John Donvan

This is Open to Debate. I’m John Donvan. Hi, everybody. There is going to be a trial in Washington, DC, expected to start this year, but we’ll see on that. The defendant, Donald Trump. Now, while the former president is currently involved in several different court proceedings, this one is the federal case, charging him with various kinds of interference in the 2020 election, culminating, it is alleged, with an attempt to block the election certification three years ago this week, on January 6th, the day the US Capitol was invaded by his supporters. Our system presumes that Donald Trump is innocent. It is up to lawyers for the Department of Justice to argue otherwise, and he will of course have lawyers arguing his side.

John Donvan

It’s those arguments we want to focus on today, since thoughtful argument is our mission here at Open to Debate. But for this one, we’re coming up with a new format, new for us at least, to present something that we’re calling a mock trial. In this case, we have asked two attorneys to assume the roles of Trump prosecution and Trump defense, and to play out for us how they would make their cases. I want to be clear, our two guests are participating not because they themselves are either fans or critics of Donald Trump. They are doing it to give us some insight into the process to come, so that we can see what laws, and principles, and strategies may come into play and what is legally possible, and perhaps even probable. In short, they’ll be doing what trial lawyers do, making the best case professionally, for their respective clients, who are, for our purposes, what the indictment says literally, the United States v. Donald Trump.

John Donvan

And we would like you to consider yourselves the jury in this proceeding, so we are counting on you to listen closely, and right now to recall the charges brought against the former president. There are four of them, as follows. Count one, in violation of Title 18 of United States Code Section 371, conspiracy to defraud the United States, which focuses on alleged false claims concerning the election’s outcome and attempts to alter it. Count two, in violation of Title 18 of United States Code Subsection 1512(k), conspiracy to obstruct an official proceeding. Count three, in violation of Title 18 of United States Code Section 1512(c)(2) and

2), obstruction of and attempt to obstruct an official proceeding. Those two counts both refer to events on January 6th and a conspiracy to carry out such obstruction. And count four, in violation of Title 18 of United States Code Section 241, conspiracy against rights, specifically the right to vote and to have your votes counted. These four original indictment charges are the focus of our mock trial.

John Donvan

So, to get this trial started, let’s metaphorically all rise, and after that, let’s meet the prosecution and the defense. I want to welcome first Lanny Davis. Uh, Lanny is an attorney with the firm under his own name, and he practices crisis management. He’s a former presidential advisor. He has graciously agreed to participate and to take on the role of prosecution. Lanny, welcome. You are no stranger to high pressure, are you?

Lanny Davis

(laughs) Thank you. Not really. Thank you.

John Donvan

(laughs) Not a- not at all. And also here with us, arguing for the defense in our mock trial, is Sara Azari. Sara is a criminal defense attorney and legal analys- analyst for News Nation, as well as a published author and cohost of The Presumption. That’s her weekly crime podcast that you can check out wherever you get your podcasts, and on YouTube. Sara, welcome. I’m betting your work on your podcast has prepared you well for today.

Sara Azari

Thanks, John. Or, this will make for a better podcast episode-

Lanny Davis

(laughs).

Sara Azari

… in the future.

John Donvan

(laughs) All right, let’s hope so. That, that would be great. Well, before we start, I, I would just like to get a sense of what motivates both of you to come on the show and argue a mock trial for us. Lanny, I want to start with you. Now, without getting into your arguments, tell us why did you agree to be in a mock trial about this issue and January 6th?

Lanny Davis

Well, first, it’s easy to be a pundit and just engage in rhetoric and politics, which I’ve done through the years, but being a lawyer means you have to focus on facts and you have to be believable to a jury, and as the government, beyond a reasonable doubt, so that was a challenge, and I welcome it.

John Donvan

And Sara, same question to you. Why did you say yes when we invited you to come on and argue the defense?

Sara Azari

Eagerly, for two reasons. For two decades, I have fought for the presumption of innocence, and I believe that while no man is above the law, every man, including the president, is to be presumed innocent. And second, as a media legal analyst, um, I enjoy breaking down complex indictments and legal issues and making them more digestible, which is my hope today.

John Donvan

And Lanny and, and Sara, f- for both of you, I think what we really appreciate is that you, you see this as a teaching role today, the, what we’re doing here. Don’t you, Lanny?

Lanny Davis

I think it’s a public service, especially for people that are critics of Mr. Trump, to remember what Sara just said. Our system presumes Mr. Trump is an innocent person today, until a jury of his peers finds him guilty beyond a reasonable doubt. That’s the most important lesson anyone who’s a critic of Mr. Trump has to remember.

John Donvan

All right. I want to thank both of you again for participating, and for trying to reach those very goals for us. So, I want to get onto our opening statements, and again, for you, our a- audience, we are asking you to be essentially serving as the jury and to listen closely. Lanny, um, you are the prosecution. You get to go first, your opening argument. As you address the jury, the floor is yours.

Lanny Davis

Ladies and gentlemen of the jury, we, the US government, must prove that Mr. Trump lied when he claimed he lost the presidential election because of voter fraud, and that lie was a key part of his criminal conspiracy to obstruct the election of Joe Biden under our Constitution. The law says you must reach that conclusion beyond a reasonable doubt, but that does not require certainty. You will hear testimony that Mr. Trump admitted to key witnesses that he knew he had lost, but you don’t have to depend on that testimony to decide he lied. The Supreme Court ruled that when someone denies facts in plain sight, you can conclude beyond a reasonable doubt that he is being, quote, “willfully blind,” and he is lying. In other words, when he sees a black wall and repeatedly calls it white, you can conclude he’s lying.

