Law professor lays out 6 defenses Trump’s lawyers may use in Mar-a-Lago documents prosecution

13 June 2023

This Tuesday, June 13 at 3 p.m. eastern time, former President Donald Trump is scheduled to be arraigned in a federal courthouse in Miami on 37 felony counts stemming from special counsel Jack Smith's investigation of government documents he was storing at Mar-a-Lago.

This will not be Trump's first arraignment; in early April, he was arraigned in a Manhattan courtroom after being indicted on 34 criminal courts in a New York State case that is being prosecuted by Manhattan District Attorney Alvin Bragg Jr. Smith's case, however, marks the first time Trump has been indicted on federal charges.

Trump and his defenders — from House Speaker Kevin McCarthy (R-California) to pundits at Fox News — have been claiming that the 37-count federal indictment is politically motivated. But University of Baltimore law professor and former federal prosecutor Kimberly Wehle, a scathing critic of the former president, vehemently disagrees.

In a listicle published by the conservative website The Bulwark on June 13, however, Wehle lays out six possible defenses that Trump's legal team may use in Smith's case.

"As former president Donald Trump has made clear in speeches and social media posts over the last few days, he does not think much of the federal indictment against him, in response to which he will appear in federal court today," Wehle explains. "But whether any of the gripes Trump has been airing could possibly translate into a legal defense in the case is a valid question."

Six defenses that Trump's attorneys might use, according to Wehle, are: (1) "The special counsel engaged in prosecutorial misconduct," (2) "The notes taken by Trump's lawyers cannot be used against him," (3) "Trump is immune from prosecution to the extent the indictment covers actions while Trump was president," (4) "My staff did it," (5) "no harm, no foul," and (6) "whataboutism and selective prosecution."

"Trump's legal team could take a shot at bringing up the 'whataboutism' defense that seems to come up incessantly in politics these days — that both former Vice President Mike Pence and President Joe Biden, both of whom are candidates for president in 2024, both had government records in their possession after leaving office," Wehle notes. "Pence's case was recently closed by the Justice Department. The big difference between Trump and the others is the obstruction part — both Pence and Biden cooperated fully with the government once problems became apparent. Trump, despite ample opportunity, doubled down."

Kimberly Wehle's full article for The Bulwark is available at this link.

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