Dreeben answer came in response to questions from conservative justice Amy Coney Barrett, who Trump appointed. “The special counsel has expressed some concern for speed and wanting to move forward,” Barrett said. She then wondered if it would be possible for the trial “to proceed based on the private conduct and drop the official conduct”.
Dreeben indicated that the special counsel would like to ask a jury to decide if Trump is guilty for the full gamut of his attempt to overturn the elections:
There’s really an integrated conspiracy here that had different components as alleged in the indictment, working with private lawyers to achieve the goals of the fraud, and, as I said before, the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury, so that it sees the sequence and the gravity of the conduct and why each step occurred.
But, if the supreme court determines some of the allegations against Trump concern actions taken in his capacity as president, and orders those charges thrown out, Dreeben believes they can still use those decisions as evidence, based on previous similar legal cases:
We still think … that we could introduce the interactions with the justice department, the efforts to pressure the vice-president, for their evidentiary value as showing the defendant’s knowledge and intent, and we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took. However, you may consider it insofar as it bears on knowledge and intent. That’s the usual rule with protected speech.