Lanny Davis

Here are facts that even Mr. Trump cannot deny, that prove his willful blindness and his lies. Fact, Mr. Trump was repeatedly told he had not lost because of voter fraud by his own attorney general of the United States, his own top Justice Department officials, his own top White House officials, his own director of central intelligence. Fact, 61 out of 61 state court judges rejected Mr. Trump’s claims and ruled he had not lost their states because of voter fraud. Fact, every one of the top state officials in charge of vote counting in the key states told Mr. Trump the same thing. Fact, on December 7, 2- 2020, the Georgia secretary of state announced that after three official vote recounts, Mr. Biden had won the State of Georgia by 11,779 votes. Yet just few weeks later, after Mr. Trump knew the exact margin of Mr. Biden’s victory in Georgia, as stated by the secretary of state after three recounts, he called the secretary of state and he said on tape, quote, “I just want you to find 11,780 votes,” just one vote higher. You know that number was no coincidence. Mr. Trump just made it up. He was lying.

Lanny Davis

You will hear Mr. Trump’s defense attorney claim that it’s okay for him to lie in the commission of a crime if he spoke it out loud, because the protection under the First Amendment’s right to free speech. That’s just plain legally wrong. You’ll also hear the same argument that it’s okay for him to be part of a criminal scheme if his lawyer said it’s okay. That’s also legally wrong. So after hearing all of the evidence, you can conclude beyond a reasonable doubt that Mr. Trump lied about voter fraud costing him the election as part of his criminal scheme to obstruct the honest counting of votes to declare Mr. Biden the victor. Your verdict will not only uphold our Constitution. It will prove the bedrock principle of our republic, since it was founded 235 years ago. No person is above the law, including a former president. Thank you.

John Donvan

Thank you, Lanny Davis for the prosecution, and now we want to hear from the defense table. Sara Azari, the floor is yours.

Sara Azari

Good morning, ladies and gentlemen of the jury. This case is simple. The evidence will show that President Trump genuinely believed there were election irregularities and fraud, and that he genuinely wanted these irregularities thoroughly investigated, but what the evidence will not show is far more important, that beyond a reasonable doubt, President Trump actually knew that he was committing a crime, actually knew he was completely and totally wrong to look into election irregularities, and that by asking for an investigation, he actually intended to commit a crime. You will not hear any actual evidence of intent whatsoever.

Sara Azari

As you listen to the evidence, use your common sense, and ask yourself, are there any statements by him that he knew what he was doing was wrong, any emails acknowledging it was a scam, any texts, private messages, anything showing he was lying, any witnesses who say they heard him acknowledge he was perpetrating some sort of a, a fraud or scam. The government has no evidence of intent, so they claim willful blindness. You know what that is? That is the government admitting to you, ladies and gentlemen, that it cannot meet its burden beyond a reasonable doubt as to intent. You must remember that the government must prove every single part of its case beyond a reasonable doubt. We, the defense, don’t have to do a thing. It is entirely the government’s burden, responsibility, and its job to prove to you, beyond a reasonable doubt, that President Trump acted with criminal intent, and they simply cannot do that.

Sara Azari

But there are more reasons why the government’s case will fail. The evidence shows that every step of the way, my client relied on the advice of his renowned constitutional lawyers and election experts, and that what the government calls a quote-unquote “fake election scheme” is in fact a very legal and constitutional process that has been used in not one, but two contested US elections. If it’s never been a crime before, it is not a crime now. The evidence will show that President Trump’s actions are protected by immunity. The government cannot prove beyond a reasonable doubt that then sitting President Trump somehow acted outside the scope of his protected duties and wasn’t immune. And lastly, the evidence will show that President Trump’s actions and words were political speech at the very core of the First Amendment protections. Political speech is protected speech, and it is certainly not a crime.

Sara Azari

I will leave you with this important reminder. This case is not about whether you like my client, his politics, or what he did following the 2020 election. You have to set aside all of those thoughts and feelings and focus on only one thing, ladies and gentlemen. Can the government prove its case to you beyond a reasonable doubt as to each and every element of each and every count? They simply cannot, and that leaves you with only one choice, after you deliberate, to return a verdict of not guilty for Donald J. Trump. Thank you very much.

John Donvan

Thank you, Sara. So, we have heard both the prosecution and the defense. As the conversation continues, we’re going to give you each a chance to rebut one another. Later in the program, we’re going to bring in some legal experts who are going to further the conversation, in a sense acting as cross-examiners of the two arguments that each of you is making, but right now, we are going to take a brief recess. Our question, again, in this mock trial, is Trump guilty in the January 6th case? We’ll be right back with more Open to Debate. I’m John Donvan.

John Donvan

Welcome back to Open to Debate. I’m John Donvan. We are in the middle of a program that is a little bit different from our typical format. Uh, this time, we’re doing a mock trial, specifically a mock trial looking at, uh, President Trump’s impending January 6th case. We have with us two attorneys who have laid out arguments for Trump’s guilt and also for his innocence, Lanny Davis arguing for the prosecution and Sara Azari arguing for the defense. Uh, Lanny’s making the case that it is clear that the president knew that what he was doing was a lie, that he understood that he had lost the election, and therefore to proceed as if the opposite were true at any point signals lying and signals criminal intent. Uh, he points out that the, uh, that, that, that you, the jury, can actually quite reasonably reach the conclusion that he was lying because it’s a matter of common sense. As he said, the wall is black when the wall is black.

