‘Defense du jour’: Trumpworld’s whatever-it-takes approach to indictment

As reporters and observers stood around outside the federal courthouse in D.C. on Thursday waiting for Donald Trump’s arraignment, staffers for his 2024 presidential campaign passed out fliers.

“When Biden corruption is exposed,” it said at the top, “the government targets Trump.” It then detailed four occasions on which, it argued, the “Biden playbook” had been effected, moments when new revelations about President Biden were buried under attacks on his predecessor.

You may have seen a similar argument before; this claim is not new. Like so many things that emerge in the world of right-wing rhetoric, it bubbled up from the survival-of-the-fittest scrimmage on social media, gained a little polish and became part of Trump’s tool kit. And like so much of that resulting rhetoric, it was nonsense.

Consider the four alleged examples.

The indictment of Trump by Manhattan District Attorney Alvin Bragg — not an arm of the federal government, mind you — was supposedly meant to distract from the House hearing testimony on Biden’s “mishandling of classified documents.” That’s apparently a reference to voluntary testimony from a former Biden staffer who explained how he’d moved offices. This led to Trump’s weird Chinatown fixation, but nothing more.

Then there was the purported release of documents alleging a bribe, overshadowed by the first indictment from special counsel Jack Smith. That “release,” though, was simply the FBI responding to a request to let legislators view an unverified document that other legislators had already seen — and that Sen. Charles E. Grassley (R-Iowa) would eventually just release publicly. Not much happened there, either.

The third example is in the same vein. The superseding indictment in the Mar-a-Lago case came soon after Hunter Biden’s plea deal was criticized by a federal judge. That plea deal is likely to still be reached. And then the fourth example: The second indictment by Smith came as a House committee was interviewing a former partner of Hunter Biden’s — testimony that proved to be by no means as explosive as Republicans had insisted.

In other words, none of these incidents is commensurate. The items at left are offered not because they are significant but because they happen to line up chronologically. They are offered, as I’ve noted, to imply that the charges against Trump are unserious ploys, less serious than they seem and to imply that the “Biden corruption” is more serious. That these things are so important that they must be stepped on by criminal charges against Trump.

All of it is hand-waving, misdirection. It is to leverage Trump’s legal issues for his political benefit because his central argument is that he’s only being targeted because his opponents are so scared of him. This plays to that, however ridiculous. But since his team justifiably sees his political success as the best means of attaining legal success, they scatter such claims around like rhetorical feed.

They can’t simply cede the legal point, of course, but the bar for what serves as a credible legal rebuttal to the charges Trump faces is low. So Trump and his allies throw out various putatively legalistic responses, each of which needs only to overcome the legal scrutiny of Trump’s supporters, not a federal judge.

Speaking to MSNBC’s Lawrence O’Donnell on Thursday, former federal prosecutor Andrew Weissmann pointed out that this habit of tossing out random arguments meant to serve as stopgap legal defenses is by now well-established.

“I used to call it ‘defense du jour,’” Weissmann said, walking through several from the first Smith indictment centered on classified documents: that evidence was planted or that Trump could simply declassify things mentally. “It’s like, let’s see what plays.”

Ever heard Trump talk about how he can keep material under the Presidential Records Act? Defense du jour. This argument that the latest indictment is eviscerated by the First Amendment? Same. Trump and his allies just need something that his allies and supporters can present as a skeleton key against conviction. So they offer them stuff and, once again, the fittest, most palatable ideas survive.

The best example of this, of course, came in the weeks after the 2020 election. Trump offered a constant stream of false allegations of fraud, cheating or wrongdoing — each of which was debunked or dismissed, though many of which survive to this day. In court, though, his lawyers were far more careful, recognizing that blanket, indefensible assertions about vote-stealing would not fly. There was a gulf between what was argued in court and what was presented publicly. One result was that Trump’s supporters often still believe that his legal defense was insufficient and therefore flawed — instead of recognizing that it was the public rhetoric that was flawed and unuseful.

So Team Trump takes a meme off Twitter, makes it look pretty and hands it out outside the courthouse. It was the defense of that particular jour, a way to pivot his legal troubles into an accessible political victory. If such ploys keep just enough people engaged and loyal for him to win the Republican nomination and then the presidency? Then they were his best legal bet after all.