Trump’s legal team warned him of a possible indictment, and more

Contents:

1. Pat Cipollone and Pat Philbin have been subpoenaed by a federal grand jury
2. Trump’s legal defense team has warned him that indictments are possible
3. Hail Mary Lawyering
4. Team Trump seems to be testing possible messaging
5. “Is wise (or polarizing, or whatever) to indict a former president?” is an irrelevant question.
6. Dog Content

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Preliminary matter: I appeared this week on the Lincoln Project TV Show “We’re Speaking” hosted by Maya May and Lisa SenecaI. I’ll give you all the link even though I dislike how I look and sound. Most of my answers came from my FAQs.

LIVE NOW: Legal expert and author Teri Kanefield weighs in on the question everyone's thinking, Will Trump ever pay for his crimes? Join Maya May and Lisa Senecal for a riveting new edition of We're Speaking. https://t.co/akyQcYvSP0

— The Lincoln Project (@ProjectLincoln) August 3, 2022

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1. Pat Cipollone and Pat Philbin have been subpoenaed by a federal grand jury

Two new developments this week:

August 2: We learned that a federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election.

August 3: We learned that Patrick Philbin, who worked in the White House under Cipollone, was also subpoenaed by a grand jury for testimony and documents.

You can safely assume that any leaks are from the witnesses and not the DOJ because it’s illegal for anyone within the DOJ to discuss grand jury proceedings or testimony.

What this means is that the investigation is (obviously) moving close to Trump and his inner circle.

A grand jury indictment is the formal charging instrument: Before federal prosecutors can bring an indictment, they must present their case to a grand jury. The grand jury decides whether charges should be brought.

Before a prosecutor presents a case to a grand jury, he or she studies the information from investigators and the information they gather from talking with the individuals involved. In a high-profile case like this one in which the DOJ is trying to keep everything under wraps, it’s likely that the prosecutor first gathers as much information as possible before convening a grand jury. Thus what we learned this week about Cipollone and Philbin would come fairly late in the process.

So the “hot takes” that the Cippolone and Philbin are being called to the grand jury because the DOJ is responding to pressure from the J6 televised hearings is wrong. (See my FAQs for more explanation.)

Because a grand jury decides whether a person should be indicted, unless a legal team is criminally stupid, they know what it means that a grand jury is hearing evidence about their client. That brings me to . . .

2. “Trump’s legal defense team has warned him that indictments are possible,” sources tell CNN.

Interestingly, the lawyers are not named (and remember that any leaks come from the defense).

Here’s the meat of the article:

Remember: Trump already lost on executive privilege in his attempts to keep Congress from getting access to his communications. The courts have already ruled. So the issue of executive privilege is a losing issue.

It can go very fast if the witness wants to testify (or is willing to testify) and is just looking for cover, and  I don’t believe either Cipollone or Philbin have any interest in shielding Trump.

But any time you have a lawyer providing testimony against a former client, it is prudent to take a few precautionary steps. Cipollone’s lawyers will want to protect Cipollone from betraying his ethical obligations and a good prosecutor wants to avoid errors. (Cipollone was White House counsel and not Trump’s personal lawyer, which is why the issue is executive privilege and not attorney-client privilege.)

We already know from reporting about the grand jury testimony of Marc Short and Greg Jacobs that the prosecution and lawyers for Short and Jacobs are taking a few precautionary steps before asking Short and Jacobs to answer some of the stickiest questions. Most likely this means getting a court order, which nobody will appeal or question.

Who close to Trump might be cooperating?

Jeff G. in the comments asked:

Do you think Cipollone will answer the questions he left blank with the Jan. 6 committee? Or will he “not recall” or still try to claim executive privilege?

Yes, I do. Regarding Cipollone and Philbin: I have no reason at this point to think that either of them (particularly Philbin) have any interest in protecting or shielding Trump. I do, however, think that both, as lawyers, will want to cover themselves. They will want to make sure that nobody can accuse them of unethical behavior. In general it is important for people to be able to talk to their lawyers in private and with candor. That’s why I anticipate that they will take a few precautionary steps and then tell the prosecutor everything.

