If former President Donald Trump committed a “technical violation of the Constitution,” it doesn’t mean he necessarily broke any criminal laws, John Lauro, Trump’s criminal defense attorney, argued Sunday on NBC’s “Meet the Press."
Lauro appeared to signal how he’d defend the former president in a trial that will stem from the four-count criminal indictment returned last week by a federal grand jury that had been examining Trump’s possible role in the Jan. 6, 2021, Capitol riot and his alleged attempts to overturn the 2020 election.
Pressed by NBC's Chuck Todd about Trump's alleged pressure campaign to get former Vice President Mike Pence to reverse the election, Lauro claimed that Trump and Pence had merely disagreed over whether a vice president could constitutionally take actions that could lead to a presidential election’s being overturned.
“A technical violation of the Constitution is not a violation of criminal law," Lauro contended, saying it was "just plain wrong" to suggest that Trump had pressed Pence to break the law.
"And to say that is contrary to decades of legal statutes,” he continued.
“These kinds of constitutional and statutory disagreements don’t lead to criminal charges," Lauro said. "And one thing that Mr. Pence has never said is that he thought President Trump was acting criminally."
In response to the latest indictment, Pence said he believes "that anyone who puts himself over the Constitution should never be president of the United States." He said Wednesday that Trump surrounded himself after the 2020 election with “crackpot lawyers” who told him only what his “itching ears” wanted to hear.
“I was fully prepared to make sure that we heard all the arguments and concerns the members of Congress had brought," Pence said. "But because of the riot and because of — because of the assertion by the president and his crackpot lawyers that I could overturn the election, the violence that ensued eclipsed all of that."
Pence elaborated on the subject Sunday, saying on CBS News' "Face the Nation" that Trump, "from sometime in the middle of December" 2020 "began to be told that I had some authority to reject or return votes back to the states."
"I had no such authority," Pence said. "No vice president in American history had ever asserted that authority, and no one ever should."
In a follow-up email to NBC News, Lauro said he "never said that President Trump committed a technical violation."
Further previewing his defense, Lauro argued that Trump did nothing criminal because Trump believed that he’d won the 2020 election and that the charges against him were a violation of his First Amendment rights to express that opinion.
“Trump believed in his heart of hearts that he had won that election, and, as any American citizen, he had a right to speak out under the First Amendment,” Lauro said.
The indictment acknowledges Trump’s right under the First Amendment to “speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” He was also “entitled to formally challenge the results of the election through lawful and appropriate means,” the indictment says, including through recounts and lawsuits.
But it accuses Trump of going further and taking part in three criminal conspiracies: “to defraud the United States by using dishonesty, fraud and deceit” to obstruct the electoral vote process; to “impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified”; and to conspire “against the right to vote and to have that vote counted.”
The allegation that Trump used “dishonesty, fraud, and deceit” to subvert the election with “pervasive and destabilizing lies about election fraud” came after a sprawling investigation in which dozens of White House aides and advisers ranging in seniority up to Pence testified.
The indictment cited contemporaneous notes Pence took about meetings in which Trump pushed him to reject the Electoral College votes in multiple states.
Democrats immediately pounced on Lauro’s argument.
Rep. Jamie Raskin, D-Md., a member of the Jan. 6 committee who was lead manager in Trump's second impeachment trial, slammed Lauro’s argument as “deranged” and “a grievous constitutional defense" in a separate interview Sunday on "Meet the Press."
“First of all, a technical violation of the Constitution is a violation of the Constitution. The Constitution in six different places opposes insurrection,” Raskin said.
“Our Constitution is designed to stop people from trying to overthrow elections and trying to overthrow the government,” he continued.
“He conspired to defraud the American people out of our right to an honest election by substituting the real legal process we have under federal and state law with counterfeit electors,” Raskin said. “There are people in jail for several years for counterfeiting one vote, if they try to vote illegally once. He tried to steal the entire election.
“That is a deranged argument,” Raskin said of Lauro’s comments.
At least one prominent Republican said Sunday that the charges didn't violate Trump’s free speech rights.
“It’s certainly a challenging case, but I don’t think it runs afoul of the First Amendment,” William Barr, who was Trump's attorney general, said on "Face the Nation." "From a prosecutor’s standpoint, I think it’s a legitimate case."
Trump's actions, Barr said, went far beyond just expressing his opinion about the 2020 election.
“This involved a situation where the states had already made the official and authoritative determination as to who won in those states and they sent the votes and certified them to Congress,” he said. “The allegation, essentially, by the government is that at that point, the president conspired, entered into a plan, a scheme, that involved a lot of deceit, the object of which was to erase those votes, to nullify those lawful votes.”
Meanwhile, Trump said Sunday he'd seek a recusal for the judge assigned to his case, as well as a change of venue for a future trial, alleging that both the judge and the current trial location of Washington, D.C., would be unfair to him.
"There is no way I can get a fair trial with the judge 'assigned' to the ridiculous freedom of speech/fair elections case," Trump wrote in an all-capitalized post on his Truth Social platform. "We will be immediately asking for recusal of this judge on very powerful grounds, and likewise for venue change."