John Donvan

Now, on Sara’s side, on the defense, she says there basically is no case for the prosecution. She says that Trump believed all along that in fact he had, uh, wrongfully lost the election, that in fact he had won the election, and that he wanted those things investigated. Uh, he says the government has no evidence of, uh, of malicious intent. There’s no texts, no emails that, in which, uh, he himself actually presents a smoking gun. Um, basically, she says as the defense, they don’t have to do a thing, because of the system presumes the president’s innocence, but she also makes some other cases as well, uh, that the president relied on the advice of his lawyers, that he was following a process to investigate and challenge that is, is legal and, and allowed. F- Also, that he is protected by immunity, and finally, that everything he did is protected by the First Amendment, because he has the right to free speech.

John Donvan

So, I want to first go to the issue of criminal intent, and I’ll start, though, by going to you, Lanny. You, you made that case that it was clear, absolutely, the president knew that he was lying. You heard Sara’s response to those, that there’s actually really no evidence for it, so what is your response to Sara’s response?

Lanny Davis

Well first, there are going to be several witnesses who will testify under oath that Mr. Trump said to them he knew he had lost, so I respectfully disagree with my distinguished defense counsel, but I’m not relying, and not asking the jury to rely, on that testimony. I am saying what the Supreme Court said by an eight to one decision in 2011, that if somebody sees a black wall and calls it white, and is willfully blind to the facts, that person can be deemed guilty beyond a reasonable doubt, because he’s being willfully blind. When his own attorney general, all his Justice Department officials, all the White House counsel, and what the learned counsel didn’t address, 61 out of 61 state judges, who he brought cases to, to argue that there was voter fraud that cost him the election in those states. 61 out of 61 said no, there was no voter fraud, so being blind to what everybody tells you without having a single fact to justify your position can, by a reasonable doubt, lead to the conclusion you’re lying.

John Donvan

Sara?

Sara Azari

Look, uh, as lawyers, and Mr. Davis knows this very well, the way that we challenge the credibility of what a, a defendant or witness is saying is through whether or not their statements are consistent. President Trump consistently, repeatedly, publicly, and privately said there were election irregularities and that they need to be investigated. That sort of consistency is a sign of authenticity, not fraud. Elections are very complex, so if we’re going to start talking pa- you know, color palette, I’ll indulge, but we’re talking about different shades. President Trump was in the middle of a tossup. He had government officials telling him, “This wall is teal,” and he had his own advisors, who were constitutional lawyers and scholars, deans of law schools, people with actual experience in the Bush v. Gore, um, or Gore v- sorry, Gore v. Bush, election, that, that were saying, “No, it’s actually kind of aquamarine.” He chose to believe his own advisors.

Sara Azari

And so, to that extent, I don’t think that is at all proof beyond a reasonable doubt that there was only one way to see this, and if he went to witnesses and said, “I lost the election,” that doesn’t say that he also feels that he lost the election wrongfully. I- i- in, in other words, it’s one thing to say, “I lost the election,” but when you go further and explore his other representations about how he lost, it’s that he lost by fraud. He lost by irregularity. And that’s what matters here.

John Donvan

Lanny, I’m, I’m not here as a judge, but I want to ask you something that a judge might ask you at this point, in terms of trying to get to the president’s state of mind. I’m citing a case, um, called, uh, Greenwald v. The United States, in which the judgment has, I’m quoting from it, “For every conspiracy is, by its very nature, secret, a case can hardly be supposed where men concert together for crime and then advertise their purpose to the world.” So, given the public nature of the things he was doing, how can this qualify as a conspiracy, if a conspiracy is presumed to be something done secretly?

Lanny Davis

Well first of all, you can conspire to commit murder and announce it on, on radio and television, and you can still be found guilty of conspiracy to commit murder. Just because you announce a crime doesn’t mean you can’t be prosecuted. But the facts are, and they will be presented at trial, is there was much not known, not announced publicly. He didn’t announce that in November and December, he and a group of people met in the White House and decided, secretly, we didn’t know this, to put up fake electoral sites and bring them to Washington to contest Joe Biden’s election without a shred of evidence that there was voter fraud that cost him the election. And how do I know not a shred of evidence? Because 61 out of 61 state judges said so on the record, many of them Republicans, so there was a secret conspiracy, conversations about the fake electors, that will be presented at trial, that was not publicly known.

John Donvan

And Sara, the point Lanny making right there, that the president was told again and again and again, and including by those 61 court cases, all but one of them, that there was not a shred of evidence for him to continue to pursue his argument that he had won the election and been cheated.

Sara Azari

President and his advisors still believe that there were irregularities and that, that they should have been investigated. Um, one of the issues is, but, when these came-

John Donvan

Let me… Can I just stop you there? But, but, but to the degree that it would have turned the election around after 60 allegations were investigated and found wanting in terms of actual evidence?

