Trials

Somewhere deep down in his brain - like at a sub-lizard level where not even the most adventurous of theoretical psychology nerds dare to go - Trump knows he can't win. He can't win at anything anywhere anytime again anyone.

He never has.

So that sub-lizard kernel of primordial brain-like substance sends a message up the chain, telling him he has to scheme and connive his way through life, doing whatever is necessary to avoid having to go head-to-head with any opponent - because he knows he's not going to win if he stands by the rules and behaves honorably.

He "beat" Hillary in 2016, by salting the earth (amping up the efforts of House Republicans), enlisting and taking full advantage of Russian dis-information techniques on social media, accepting (IMO) illegal contributions of foreign money laundered through the NRA, and by counting on enough people to be so sure Hillary would win that they threw their votes away in one way or another.

We got a little bit hip to the tricks, which meant he lost bigger than expected in 2018, got his ass kicked in 2020, lost pretty big again in 2022 as Republicans barely eked out a House Majority and lost a seat in the Senate.

He lost 62 of 63 court challenges filed regarding the 2020 election.

He lost to E Jean Carroll - twice - and he's about to lose another one to her.

His best good buddy CPA took the fall for him, and spent time in jail for business fraud.

and

and

and

For more than 70 years, he's done whatever he's wanted to do, and never once really faced the music - while learning the art of Life In Smarmspace®.

Opinion

Trump’s far-fetched defenses aren’t actually aimed at the courtroom

You do not need a law degree to understand that conspiring with someone to commit a crime isn’t protected by the First Amendment, despite thrice-indicted former president Donald Trump and his lawyer claiming the opposite. This is only one of their many half-baked defenses and extraneous excuses.

Trump’s defenses are far-fetched. So why make them?

Let’s start with the First Amendment. As former federal prosecutor Renato Mariotti tweeted,

“Many crimes involve speaking to others. Fraud is one of them. It is well-settled in the law that freedom of speech does not give you the right to commit fraud or engage in criminal conspiracies.”

Two Sunday talk show hosts made the same point when interviewing Trump lawyer John Lauro. NBC’s Chuck Todd (“You’re not allowed to use speech, though, in order to get somebody to commit a crime”) and CNN’s Dana Bash (“But you can’t break the law … like approving fake electors”) didn’t need law degrees to puncture that Lauro canard.

Moving on to Lauro’s and Trump’s professed desire to move the trial in the election case from D.C. to West Virginia (because it’s more “diverse”?!), the relevant case in the circuit that has been followed in other cases related to Jan. 6, 2021, U.S. v. Haldeman, holds that only if an impartial jury cannot be found during voir dire is the defendant “entitled to any actions necessary to assure that he receives a fair trial,” which might include a change of venue. However, in cases of such national notoriety, there is no place unaffected by pretrial publicity (which Trump constantly drives). Trump does not have a right to find a more MAGA-friendly state for his trial.

Moreover, the alleged crimes occurred in D.C. — and D.C. residents have every right to have the case decided in their backyard with their fellow residents as jurors.

We’ve also heard Trump’s usual claptrap that the judge is biased. He has smeared and insulted every judge (and prosecutor) — except U.S. District Judge Aileen M. Cannon (who has been roundly criticized by others and whose ruling on outside review of classified documents was harshly reversed by the 11th Circuit). Disqualification, as was discussed in connection with Cannon’s assignment to the Mar-a-Lago case, is governed by a statute. Under Section 455 of Title 28 of the U.S. Code, a party must show the judge’s “impartiality might reasonably be questioned,” for example with a showing of “personal bias or prejudice.” There is zero evidence of any such bias on the part of U.S. District Judge Tanya S. Chutkan; no reasonable person could question her impartiality. Whether Lauro thinks he can make a good-faith claim for recusal, without violating his ethical obligation to forgo frivolous arguments, remains an open question.

Other excuses do not seem to meet the straight-face test. It’s no defense to say that Trump did not “order” then-Vice President Mike Pence to overthrow the election. It will be enough to prove Trump attempted to engage him in an illegal plot to overthrow the election.

Lauro’s claim that Trump’s alleged arm-twisting of Georgia Secretary of State Brad Raffensperger to “find” 11,870 votes was merely “aspirational” is a real head-scratcher. Most conspiracies are aspirational (e.g., “I’d like to rob a bank”). But, of course, Trump allegedly implicitly threatened Raffensperger if he didn’t “find” the votes: (“It is more illegal for you than it is for them because, you know, what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.”) Arguing that a “technical” constitutional violation is not necessarily a criminal violation, as Lauro did, is equally perplexing. Surely, he knows some actions — such as depriving others of the right to have their vote counted — can be both criminal and constitutional violations.

Somewhat more serious, we have heard many Trump apologists raise the defense that he was simply following advice of counsel. That dog won’t hunt, either.

As a factual matter, attorneys — his White House counsel, Justice Department officials, including then-Attorney General William P. Barr, and even those conspiring with Trump — told him the plan wouldn’t fly. Paragraph 11 of the indictment documents numerous instances in which attorneys told him no fraud was detected. Even “Co-Conspirator 2” (John Eastman) wouldn’t say the plan was legal, only that it had never been tested (Paragraph 93). Moreover, the indictment says, “After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was ‘not going to work.’” Yes, even the author of the phony elector plan conceded it would lose overwhelmingly at the Supreme Court.

As a legal matter, an advice of counsel claim defense fails if the lawyers are part of the illegal scheme and/or if the advice is unreasonable. The so-far unindicted co-conspirators Eastman, Rudy Giuliani, Sidney Powell, Jeffrey Clark and Kenneth Chesebro cannot shield Trump from the crime they allegedly were committing together. Given that Trump’s entire campaign staff, Justice Department and vice president knew the plan was bonkers, it’s fair to say reliance on the Eastman scheme could not have been reasonable. (Legal scholars and case law have clarified that you cannot shop around for legal advice to justify illegal conduct. If you do, you’re obviously looking to find a stooge, not independent legal advice.)

Likewise, the argument that Trump really thought he won is both wrong and irrelevant. Both the indictment and the Jan. 6 House select committee testimony underscored that at times Trump dropped the facade and acknowledged Joe Biden had won the presidency. Moreover, U.S. District Judge Royce Lamberth already rejected the “but he really believed it” defense in the case of another Jan. 6 defendant. He found that even if the Jan. 6 defendant “genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing.” Lamberth added: “Belief that your actions are serving a greater good does not negate consciousness of wrongdoing.”

So, what is going on here? Norman L. Eisen, a co-author of a Just Security model prosecution memo, practiced at the same criminal defense firm, Zuckerman Spaeder, with Lauro. Eisen speaks highly of Lauro’s legal skills. Eisen told me, “He will have tricks up his sleeve by the time we get to trial, which I think will be as soon as the first quarter of ’24. Don’t expect to hear these cartoon versions of the defenses but something more sophisticated.”

Why, then, make these arguments? Trump’s legal strategy in all three criminal cases so far — the Mar-a-Lago documents case pending in Florida, the state-level business records case pending in Manhattan and the election case — has rested not on winning in court but on delaying and then winning the election. To do the latter, he feels compelled to give his supporters some rationale, however specious and silly, to excuse their voting for him.

Fortunately, if the election case moves briskly ahead and Trump is convicted, only the most bamboozled MAGA voters will be left to parrot his excuses.