Results of the president ial election. Coming up, well dig deeper into the indictment and the former president s defense. Can trump be charged with lying if he believes what he said was true . The answer may hinge, at least in part, at least on district judge Tanya Chutkan, a vet ran on cases involving january 6th defendants. What members of congress are claiming and will it be a jury of his peers or the electorate who render the final verdict . We begin with tomorrows arraignment in a d. C. Federal court where donald trump will be formally charged for repeatedly spreading lies as part of an elaborate criminal scheme with the ultimate goal to hang on to power by any means necessary. In fact, trump is raising four federal counts including three conspiracy, to defraud the United States, to obstruct an official proceeding and to impede the peoples right to vote. Ever since the news broke, the former president , his allies and attorneys have been working furiously to smear jack smith and the department while minimizing or outright dismissing the charges even while simultaneously using them to raise money. Among the arguments, that trumps provebly false claims were protected by free speech. Here is his attorney john lara with Savannah Guthrie today. Its the first time a sitting president is attacking a political opponent on First Amendment grounds and basically making it criminal to state your position and ive got to give you a little time out on that one. Weve never seen it before. The indictment specifically says the president has a First Amendment right to speech, even has a First Amendment right to lie, says it right here. This indictment is criminalizing conduct, not speech. No. Its criminalizing speech for this reason. What the president saw in the 2020 election is all these irregularities going on, affidavits, examples of when the rules were changed in the middle of the game. He had every right to comment on that. In a criminal case, what he would have to show is all that speech was not entitled to First Amendment protection. I want to bring in ken dilanian. Garrett haake is following the case from d. C. Carol lamb, a former federal prosecutor and Andrew Weissmann was a Senior Member of the mueller probe. Both carol and andrew are msnbc legal analysts. Ken, give us an example of what weve been able to glean from this indictment and how it sets the stage for tomorrows indictment. Reporter chris, in many ways its an incredibly detailed, thorough narrative. But in other ways its quite a narrowly focused legal case when you consider the scope of the conduct involved. Former President Trump is not charged with verks, inciting the riot or directly causing the violence. Jack smith and his team makes the point in the indictment that he exploited the violence while it was unfolding including by Calling Senators and members of congress and urging them to delay that certification of january 6th and did nothing to stop the violence. Its related to the violence but not directly alleging a nexus to the violence. That may be as a way of making sure this case gets to trial more quickly as was, perhaps, the decision not to charge any of the alleged coconspirators, six of them not named, but weve identified five. Ive been talking to lawyers today explaining what they think trumps legal defenses might be. In terms of the First Amendment issue, the First Amendment doesnt protect speech in the face of a criminal probe. That one will be tough. He may argue that he relied on advice of counsel. That may be more plausible. Andrew, it is clear when you read the indictment that jack smith anticipated this. Let me read more of what he wrote. Quote, the defendant had a right like every american 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. The defendant also pursued unlawful means of discounting legitimate votes and subverting the Election Results. Theyre using it, and probably very successfully with republicans, andrew, in the court of public opinion. But in court what happens here when youre talking about First Amendment rights . I think youll see the defense try to make certain claims. I do agree with ken that the First Amendment claim here seems exceedingly weak. If donald trump wanted to simply say, i won the election and i think the electoral votes should be counted and thats all he did, he just said that, even though he knew the government could prove it was false, thats not whats alleged and thats not the crime. It is that he took action based on that. The details here are quite stunning including making numerous false statements and even threatening the Secretary Of State in georgia with potential criminal prosecution if he didnt go along with the scheme. Its quite detailed and theres no First Amendment protection for that, anymore than if you were to tell an agent of yours to kill somebody or to rob a bank. You have a right to say those words, but they have criminal implications because of the actions that you are undertaking or causing an agent to undertake. So i just didnt think the First Amendment is going to fly, and its not going to fly with a judge like judge chutkan. I think its hard to see that that will even be allowed to be presented to a jury because its really a form of jury nullification. It may be something thats rhetoric, as you say, for the public now, but i dont see that flying in a court of law. One of the things this does, this indictment, carol, in depth as you read it, its page after page after page of people telling donald trump, people who have been his supporters, people who worked for him, republicans