Sara Azari

I’m not challenging 60 judges’ rulings, although judges can also be wrong, and I’m not saying 60 judges were wrong, but at the end of the day, that doesn’t necessarily give Mr. Trump… put intent in his head, because he’s think… He’s looking at this in disbelief. He’s going, “How could possibly something so complex, with irregularities across 50 states, multiple witnesses, different voting systems, millions of votes, be so hastily, and quickly, and swiftly ruled on, and just brushed off, and said, ‘Oh, there’s nothing wrong here’? And so how could these judges, and Attorney General Barr, in like just two weeks, you know? It takes longer to comply with a subpoena than that. Just come to me and say, ‘Nah, everything’s good. You have nothing to worry about. There was no election fraud’?” Donald Trump was in disbelief, and so as h- it’s human nature, John, that our, our, our thoughts and beliefs are genuinely that it’s set of fact A not B. We’re going to tend to lean towards the advice of those who are telling us, “Yeah, it’s set of fact A, not B.”

John Donvan

So, Lanny, what I, I hear Sara saying is that to, to the end, to this day, the president may sincerel- Or, uh, she is saying he does sincerely believe that he was cheated out of that election, and wh- which, which challenges your argument that he knew all, he knew all along that he was, that he was cheating himself.

Lanny Davis

So I’m leaving it up to the common sense of the jury, and it will be up-

Sara Azari

Me too.

Lanny Davis

… to them to decide-

Sara Azari

(laughs).

Lanny Davis

… and we, S- Sara and I agree on that, but I do want to remind my defense counselor colleague that I used 61 out of 61 because the one judge in Pennsylvania did find there was some voter fraud, but not enough to change the election, and many of those judges challenged Mr. Trump to state one fact showing enough voter fraud to change the results of the presidential election. He never stated a single fact during those 61 court cases, and to this day, he has not stated a single fact. Donald Trump knew he was lying, committed a fraudulent conspiracy to steal the election from Joe Biden, and to this very day, he’s never cited a single case, a single fact, to show that he had enough fraudulent votes, proven to change the results of the 2020 election.

John Donvan

Okay, Lanny. I want to now address some of the other pillars of Sara’s argument for the president’s innocence. Another one of them is that he relied on the advice of his lawyers, and that that certainly mitigates the sense that he was, uh, that he, that he’s guilty, and that he was… Again, it goes to the notion that he actually believed that he had won. He had lawyers working with him to try to investigate these cases. So what is your response to that? And then I want to hear how Sara responds to your response.

Lanny Davis

The, the response is, if we can prove beyond a reasonable doubt that he lied, he knew there wasn’t enough voter fraud to change the outcome of the presidential election, it doesn’t matter if his lawyers told him it was okay. That’s a crime of intent, and you cannot rely on the advice of counsel.

John Donvan

Sara, can you, uh, respond to the, to Lanny’s response on the question of his relying on the advice of his lawyers?

Sara Azari

Sure. This is actually a complete defense to the government’s case. You know, the case is built around conspiracy, um, by alleging that essentially, my client acted in concert with six unindicted co-conspirators, at least five of whom were lawyers. But all the substantive steps that my client took were in consultation with, or in fact directly carried out by, these experienced scholars, Harvard-trained lawyers, current and former high-level DOJ attorneys, and we have to remember that acting in concert alone is not a criminal conspiracy. It requires criminal intent, which as I, as I explained earlier, does not exist here. The government can’t prove its case beyond a reasonable doubt.

Sara Azari

The fact that these highly qualified lawyers are later also accused of criminal conduct doesn’t take away from the fact that at the s- at that time, President Trump relied on their advice and had no reason to doubt them. There were legal memos. There was the Wisconsin memo, the fraudulent elector memo, the fraudulent elector instructions, the fraudulent electors email memo, another memo about Vice President P- uh Pence’s certification powers, a letter prepared by a senior DOJ attorney expressing, in no uncertain terms, that there were significant irregularities with the election that may have impacted the outcome. So again, these detailed, highly technical legal memoranda setting out an alternate electors plan that has historical precedent, that has been actually used in two previously contested elections, and you’ve got President Trump, and he’s going, “Okay, this makes sense. I’m going to follow their advice.” And I think it was reasonable, and it’s certainly lawful.

John Donvan

And Lanny, I want to go to you to a second of four pillars from Sara’s argument, and that is that the president, uh, enjoys immunity from prosecution.

Lanny Davis

My distinguished, uh, colleague and I will agree that there’s been no Supreme Court decision on whether a president is immune from criminal conduct when he or she leaves office, but we do know that there was a Supreme Court case that only applied to civil liability, and that case did say that a president could be civilly liable after leaving office. So we’ll wait for the Supreme Court decision on that. It makes common sense to me that the Supreme Court will agree with the principle, as Justice Kavanaugh did in one of his recent, uh, uh, concurring decisions, that no person is above the law, and that a president, in the very last day of office, who commits murder, cannot be prosecuted by he was the president when he committed murder, I do not believe the Supreme Court will subscribe to that principle, and nor does a commonsense view of the law support that principle.

John Donvan

Sara?

