
Trump and the Republicans were not challenging election results in all 50 states, but swing states that flipped from Trump wins in 2016 to Democrat Joe Biden victories in 2020.
Of those states, only Georgia had a Republican governor and secretary of state. Pennsylvania, Michigan and Wisconsin all had Democrats in both those positions. Further, while Arizona had a Republican governor, the secretary of state overseeing the election was a Democrat.
Lauro concluded, “It’s never been presented to the states. Now what we’re going to have is, not just a civil trial, but a criminal trial exercising his right to speech.”
The state of Texas filed a lawsuit at the U.S. Supreme Court in December 2020 against Pennsylvania, Georgia, Michigan and Wisconsin, accusing state officials of not following election laws.
The complaint said that officials “usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes. They accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”
In Pennsylvania, the Democrat-controlled state Supreme Court allowed drop boxes to be deployed in the Keystone State for the 2020 general election and ruled that absentee ballots did not require signature verification and could arrive up to three days after the election.
NPR reported at the time that these decisions were “likely to help Democrats.”
Absentee ballots played a decisive role in Biden’s victory in Pennsylvania. Trump’s 600,000-vote lead in the state the morning after the election dwindled and eventually disappeared in the following days as absentee votes continued to be counted.
In 2022, the Wisconsin Supreme Court ruled the use of absentee ballot drop boxes that occurred in 2020 was illegal and banned their use going forward.
In Michigan, Democrat Secretary of State Joycelyn Benson sent “unsolicited absentee-voter ballot applications by mail to all 7.7 million registered Michigan voters prior to the primary and general elections” in violation of state law that set the procedure for applying for an absentee ballot, Texas alleged in its suit.
Lauro noted some of these actions in a CNN Tuesday interview, saying there were changes made in requirements for absentee ballot voter identification and that unsupervised ballot drop-off boxes were permitted.
Fake News CNN gets smacked down! CNN doesn’t seem to understand how the First Amendment works. CNN apparently thinks President Trump isn’t allowed to have free speech. pic.twitter.com/ZhPOWTBzgg
— MAGA War Room (@MAGAIncWarRoom) August 2, 2023
The U.S. Supreme Court ultimately dismissed Texas’ case, concluding that the Lone Star State lacked standing to sue over how Pennsylvania and other states conducted their elections.