who said they voted for him telling him, no, this isnt true. Having said that, here is what trump attorney alina hab ba had to say about whether or not trump knew he was telling the truth. Take a listen. The thing about a criminal level indictment and charge is you have to prove the intent, the mental state of the president at the time, which everybody that knows donald trump and has read his truth, he Still Believes the election was stolen and he has good cause to believe so. Carol, is his mental state the issue here . Well, the mental state of any criminal defendant is at issue. But to elaborate on andrews point, a lot has to do with exactly what defenses the judge took and is going to allow at the trial and what her Jury Instructions are going to be. When you talk about intent, theres a lot of precedent for an instruction that goes to the jury that says intent can be intentional disregard of the truth. If there was ever an example of intention disregard of the truth, its what is laid out in the indictment here with not only objective parties telling donald trump that he did not win the election, but also his own advisers, his own Department Of Justice, his own Attorney General telling him he did not win this election. The Jury Instructions will be important, but i believe they will track the prosecutors argument that this is not an innocent issue of First Amendment rights. Obviously theres the legal team, but then theres the Political Team and all the confluences that that causes. What are you hearing since the indictment came down . Reporter to the degree to which the legal and political defenses overlap, its on the free speech and politics questions where donald trump and hips allies are making an argument that comes down to, yay, he did all this stuff, so what . Its politics. He was going to use every lever available to him to legally try to kind of win the election which is what he thought he was doing at the time. What youre seeing right now is the Justice Department criminalizing politics. Ive seen that line repeated several times by capitol hill republicans and others in the maga kind of orbit here arguing this is, as the former president describes it, election interference, an effort by joe biden and the Justice Department to, a, sideline him and, b, bury negative hunter biden news that had been coming out over the preceding several days. I dont know how successful that line of reasoning will be with the broader electorate. Its very successful in convincing republican primary voters to stay with the former president and to open their wallets to him. Every time hes indicted and arraigned, he has a big fundraising week and the campaign is working hard behind the scenes making sure this week is the same, pumping out emails, Text Messages and other fundraising appeals on a regular basis. Garrett, thank you so much for that. Lets talk about the timing, andrew. Jack smith says theyre going to seek a speedy trial. I want to play what john mara had to say this something about that . The Justice Department has had three years to investigate this, to take President Trump to trial in 90 days is absurd. The question is, why do they want to do that . If you want to seek e justice, you need to get ahold of all the evidence and understand what the facts are. How do you see this playing out, andrew . What decisions go into the speed with which this happens, and do you think its likely this trial happens before the election . I do think its important for people to even if you disagree with the overarching point of john lauro, that the defense is entitled to time to prepare. Its entitled to get the discovery, go through it, make motions and prepare an adequate defense. That is what it means to be a nation of laws. It doesnt matter if its somebody who you dislike, somebody you support. It doesnt matter who the defendant is. That being said, its important to note that this defendant has also had three years to prepare. This is not a charge taking him by surprise. He watched tch january 6th committee. Hes had access to all the evidence when january 6th ended its investigation and made that public. Hes not in a situation where this is all coming to him on the day that he was indicted. I do think the other thing to note is the judge here is highly respected, very experienced and was a public defender, a Defense Lawyer and is going to make sure that he has adequate time to prepare. Under the law, that speedy trial is presumed to be in 70 days. Most trials dont start within 70 days and i dont think this one will, but i do think it is entirely realistic to have this case before the General Election which, after all, is well over a year from now. I guess in some ways we saw that jack smith, carol, wanted to simplify this because there are six unnamed coconspirators, but they are not charged as conspirators here, although he says theyre continuing their investigations. Do you think that was a hard decision at all for jack smith and his team . I do think it was a hard decision, chris. There was probably no bigger surprise to me than the fact that this was essentially a conspiracy case being charged and yet there was only one defendant charged in the indictment. Thats very unusual. Prosecutors typically dont like to charge a conspiracy and have only one defendant in the courtroom because it naturally leads to the question, well, where are all the other conspirators you say were involved in this conspiracy . Its what we call the empty chair problem. I think it was a deliberate decision here, because if you look at the clock, jack