The question of the hour is who close to Trump is cooperating and who is not, because that will tell you everything. To give an example from the New York investigation into the crimes of the Trump Org: The Trump Org and Allen Weisselberg, the Trump Org. CFO, have been indicted for financial crimes. If Weisselberg is willing to take the fall and say “Trump  knew nothing,” and if Trump shielded himself by putting nothing into writing, it will get very hard to pin crimes on Trump. This is why Trump’s former personal attorney and fixer said this about Ivanka and Jr.’s testimony in New York:

Rest assured… every financial question asked of these two was met with a response that contained the name Allen Weisselberg in it.

Mostly all we can do is make guesses. Until yesterday I thought there was a good chance that Eastman might cooperate–then he started saying nutso things in public. My measure for guessing right now is that if someone is quiet, they may be cooperating. If, like Rudy Guilani, they are spilling their guts everywhere, they most likely are not. A crazy person is of no use to the prosecution as a witness. Witnsses have to be somewhat sane to be believable, and the point of a witness is that a jury has to believe their testimony.

The article also said:

I’ll take a stab at why Trump is ignoring this advice: He thinks he can “influence” their testimony.

Why would Team Trump leak? Spin. The spin here seems to be that they’re in “talks” (as if they are equal negotiating partners) and the DOJ is taking executive privilege seriously.

If a grand jury is hearing testimony about your client and you are in “talks” with the prosecution, you are there hat in hand.

This leak from Team Trump is no surprise given the reporting earlier in the week that Team Trump is considering possible legal defenses.

3. Hail Mary Lawyering

The Rolling Stone reported that, based on 3 people familiar with the matter and internal communications reviewed by Rolling Stone, Team Trump is considering, as its defense, finding a fall guy.

This reporting dovetails with something Liz Cheney said at the July 12 hearing. She explained how the Trump defense strategy is evolving:

“Initially their strategy was to delay and deny . . . Now the argument seems to be that Trump was manipulated by others outside the administration, that he was persuaded to ignore his closest advisers, and that he was incapable of telling right from wrong. This new strategy is to try to blame only John Eastman or Sidney Powell or Congressman Scott Perry or others and not President Trump. In this version, the president was “poorly served” by these outside advisers. The strategy is to blame people his advisers called “the crazies” for what Donald Trump did.”

The Rolling Stone reported something similar:

This Tweet is from a few weeks ago, but it confirms Cheney and Rolling Stone reporting that Team Trump is considering a “he relied on bad advice” defense. The question I have is what Trump’s attorneys and advisors think of the strategy that involves them getting thrown under the bus.

The “I was following bad advice” defense might work on Fox and Newsmax, but it won’t work in a court of law.

• Your honor, I didn’t want to rob the bank but my buddies told me it was very legal and very cool and I believed them.
• White House counsel told me not to, but my lawyer buddies said go for it, so it’s my buddies’ fault.

Nope. Won’t work.

According to the article, Trump’s legal team is considering a few other defenses.

The first Amendment Defense was what Trump raised at his Second Impeachment but our understanding of the facts has changed since then [I talked about this in my FAQs]. In this speech, Garland made clear he was anticipating a First Amendment defense:

We can therefore expect the prosecutors to be prepared for that one.

The last defense Team Trump is considering is the lamest: The right to petition the government for redress. This right (needless to say) does not include the right to send a violent mob to interfere with the business of Congress.

There are really two kinds of defenses: (1) I didn’t do it, and (2) Yes I did it, but I am not criminally liable.

“I didn’t do it,” can look like this: “Officer, you got the wrong guy!”

“I did it, but I am not criminally liable,” can look like this: “Yes, I pointed the gun at the teller and said, ‘give me the money,’ but I did it because the bad guy had a gun at MY back and forced me to rob the bank.”

Trump has no defense, which is why his legal team is in “talks” with the prosecutor about executive privilege

You see, when the defense has no defenses, what they do is try to get rid of the evidence, for example, by filing a motion to suppress the evidence, which can look like this: “Your honor, the evidence cannot be used against my client because the evidence was obtained in violation of my client’s constitutional rights.”