Sara Azari

Yeah, this is actually a very important issue for the jury to determine, because it’s a threshold issue, um, and if the jury agrees that, uh, President Trump, um, has immunity for his election-related conduct and statements, then he is not guilty on, on any of these counts. All of them go away. Um, I take this back to Nixon v. Fitzgerald, a 1982 Supreme Court case, uh, which says that a president cannot be criminally prosecuted for acts within the outer perimeter of his official, uh, responsibilities. That’s just a fancy way of saying things that are within his duties as a president. Everything that the government has alleged here in this indictment, uh, was election related, and it had to do with the president’s constitutional duty to, um, to take care that the laws be faithfully executed, and that is exactly what he did. He was sitting president.

Sara Azari

Um, you know, uh, my esteemed, uh, formidable adversary here is saying that, uh, uh, you know, again, another very, very outrageous analogy to murder. This is not murder. This is going out the gate of the White House type of conduct, because it has to do with elections. You know, it’s in the public’s interest that a president do or his or her job without fear that his political opponents may one day prosecute him and criminalize his decisions, uh, just because they don’t like it, just like the government’s doing here.

John Donvan

Sara, um, the last, uh, leg of your, uh, defense argument rests on the First Amendment, that the president h- uh, was pro- is protected hi- The things he said is prote- are protected by the First Amendment. Uh, again, I want to go to some, um, some precedent. Um, the, uh, 1949 Supreme Court case Giboney v. Empire Storage and Ice Company, reaffirm, was reaffirmed in 2023, United States v. Hansen. Um, this established that the First Amendment does not protect speech that is part of conduct violating a valid criminal statute, so you’re concluding that Trump was not involved in violating any criminal statute in the events surrounding January 6th overall, but even if he had, are you saying that he would protected by the First Amendment?

Sara Azari

Absolutely, John, and the idea here is that it’s almost like… The analogy I have is to take a pin to a balloon. When you deflate that balloon, you’re left with some rubber, and that’s it. And so when you’re talking about violating a criminal statute, you need criminal intent. My position is the government has not met its burden beyond a reasonable doubt to establish that a criminal statute was violated. So when you take that out of this equation, out of this indictment, out of these charges, all you’re left with is political speech, and I cannot think of any discourse more protected than, and more political than something that has to do with the elections, whether they were conducted fairly and lawfully, and whether there should be any sort of investigation with respect to them.

John Donvan

Lanny, what do you make of the First Amendment argument?

Lanny Davis

Well, it’s a bit shocking to-

John Donvan

I kn- I know you’re a very big defender of the First Amendment, so I’m-

Lanny Davis

I am, and I’m a-

John Donvan

I’m curious to see-

Lanny Davis

I’m a-

John Donvan

… how you feel about this one.

Lanny Davis

… civil libertarian defender f- uh, quite strongly. But you can’t use the First Amendment to protect shouting fire in a movie theater, because that causes harm if there’s no fire. You certainly can’t use the First Amendment if somebody knows that they’re lying to undermine our Constitution, our democracy, on the counting of people’s votes honestly, and 61 judges all said, “Show me the evidence.” And some of his lawyers in the courtroom said, “No evidence,” and I challenge my distinguished colleague, as I challenge, respectfully, Mr. Trump. Not one single fact has been introduced by Mr. Trump or his lawyers showing enough voter fraud to change the election. That’s why his own attorney general said no. His own White House counsel said no. 61 judges said no. And by the way, the last judge in Pennsylvania did find some voter fraud, but not enough to change the election, so it’s 61 out of 61, so I challenge Mr. Trump, my distinguished colleague. Tell me one lawyer that cited facts to show enough fraud to change the election. The answer is, to date, silence. The answer is because there are none.

Sara Azari

Well-

John Donvan

Sara, you know, I… Uh, you, you go ahead, Sara. I was going to-

Sara Azari

Y- y- yeah.

John Donvan

… prompt a question, but I think you want to go for it, so go for it.

Sara Azari

Yeah, well his, all his advisors, many of whom were lawyers and constitutional lawyers, did beli- s- share in the same beliefs, and there’s pl- ple- ample evidence of that. But let me say this to, um, Mr. Davis. Uh, where there is smoke, there is fire. So you’re talking about yelling fire in a movie theater. Where there is smoke, there is fire. President Trump smelled and saw smoke, and saw flashing lights, and genuinely believed there was a fire. He called on the fire department to investigate. They came and they too saw the smoke, smelled the smoke, and saw the lights, and agreed, “Hmm, there must be a fire. We need to investigate. Investigation is at least warranted.”

Sara Azari

So, yelling fire on January 6th and in the weeks leading up to that time was really based on a genuine belief that there was in fact a fire, that fire being election irregularities that had to be investigated, and because that speech pertains to a matter of politics, it’s not a crime. It’s at the core of our democracy and our n- our elections. It is speech protected by the First Amendment.

Lanny Davis

John, do you mind if I jump in very quickly and take advantage of the wisdom of my colleague, yes, uh, when she said smoke? And that is the best way to summarize Mr. Trump’s approach to this case. Smoke and innuendo is what he does well, but facts is what he does badly, and judges asked for facts, gave his attorneys a chance to say facts, not smoke. He was unable to produce any facts. Judges said that to his attorneys, so with all due respect to my distinguished colleague, you’ve just summarized Mr. Trump, smoke and innuendo, but no facts.

John Donvan

Okay, we’re going to take another recess, and when we come back, we’re going to be bringing in some legal experts to help out with the questioning. We’re in the middle of our mock trial on Trump’s January 6th case. I’m John Donvan, and we’ll be right back.

