Principals

Four key questions that could make or break the new case against Trump

Jack Smith’s charges against Donald Trump over his attempt to overturn the 2020 election are high stakes and unprecedented. Here are a few of the biggest questions the former president’s freedom could hinge on.

Was Trump just exercising his free speech rights?

The president’s lawyers argue he had a First Amendment right to speak his mind on the election and claim that it was stolen — whether or not that claim was correct. “Political speech now has been criminalized,” Trump attorney John Lauro told Fox News host Bret Baier Tuesday evening.

The indictment concedes that the president “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud” that cost him a victory.

But some speech isn’t protected. Smith will try to prove that Trump’s words encouraged people to participate in an illegal fake elector scheme, or aimed to make the vice president illegally block the certification of the election.

“Freedom of speech cannot trump a conspiracy to overthrow the lawful election of a new President,” Carl Tobias, a law professor at the University of Richmond, told Semafor.

Did Trump know he lost?

This question goes to Trump’s intent. The indictment repeatedly says that Trump “knowingly” lied about the election. Trump’s lawyers argue that Trump — honestly believed his claims and had no intention of deceiving anyone.

“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” Lauro said on Fox.

There are two potential routes around this defense.

The prosecution could try to point to examples where Trump seemed determined to overturn the election by any means necessary and uninterested in the specific justification — like when he told top Justice officials to “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.” Former Trump aides told the House select committee investigating Jan. 6 that Trump privately acknowledged he lost the 2020 election.

Prosecutors could also show “willful blindness” — that Trump, by any reasonable standard, should have understood that his claims were false and his actions were illegal, given the number of lawyers and Republican officials who told him so.

Was Trump simply relying on his lawyers’ advice?

Trump said he “was advised by many lawyers” during the period in question. Even if figures like Rudy Giuliani and Sidney Powell lied, broke the law, or gave crazy advice, the argument might go, Trump was just a client.

The prosecution claims the lawyers were “co-conspirators” in the case, working with Trump to subvert the law and provide some patina of justification as needed. The usual bounds of an attorney-client relationship break down when it’s being used to advance a crime.

“If you’re planning with people an unlawful act, lawyer or non-lawyer, you can expect to be swept in,” Anthony Michael Kreis, a law professor at Georgia State University, told Semafor.

Will jurors buy that the 2020 election was actually stolen?

During his Fox interview, Lauro also vowed to “relitigate every single issue in the 2020 election” for the jury, presumably including the fraud claims which every courtroom has rejected: “It gives President Trump an opportunity that he has never had before, which is to have subpoena power since Jan. 6 in a way that can be exercised in federal court.”

Punchbowl News: The new indictments will land differently in Congress than the classified documents case: “Hundreds of lawmakers lived through the Jan. 6 attack — and some even joined the rally near the White House that preceded it.”

Playbook: The indictment’s drama is in the details. Deputy White House counsel Pat Philbin allegedly warned Trump ally Jeffrey Clark there would be “riots in the streets” if Trump went ahead with his attempt to stay in power. Clark replied: “That’s why we have an Insurrection Act.”

Axios: The judge randomly selected to oversee Trump’s case in D.C., Tanya Chutkan, is an Obama appointee who denied Trump’s efforts to prevent the Jan. 6 committee from obtaining documents. “Presidents are not kings, and Plaintiff is not president,” she wrote.

Trump’s latest indictment has once again put some of his presidential primary opponents in the odd position of defending the man they’re trying to beat for the nomination.

Florida Gov. Ron DeSantis once again decried the “weaponization of government,” but added a new twist this time: As president, he would push for reforms so that criminal defendants could have their cases moved out of Washington, D.C. (where the vast majority of residents are Democrats) to their home districts. “Washington, DC is a ‘swamp’ and it is unfair to have to stand trial before a jury that is reflective of the swamp mentality,” he tweeted.

Vivek Ramaswamy, who has vowed to pardon Trump if elected, said he filed a new Freedom of Information Act request for communications between the White House and Justice Department regarding the Jan. 6 indictment. He is also holding a press conference today to announce a lawsuit against the DOJ regarding a similar FOIA request related to the classified documents case.

South Carolina Sen. Tim Scott turned the conversation to Hunter Biden. “What we see today are two different tracks of justice. One for political opponents and another for the son of the current president,” he said. “We’re watching Biden’s DOJ continue to hunt Republicans, while protecting Democrats.”

