How to Debunk Trump's Indictment Defenses

Trump and his allies are flooding the zone with BS to confuse and exasperate a weary public

We are only a few days into Trump’s third indictment, and the Right Wing disinformation machine is in overdrive. Republican politicians, Fox News personalities, and MAGA media influencers are peddling lies and conspiracy theories about Trump’s alleged crimes. This is part of a pattern. It’s how the Right responds to every Trumpian misdeed. Their arguments are conflicting and incoherent, but that’s a feature, not a bug, of their strategy. Several years ago, Steve Bannon explained this approach in a now-infamous interview with journalist Michael Lewis. Here’s the key quote:

The Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with shit.

In other words, use the Right Wing propaganda machine and exploit the traditional media’s worst habits. Spew so much B.S. that a naturally cynical and distrustful public will give up, tune out, and assume everyone involved is a corrupt SOB. Bannon understood the media’s compulsion to repeat the Right Wing’s arguments. He knew most would have neither the courage nor credibility to debunk them effectively. Flooding the zone with shit has been a highly successful strategy for Trump in the past, and the early days suggest it will be again.

Most of the shit flooding the zone is fever swamp nonsense, but some of the arguments are bleeding into mainstream conversations. Here are my thoughts on the best way to push back on the pro-Trump arguments in conversations with your MAGA-curious and Biden-skeptical family and friends.

1. “It’s Not a Crime Because Trump Believed the Big Lie”

Trump’s attorneys, defenders, and even traditional media outlets repeatedly claim that Trump’s efforts to overturn the election were not criminal because Trump sincerely believed that the election was stolen from him.

As Judd Legum wrote in Popular Information:

Trump's lead attorney on the case, John Lauro, immediately appeared on Fox News and laid out his defense strategy. Lauro said that special prosecutor Jack Smith and his associates would be required to "prove beyond a reasonable doubt that Donald Trump believed that these allegations were false."

On paper, this argument makes for a compelling legal defense. How can we prove someone’s state of mind beyond a reasonable doubt? Based on what we know about Trump, it is plausible that he believed all of the crazy conspiracy theories about the election and was immune to any and all of the factual rebuttals. Proving that Donald Trump is dumb enough to believe the delusional ramblings of Rudy Giuliani and Sidney Powell is easy even for Trump’s Bob Loblaw-quality legal team.

There are two problems. First, the January 6th Committee and the Jack Smith indictment provided mountains of evidence that Trump knew he lost the election. Perhaps the most notable and damning piece of evidence is that on January 1, 2021 Trump told Mike Pence, “You’re too honest,” when Pence refused to cooperate with his plan to reject the Electoral Votes. The second problem: even if Trump believed to his core that the election was stolen from him, it doesn’t really matter in terms of the law. If I sincerely but incorrectly believe that my neighbor stole $1000 from me, I cannot sneak into their house and steal items worth the same amount. There is a legal process to resolve conflicts. I can sue my neighbor and have a court render judgment on my claim. I can call the cops and report a robbery and ask them to investigate. I absolutely cannot sneak into their house and steal $1000. That is breaking and entering and theft. It’s a crime. Trump availed himself of the legal processes for resolving electoral disputes — recounts, lawsuits, and audits. When those did not produce the result he wanted, Trump then engaged in a series of illegal acts to stay in office. I can’t believe I have to say this, but being dumb is not a legal justification to commit crimes.

2. “Biden is Weaponizing the Government”

The main talking point for the Republicans is that the Biden Administration “weaponized” the government to persecute his political opponents — namely Donald Trump. This is the message that even Trump’s political opponents employed. It implies that what Trump did on January 6th may not have been great, but the Biden Administration is utilizing the government to persecute its adversaries.

It’s understandable why this talking point is compelling to so many people. A leading presidential candidate has never before been prosecuted by people working for their opponent. Trump is getting indicted every other month at this point. Of course, Trump’s criminality is unprecedented, necessitating an unprecedented response.

The fundamental flaw in the weaponization argument can be found in the above tweet from Tim Scott. If Joe Biden is weaponizing the government, why would his Department of Justice be aggressively investigating his own son for a wide range of possible illegal activities?

Republicans have tried to square this circle by claiming that the Hunter Biden investigation has been interfered with or that the plea agreement was a sweetheart deal. However, the investigation into Hunter Biden was started in the Trump Administration and spearheaded by David Weiss, an attorney appointed by Trump. When Biden won the presidency, he could have replaced Weiss, but instead kept him on and allowed him to continue investigating Hunter without interference. At no point has Weiss complained of interference from President Biden, Attorney General Garland or anyone else. If such interference occurred, Weiss would have every incentive and a receptive audience in the Republican House to voice his concerns.

The plea deal that so enraged Republicans was negotiated by Weiss and Weiss alone. I am confident that if Trump was willing to plead guilty to some of the federal crimes for which he has been indicted, Special Counsel Jack Smith would happily offer Trump lighter sentences in exchange.

3. “They Are Criminalizing Free Speech”

Republicans somehow managed to go on a nationwide spree of banning books and boycotting corporations for expressing opinions AND paint themselves as free speech warriors under assault from censorious Big Tech companies and Cancel Culture Liberal elites. The Right is extending that disingenuous argument to justify Trump’s efforts to overturn the election. Here’s what Trump attorney John Lauro said in an interview on CBS (via the New York Times):

The First Amendment protects President Trump in this way: After 2020, he saw all these irregularities, he got affidavits from around the country, sworn testimony, he saw the rules being changed in the middle of the election process — as a president, he’s entitled to speak on those issues.

What the government would have to prove in this case, beyond a reasonable doubt, is that speech is not protected by the First Amendment, and they’ll never be able to do that.

Trump is not being prosecuted for spreading lies about the election. If he had done nothing more than claim the election was stolen or pushed conspiracy theories about Dominion Voting Systems, he would not be under indictment right now. He allegedly used those lies as the predicate to engage in a set of specific criminal conspiracies with a number of individuals. These crimes include working to establish a set of fake electors to be sent to Congress and working to stop Congress from certifying the results of the election.

Don’t take my word for it. Here’s what former Trump Attorney General Bill Barr said to CNN’s Kaitlan Collins:

He can say whatever he wants. He can even lie. He can even tell people that the election was stolen, when he knew better. But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech. So, free speech doesn't give you the right to engage in a fraudulent conspiracy

Trump is being prosecuted not for what he said, but for what he did.

Given the huge Republican media advantage and the failures of much of the traditional media, it is up to all of us to push back on the flood of lies coming from Trump and his allies.