John Donvan

Welcome back to Open to Debate. I’m John Donvan. I’m joined by Lanny Davis and Sara Azari, who are currently arguing in our mock trial, is Trump guilty in the January 6th case? What we would like to do now is to bring in some other voices, legal experts who are right now a member of the audience, to, um, to bring their expertise, in a sense, uh, uh, cross-examining the arguments that we’ve heard made so far, and up first, I’d like to welcome Randall D. Eliason, who is former chief of the Fraud and Public Corruption Section at the US Attorneys Office for the District of Columbia. Randall, welcome to Open to Debate. Thanks so much for joining us.

Randall D. Eliason

Thank you. Glad to be here.

John Donvan

Um, so the, I, I’m, I’m going to give you the floor. I think you have a question where you would like to, uh, address, uh, Lanny Davis’s argument, so would, uh, please go for it.

Randall D. Eliason

Yes, that’s right. Morning. Um, so, uh, Congress amended the Electoral, uh, Count Act in 2022, uh, to make it clear that the vice president does not have the power to reject any ballots, that his duties are, uh, entirely ministerial. So that at least suggests, or actually, it seems pretty compelling evidence that Congress itself thought that the Electoral Count Act was ambiguous and needed clarifying. There was some room for ambiguity there. Uh, but it seems like you’ve taken this kind of legal argument that attorneys have all the time, over the meaning of a statute, and turned it into the centerpiece of some grand conspiracy. So, uh, given that there was this ambiguity in the statute, why is that appropriate? And then in particular, why doesn’t that at least raise a reasonable doubt, uh, about President Trump’s criminal intent as we’ve been discussing?

Lanny Davis

Well, first of all, clearing up ambiguities in a statute doesn’t excuse criminal conduct, and it certainly doesn’t say that Mike Pence was wrong after he consulted every major constitutional scholar, and even a former sitting vice president, uh, whether he had any discretion to change the electoral votes in states where judges had already declared that Joe Biden was the winner, and he was going to unilaterally… He was asked to overrule those judges as vice president, and send these electors back to the states. He found whether the ambiguities which were there could be utilized to avoid the decision and send the electors back to the states, that no vice president had ever seen the ability to do that, especially after 61 judges said, “No, we’ve heard the evidence and there is no evidence.” So we’d have to ignore the rulings of those judges to declare, as he was asked to do by Mr. Trump and Mr. Trump’s lawyers, certain state electors should be sent back and re-litigated. And he chose, under the advice of his counsel, that he could not do so as a constitutional matter. The fact that the statute needed clarification and strengthening does not make his decision wrong.

Randall D. Eliason

I’m not saying that Vice President Pence was wrong, just the opposite actually. That kind of supports my argument. Uh, in the end, this didn’t happen, right? The, and he did make, uh, the correct decision, but the point is that it was open to some debate, uh, and even though he may have made the right decision, the fact that it was a hypothetical legal argument among some attorneys, that ultimately was not implemented, uh, to, to me just bolsters the idea that there’s a lack of criminal intent here, that President Trump was following, uh, a theory that was at least plausible, and was being promoted by these attorneys, and that Congress recognized that possibility by coming in and amending the statute after it happened.

Lanny Davis

The, w- it’s certainly, uh, apparent that Congress needed to clarify and close up the ambiguities, but that doesn’t relate to Donald Trump’s guilt. It relates to Mike Pence’s decision that he didn’t have the constitutional power, even with the ambiguities, to overrule the decisions of state dudg- uh, judges and send electors back. That’s what he was being asked to do, to send the state electors back to the states after the judges ruled, and ask them to look at it again, and he did not believe he had the constitutional power. But that’s really not addressing the criminal guilt of Donald Trump in deliberately ignoring the evidence of the vote being without fraud and he had not able to show evidence that he would have won because of fraud. And that’s the only issue facing Mr. Trump in the criminal case.

John Donvan

Sara, you did want to jump in at this point, I think.

Sara Azari

Uh, I think Randall’s question, and, and what we’re starting to see, um, as we, you know, going into this hour, is, is the theme of my case, which is disagreement is not a crime.

John Donvan

Okay. Randall, thank you so much for your question. Uh, we appreciate it very much. I now want to bring in Joel Cohen to the courtroom, and Joel is going to ask a question challenging part of Sara’s defense. And Joel, I want to point out, is the founder of TalksOnLaw, um, which is a platform that, uh, is designed to share legal knowledge amongst legal experts and the public. Joel, welcome. The floor is yours.

Joel Cohen

Uh, thank you, members of the court, distinguished jurors at home. Sara, let me, uh, first off applaud you on an admirable effort at defense so far.

Sara Azari

(laughs).

Joel Cohen

Uh, free speech claims have been central to that defense, so I want to get into some of the limits of free speech. I want to give another metaphor. If I’m a mechanic, and I lie to you that your car needs a new engine, even if I do so, as you said, consistently, if I do that so that I can charge you to replace it, I’ve committed fraud, not free speech. Now, if I’ve mistakenly believed that your car engine’s broken and I charge you to replace it, I’m just bad at my job. We look at the facts. Did the engine appear to be damaged? Did my mechanical equipment malfunction? When 61 out of 61 mechanic supervisors in my shop told me that that engine looks fine, did I pause and stop replacing the engine? If the answer to all those questions is no, then I argue that it’s a pretty easy case of fraud. The mechanic doesn’t get to believe the engine is broken just because he wants that money so badly that he’d love it to be broken. So Sara, how is this different in the case of your client?