Because Trump really has no defenses, it is no surprise that his lawyers are hoping to keep evidence away from the prosecution by claiming executive privilege (an argument that will fail, but his legal team has try something.)

Hail Mary Lawyering: When you have nothing, but you have to try something.

Every defense lawyer recognizes Hail Mary Lawyering. The legal guideline is that the defense can raise losing arguments as long as they are not frivolous. The unofficial rule is that your defense should at least pass the laugh test.

4. The Fox-Trump-GOP seem to be testing possible messages

The mysterious lawyers on Trump’s “Legal Team” are not the only people who think Trump may be indicted.

In the spirit of the “Firehose of Falsehoods” propaganda method, this statement contains 2 lies. I noticed a tendency when this was posted on Twitter for people to jump in and debunk the first lie and ignore the second.

This message allows Trump to keep repeating his election lie. Repeating a lie over and over is another propaganda technique (see Goebbels).

Let’s suppose, for the sake of argument, that Trump is indicted. I anticipate that all the people who’ve been heckling Garland to indict Trump (and insisting that he never will) will take credit and insist that Garland brought indictments because of political pressure.

Now, for the sake of argument, imagine that while Trump is saying, “I am being indicted by my political enemies because they can’t beat me,” his political enemies are saying, “These indictments came because of the pressure we applied.”

See the problem?

Here’s the thing: Garland has been regularly issuing statements about how he intends to hold everyone accountable while maintaining the integrity of the investigation. Each time he does, his critics seem to settle down for a few days, but then the heckling starts up again.

The real quandary is this: What people are demanding for “reassurance” would compromise the integrity of the investigation. (I lay that out in my FAQs). In other words, to give the reassurance people demand, Garland has to be unethical, which undermines any “reassurance.”

There is another way that these demands are circular.  First, people spend months bashing Merrick Garland. Then they want Merrick Garland to take steps to regain trust. It’s a little like the election fraud argument. First, the GOP pounds the message that there was election fraud. Then they want to pass laws making it harder to vote because the public doesn’t think elections are secure.

In this case, we have the same people who have been bashing Garland insisting that Garland needs to make announcements to regain public trust by in fact, talking about an ongoing investigation, which would undermine the integrity of the investigation.

5. “Is wise (or polarizing, or whatever) to indict a former president?” is an irrelevant question.

I understand from a question Lester Holt asked Garland that pundits are debating whether indicting a former president would be a bad idea because it would “tear the country apart.”

It’s a weird question because the Constitution envisions just such a thing. The highlighted portion of Article 1, Section 3 makes clear that former presidents can be indicted:

The passage says if a president breaks the law, the process is to impeach, remove, and then prosecute. So obviously the idea of prosecuting a guy who used to be the president but broke laws didn’t trouble the drafters of the Constitution.

But the Constitution doesn’t say that, so they’ll have a hard time. What happens if evidence emerges after he leaves office that wasn’t available during the Senate trial? What would happen if the president breaks laws after leaving office?

I just don’t have patience for the “is it a good idea” discussion. Prosecutorial independence and prosecutorial discretion say the prosecutor decides based on the evidence. Politics shouldn’t enter into it. (Look, some of us around here have to be idealists.)

In fact, in response to the question, Garland said, “We prosecute without fear or favor” (which is the correct answer).

That discussion also tries my patience. We jumped from “Garland will never indict” to “Biden will pardon him” so fast I have whiplash. Both are speculation (meaning conjecture without firm evidence).

I would guess the “Biden will pardon” him people are too young to remember that Gerald Ford committed political suicide by pardoning Nixon, and they were members of the same party. Moreover, in 2020, Biden pledged not to pardon Trump.

Notice that “Garland will never indict” and “Biden will pardon” have the effect of directing ire at a democratic administration.

Dog Content

JJ at the beach: He runs as fast as he can up to a big dog, barks fiercely, then he runs back to us. I’m sure this accomplishes something, but I don’t know what. (The big dogs also seem puzzled).

(I have it on good authority that some of my readers are here exclusively for the dog content.)