smiths team is in a race against the clock. Theres no other way to say it. Hes got a defendant who is looking at probably six trials, four criminal, two civil, within the next year and a half. Thats an enormous number of trials, each separated by about two months. If jack smith were in a situation where he had six or seven defendants in front of him, five of whom are lawyers and all the various motions he would have to deal with before the trial, that would take a very, very long time. I think it was a wellconsidered decision and probably some of these coconspirators are going to end up testifying, whether under immunity or because theyre cooperaing willingly. Carol, i want to ask you about news that broke in the last half hour or so. We just learned jack smith is asking for a hearing in a potential Conflict Of Interest in the classified documents case involving walt nautas attorney, stanley woodward. Help our viewers understand which this is important. Its very important. It gives a little more insight as to whats going on on the defense side and what jack smiths team is dealing with with respect to whether they should make these motions which typically do tend to slow the Proceedings A Little Bit because, if they prevail or if the judge decides that, in fact, there is a Conflict Of Interest, one attorney representing a defendant and possible witnesses for the government in a trial, if the judge determines thats a Conflict Of Interest, hell have to take himself off of one or more of the cases and hopefully go get new attorneys. Thats a tradeoff jack smiths team has to make because the concern here is that the same attorney, stanley woodward, who is representing mr. Nauta who is a defendant in the maralago case is also representing witnesses one and two who are Government Witnesses who the government intends to call at trial, and he has in the past also represented mr. Tavares who is a cooperating witness for the government and was party to that very important discussion where one of the defendants said to him, the boss wants to destroy the surveillance tapes. The bottom line is mr. Woodward cannot be in a position where he is using information that he knows because of his attorneyclient relationship, he cannot use that information to cross examine his own client. That is a pure Conflict Of Interest and the judge is going to have to decide what to do about it. Were out of time, andrew. I want to let you weigh in briefly here. Do you think theres a clear conflict potentially here . I think it is potentially waivable. Somebody else could come in and do cross examination. I think it raises the issue that mr. Woodward looks really bad here when he was told by the government months ago about this potential conflict, he did not stop representing a cooperating witness who had information about another client. Thats really poor form, and that should not have occurred if these allegations are correct. And its a problem when you have multiple representations and one of those people wants to cooperate. They need to have separate counsel. You dont represent all of them. Thats not what youre supposed to do. Ken dilanian, thank you. Coming up, subverting Election Results in states won by joe biden. The deep details on seven states that the indictment says trump hoped to win and help him overturn the election. Thats in 60 seconds. Lection. Thats in 60 seconds a striking part of this third indictment against the former president of the United States focuses on seven battleground states. You can see them all here. Arizona, georgia, michigan, nevada, new mexico, pennsylvania and wisconsin. All of them won by joe biden in 2020. But former President Donald Trump attempted to, according to the indictment, subvert the legitimate Election Results and change electoral votes in order to cling on to power and the white house. I want to bring back Andrew Weissmann. Seven key states, seven different strategies, Disproven Claims of vote dumps in michigan, phantom Absentee Ballots in pennsylvania, voter fraud in arizona, and then, of course, the pressuring and threatening of officials in georgia. Help us get these claims into context here, in the context of the charges against the president , the former president of the United States. One of the schemes thats alleged is this Pressure Campaign with respect to the states that you mention. There are various forms that it takes. There are various alleged lies that are laid out. Quite notably, chris, a number of the conspirators, their roles are really detailed here with respect to what they did in different states. For instance, in arizona, it seems very hard to imagine there wouldnt be State Investigations based on these allegations. So a whole variety of different schemes and obviously the one we know the most about is georgia because of the fact that Brad Raffensperger has a taperecording of the president s comments, not just asking him to find one more vote that is needed to win, but also when raffensperger refuses and says, theres no fraud here, the president lets just say he politely but not very subtly suggests he could be subject to criminal prosecution if he doesnt go along with the scheme. So quite an array of charges with respect to this aspect of the scheme. There are other aspects related to the Department Of Justice and to mike pence as well laid out in the indictment. Pretty clearly suggests that raffensperger has the wrong person in terms of who committed a crime here. I want to ask about the Michigan House speaker because he pushed back consistently about the repeated claims of voter fr