Sara Azari

Thank you, Joel. So let me first start off by saying that your, uh, analogy to, um, a car, and this mechanic, is so much better. I mean, it’s on point. Um, cars are very much like elections. Uh, they’re complex, so I know nothing about cars, and I hear things moving around, dropping, oil on the ground. I’m freaking out. I have no idea if it’s the coolant system, the engine system, ignition, fuel, brake, whatever. I have no idea, like most of us. So, I start consulting with mechanics, and I have a set of mechanics who were just opening the hood of the car, taking a little look inside and going, “Nah, you’re good. Everything’s fine. It’s running fine.”

Sara Azari

But then I have another group of mechanics who have actually worked on this make and model of car, and, uh, they have great Yelp reviews, and they are the crème de la crème of mechanics, and they’re telling me, “No, there’s something seriously wrong with this car, and we need to keep it for a while and start investigating.” And so that brings me to just President Trump’s genuine belief that there were election irregularities, and he wasn’t sitting in a room scratching his head and going, “But I really want to stay in power, and I just got to figure out, you know, who do I go to who’s going to support what I think?” No, he had legitimate constitutional scholars, and lawyers, and deans of law schools, and people that worked on cons- contested elections advising him and agreeing with him, and I s- as I said earlier, you know, it’s absolutely human nature for us to side with the opinion and the advice that we’re getting that seems to, you know, support our hunch, our suspicion-

John Donvan

Okay. I, I-

Sara Azari

… our skepticism.

John Donvan

I have to jump in, because I’m seeing by the clock on the courtroom wall that we have to move to closing statements. Joel, I want to thank you for your question, and, um, we’re going to move to closing statements, so, uh, you’re each going to get a few minutes to, um, one more time appeal to the jury. Lanny Davis, you are the prosecution. The floor, once again, is yours.

Lanny Davis

Yes. Uh, the evidence will show that Mr. Trump was sitting in a room scratching his head saying, “I really want to stay president.”

laughs). I don’t think there’s any doubt that, um, my distinguished colleague said exactly what Mr. Trump was doing. The only problem, and I’ll begin with my closing statement by reminding you facts have not been mentioned by my distinguished colleague, nor by Mr. Trump, nor by his counsel when challenged by 61 judges. No facts, just scratching your head saying, “I want to be president, no matter what it takes.”

Lanny Davis

So ladies and gentlemen of the jury, you now know from multiple witnesses that Mr. Trump lied about losing the election because of voter fraud, and he used that lie to conspire to obstruct the counting of 2020 votes to prevent President Biden from being elected. I want to remind you of three facts to keep in mind to prove Mr. Trump knew he was lying.

Lanny Davis

Fact one, according to the sworn testimony of Vice President Mike Pence, Mr. Pence met with Mr. Trump alone on January 1, 2021. He asked the vice president to support a legal claim that five days later, on January 6th, Mr. Pence could challenge the electoral votes of certain states, and thus refuse to announce Joe Biden’s election, but Mr. Pence disagreed, saying the Constitution did not permit him to do so. Here was Mr. Trump’s response, quote, “You’re too honest.” He didn’t say, “No, you’re wrong, Mike.” He didn’t say, “The Constitution allows you to do that, Mike.” No, he just said, “You’re too honest.” Unavoidable conclusion as to what Mr. Trump meant, “You’re too honest, in contrast to me.”

Lanny Davis

Fact two, five days later, on January 6th, Mr. Trump held a rally on The Ellipse near the White House, before a planned march to the capitol to stop Congress from confirming Mr. Biden’s election. You heard testimony that when Mr. Trump was told that some members of the crowd were being stopped by security magnetic detectors, or mags, from bringing guns to the rally, he angrily said, quote, “Take the f-ing mags away. They’re not here to hurt me. Let them in.” And listen carefully, “They can march to the capitol after the rallies are over.” Intent to stop the counting.

Lanny Davis

Fact three, after the rally, we know from multiple witnesses that Mr. Trump, for 187 minutes, or more than three hours, watched on live TV from the White House as a violent mob stormed past Capitol Police and smashed into the capitol building, and he did nothing. For more than three hours, Mr. Trump watched on TV as hundreds of the mob forcibly broke into the floor of the House of Representatives, where the vote to confirm the electoral votes electing Joe Biden was going to soon take place, but he did nothing. For more than three hours, Mr. Trump ignored many text messages and calls from members of Congress fearing for the safety of themselves and their families, pleading that he call out the National Guard to protect them. Even his senior aides and members of his family pleaded with him to do the same thing, but he did nothing.

Lanny Davis

Finally, finally, after more than three hours, without ever calling out the National Guard, Mr. Trump publicly told the mob to go home and stop the violence, but he couldn’t resist telling them he loved them. That is all you need to know to conclude beyond a reasonable doubt, that Mr. Trump had the criminal intent to conspire to block the legal election of Joe Biden, and that he was willing to do anything, anything, including failing to stop violence, if that’s what it took.

Lanny Davis

In conclusion, if your verdict is guilty, you will confirm that our laws made by the people and for the people must be enforced equally, and you will uphold the core constitutional principle of our republic, that no person is above the law, including a former president. Thank you.