Mike Pence, who declined to try and overturn the election while vice president, was one of the few candidates who took the opportunity to criticize Trump. He said the indictment “serves as an important reminder: anyone who puts himself over the Constitution should never be President of the United States.”

— Morgan Chalfant

☞ White House: National security spokesman John Kirby denied that politics played any role in President Biden’s decision to keep U.S. Space Command headquarters in Colorado rather than move them to Alabama. The White House is still trolling Sen. Tommy Tuberville, R-Ala. for his hold on military nominations, though. And Treasury Secretary Janet Yellen said she “strongly” disagreed with Fitch’s surprise announcement that it was cutting the U.S.’s credit rating. (Another administration official called the move “bizarre.”)

☞ Senate: Democratic Wisconsin Sen. Tammy Baldwin is without a general election challenger for the time being, after GOP Rep. Tom Tiffany said he would not mount a campaign for Senate next year.

☞ House: The bipartisan leaders of the House select committee on China launched an investigation into BlackRock and Morgan Stanley Capital International, accusing them of facilitating U.S. investments in Chinese companies involved in the country’s defense industry or human rights abuses. Democratic leader Hakeem Jeffries and Veterans Affairs Secretary Denis McDonough are hosting a fair today in Brooklyn, N.Y., to raise awareness about the Aug. 9 deadline for veterans to receive backdated benefits under the bipartisan PACT Act.

☞ Outside the Beltway: New Jersey Lt. Gov. Sheila Oliver, 71, died Tuesday after serving nearly three decades in public service. The cause of death was not disclosed but she reportedly had long-term health problems. Oliver was, at the time of her death, serving as acting governor while Gov. Phil Murphy vacationed in Italy.

Why the U.S. is wooing Mongolia

The Biden administration is courting mineral-rich Mongolia as it looks to diversify clean energy supply chains and reduce dependence on materials refined in China.

Vice President Harris will host Mongolia’s Prime Minister Luvsannamsrain Oyun-Erdene for a meeting later today, the latest in a string of U.S. engagements with the country sandwiched between two main U.S. adversaries — Russia and China.

White House national security spokesman John Kirby told Semafor the two would talk about a “full range of issues,” including critical minerals and China.

The U.S. is under pressure to find critical minerals needed to build electric vehicle batteries, powerlines, undersea cables, and other key facets of the energy transition. Mongolia has a booming mining industry that accounts for almost a quarter of the country’s GDP.

“Most of its exports go to China at the moment and the U.S. … would like to get some of those resources for itself,” said Noah Gordon, a fellow at the Carnegie Endowment for International Peace. “You can’t have an energy transition without critical minerals.”

State Department officials traveled to Mongolia in late June to meet with officials and private sector representatives in an effort to bring more investment in mining and heavy industries. During those meetings, the U.S. and Mongolia signed a memorandum of understanding on critical mineral supply chains in the Pacific.

— Morgan Chalfant

Jeffrey Goldberg, the editor-in-chief of The Atlantic, is in advanced talks to become the host of Washington Week, the 56-year old PBS political affairs program, according to a source familiar with the discussions. The post has been vacant since Yamiche Alcindor left for NBC News earlier this year. Another person with knowledge of the situation said Washington Week had been in talks to bring on a strategic partner to help on the show. To read the rest of this story from Semafor’s Max Tani, click here.

The Supreme Court is still facing a record low approval rating, according to new polling out from Gallup today. Forty percent of U.S. adults say they approve of the way the Supreme Court is handling its job, unchanged from fall of 2022 shortly after the decision to overturn Roe v. Wade. The latest rating comes after a blockbuster term, which included major rulings striking down affirmative action and President Biden’s student loan forgiveness plan and upholding a section of the Voting Rights Act. The court has also faced scrutiny around gifts given to Justice Clarence Thomas, which has triggered calls from Democrats for new ethics rules. Opinions of the court are split by party, with 62% of Republicans approving of the court’s job and only 17% of Democrats saying so.

— Morgan Chalfant

Jason Furman is an economist and professor at Harvard University’s John F. Kennedy School of Government. He served as chair of the Council of Economic Advisers under President Obama.

Stories that are being largely ignored by either left-leaning or right-leaning outlets, according to data from our partners at Ground News.

WHAT THE LEFT ISN’T READING: Arrests along the U.S.-Mexico border increased by one third from June to July, according to statistics from the Department of Homeland Security.

WHAT THE RIGHT ISN’T READING: Michigan prosecutors charged two Trump allies in connection with an effort to tamper with voting machines during the 2020 election.

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