John Donvan

Thank you, Lanny Davis, and now Sara Azari, your closing, please.

Sara Azari

Members of the jury, the most important fact. Disagreement is not a crime. It is not a crime to believe the wrong people, and it’s not a crime to be on the wrong side of an argument. As to each and every count before you, the government has failed to meet its burden of proof beyond a reasonable doubt. First of all, the government’s case is barred by presidential immunity. A president cannot be criminally prosecuted for acts within his official responsibilities. Every action charged occurred while President Trump was still sitting president, and the government admits that all of it concerned the federal government function, namely the elections. President Trump is therefore immune from prosecution for all his election-related conduct and statements, and the government’s entire case fails as to all charge counts.

Sara Azari

But, let’s say for the sake of argument you find that he’s not immune. The government has failed to show beyond a reasonable doubt President Trump had criminal intent. It presents no evidence, no statements from President Trump, tweets, press interviews, emails, recordings, no nothing showing he did not in fact believe what he and his advisors were saying about the election. President Trump isn’t saying one thing publicly and the opposite privately. It’s clear from the evidence that he has always and consistently, publicly and privately, claimed there was election fraud and it should be investigated. Consistency is evidence of authenticity, not fraud.

Sara Azari

The government’s entire case rests on the idea that President Trump made knowingly false statements simply because a member of the political establishment assured him that they were false, but by law, he and his supporters are entitled to not only disagree, but completely dismiss those representations. Disagreement is not a crime.

Sara Azari

Let’s talk about willful blindness. The government’s admitting that it can’t prove beyond a reasonable doubt Pr- that President Trump had actual knowledge that he was wrong about election irregularities, so instead, they’re taking the shortcut. You cannot give them a pass. Even under the willful blindness standard, the government has to prove beyond a reasonable doubt that my client was actually aware he was wrong, and number two, he deliberately avoided learning the truth. But the evidence showed you the opposite, ladies and gentlemen. He genuinely believed he was right about the election irregularities, and he was insisting on a thorough investigation.

Sara Azari

Next, the case fails because President Trump relied upon the advice of his attorneys. Everything he did during this chaotic post-election period was in consultation with or directly carried out by experienced constitutional lawyers, experts, and scholars. By law, he was entitled to rely on their advice, and in fact, he did. The government’s case is in fact based in large part upon actual legal memo after legal memo after legal memo. I can’t think of a more legitimate legal advice than that which is documented in memoranda. The government has failed to prove beyond a reasonable doubt that it was improper for my client to rely on this abundant advice. He’s not a lawyer. These lawyers were highly credentialed and experienced, and they presented an electors plan that had historical precedent.

Sara Azari

At last, the government’s case fails because without criminal intent, it’s a deflated balloon. Its entire case is based on speech protected by the First Amendment. The government cannot criminalize speech on disputed social, political, and historical issues simply because it finds some views are true and some are false. They believe President Trump’s comments were false and that according to them, there was no election fraud. The government wants to criminalize these statements because the government believes they were false. But even if they were false, the speech is fully protected by the First Amendment. I can’t imagine anything more sacred in public discourse than views about whether a presidential election was conducted fairly and whether and how it should be investigated.

Sara Azari

Members of the jury, the government must prove its own entire case beyond a reasonable doubt. What that means is that after hearing all of the evidence you heard, the government must have not just convinced you, but firmly convinced you that President Trump actually intended to commit the charged crimes. The evidence simply does not meet this very high standard. Whether we agree with him or not, the evidence shows instead that President Trump and his attorneys and advisors believed there were election irregularities and that they should be investigated. Disagreement is not a criminal act. Disagreement does not show criminal intent. I therefore ask that you find President Donald J. Trump not guilty on all counts. Thank you.

John Donvan

Thank you so much, Sara, and with that, this Open to Debate mock trial is adjourned. And I want to thank, first of all, Randall and Joel for coming in as expert questioners. Uh, you really moved things in an interesting direction, but, uh, even above and beyond that, I want to thank Sara and Lanny for participating, for showing us what might be coming down the road, for, uh, treating one another with such respect, for teaching us things about the law. Uh, this is our first mock trial, and normally, we do debate. We take the name Open to Debate because we want people to be open to argument and, uh, e- the, the way that each of you conducted yourselves, uh, taught us a lesson in how to do this civilly, and I really want to say thank you so very, very much for taking part in our first ever mock trial.

Lanny Davis

Thank you, John.

Sara Azari

Thanks, John.

John Donvan

And I want to thank you, the audience, for tuning into this special episode of Open to Debate. I also want to say, you know, as a nonprofit, our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you, by Rosenkranz Foundations, and by supporters of Open to Debate. Open to Debate is also made possible by a generous grant from the Laura and Gary Lauder Venture Philanthropy Fund. Robert Rosenkranz is our chairman. Clea Conner is CEO. Lia Matthow is our chief content officer, Alexis Pangrazi and Marlette Sandoval our editorial producers. Gabriella Mayer is our editorial research manager. Andrew Lipson is head of production. Max Fulton is our production coordinator. Damon Whittemore is our engineer. Gabrielle Iannucelli is our social media and digital platforms coordinator. Linda Lee, who has just joined our staff, welcome Linda, is our account manager. Rachel Kemp is our chief of staff, and our theme music is by Alex Clement. I am your host, John Donvan. We’ll see you next time.