On Wednesday, I appeared on the Lincoln Project show We’re Speaking. Shortly after the interview, I thought of ways I could have given much crisper answers, which annoys me to no end.
Anyway, most of the answers I gave came from recent blog posts and my FAQ page, with one exception: The first question Lisa and Maya asked me (in reference to the Trump and the DOJ criminal investigations) was about how potential defendants normally behave once they come to understand that they are in trouble. I’ll answer that one here.
LIVE NOW: Trump’s legal team is stuck between a rock and a hard (disbarment, criminal charges) place. Lawyer and legal analyst Teri Kanefield joins Maya and Lisa to discuss Trump’s not-so-great legal options. Only on We’re Speaking. https://t.co/VCJmkZHqCG
— The Lincoln Project (@ProjectLincoln) September 28, 2022
The first thing a defense lawyer does is evaluate the client’s case. How strong is the evidence against the client? Does key evidence rest on shaky ground? For example, if there is only one witness, is the witness reliable? Does the defendant have any decent defenses? Was any of the evidence acquired illegally (so that it can be suppressed and not used at trial)?
In other words, the lawyer assesses whether the defendant has any hope of winning at trial.
In civil litigation, two litigants are in a dispute, usually over money. They’re basically equal. In criminal matters, the individual is up against the government, and the government has a lot of power. It’s an unequal power balance. This is why citizens (and defendants) have rights. Our rights are our protection against governmental abuse.
Initially, clients often don’t understand this power imbalance. Some have an unrealistic sense of what they can expect at trial (or on appeal).
If the evidence against the client is solid and they have no good defenses, they often have to go through an adjustment period as they reevaluate their beliefs and come to a more realistic view of their situation. In other words, they come to accept the reality that they are in deep trouble.
At that point, they usually begin listening to legal advice.
If a client has no realistic hope of winning at trial, a good lawyer will try to “sue for peace” (to use Mark Reichel‘s phrase). This means trying to get the client out of the mess with the least harm to the client. The best time to do that is pre-indictment. The federal criminal justice system rewards people who cooperate early and do not run up the government’s expenses and waste government time.
One thing a good defense lawyer does not do is unnecessarily antagonize the prosecutor. That would be like spitting into the wind. Or pulling the mask off the old lone ranger. (If you’re my age, you know the song). Don’t mess around with the DOJ, particularly when they’ve got the evidence against you.
This brings us to Trump’s lawsuit against the DOJ in which he is unnecessarily antagonizing the very prosecutors who are investigating him.
Trump v. US timeline:
- August 8: The FBI, pursuant to a search warrant, searched Mar-a-Lago and seized boxes of government documents including documents marked classified.
- August 22: (Two weeks later) Trump brought a lawsuit in a federal district court in Florida demanding that a special master be appointed to sift through the documents seized from his residence to make sure nothing privileged was given to the DOJ. It was an absurd lawsuit the district judge (Cannon) should have tossed it out immediately.
- September 5: Judge Cannon granted Trump’s motion and appointed a special master (Raymond Dearie) and ordered the FBI to cease using the seized documents as part of its criminal investigation until a special master could review the documents.
- September 8: The DOJ filed a notice of appeal with the 11th Circuit Court of Appeals.
- September 16: The DOJ then filed a motion with the appellate court asking that the 100 documents marked classified be excluded while the appeal pended (so that they could continue the investigation into those documents).
- September 21: The DOJ won on the motion. The appellate court excluded the classified documents from Judge Cannon’s order. The appellate court also gave Judge Cannon a shellacking and indicated that the appellate court didn’t think Cannon even had the power to appoint a special master.
- September 30: The DOJ filed a motion asking that the appellate review be expedited.
- October 5: The DOJ won on that motion as well. Under the expedited schedule, the briefing was completed last week and oral arguments are scheduled for November 22.
- November 22: Oral arguments did not appear to go well for Trump.
In this week’s court filings the daggers came out. Then Cannon stepped in and tipped the scales in favor of Trump
On September 22, Special Master Raymond Dearie announced a case management plan. It’s here. Evidently Dearie listened to Trump claiming on right-wing media that the FBI planted evidence because, among other things, Dearie required Trump to submit an affidavit by Friday as to any inaccuracies in the FBI’s inventory sheet. In other words, Dearie ordered Trump to submit a sworn declaration under penalty of perjury outlining why he believed evidence had been planted.
Dearie also expedited the schedule so that the entire matter would be concluded in October. Among other things, he gave the DOJ and Trump a single day to agree on a vendor.
On September 26, Trump filed a letter with Dearie setting out his complaints. He filed his complaints under seal (so the public couldn’t see them).
On September 27, the DOJ responded to Trump’s complaints in a publically filed letter addressed to Dearie, allowing us to infer what Trump had complained about. Among other things, Trump objected to the special master’s requirement that he submit a sworn affidavit if he had reason to think evidence had been planted. Trump also wanted an extension of the deadlines partly because he was unable to contract with a vendor to handle the documents. Apparently none of the proposed vendors would enter a contract with him.
The DOJ told Dearie that, to avoid further delays, the DOJ could enter a contract with a vendor and send the invoice to Trump. The DOJ also defended Dearie’s case plan. (Here’s my Twitter-thread analysis of the DOJ letter.)
Trump then responded with an open letter, clearly peeved that the DOJ made his complaints public.
On September 29, Judge Cannon stepped in and ruled in favor of Trump, even though the letters were addressed to Dearie and even though she had put him in charge. Essentially, she gave Trump everything he wanted, including extending the deadlines and telling him he didn’t have to submit the affidavit.
The DOJ’s response to Cannon’s shenanigans was to file a motion in the appellate court asking that the appeal be expedited.
The way to defend Trump would have been to stop all of this at the beginning. The White House lawyers (Philbin and Herschman) tried to get Trump to return the documents early on. Had Trump done so, and fully cooperated with the government to make sure that nothing was compromised or disclosed, he would not be in nearly as much trouble as he’s in now. As it is, he continually lied, he concealed the documents and said he didn’t have them, and he kept changing his story in public. And now he’s unnecessarily antagonizing the DOJ, wasting their time, and running up their expenses.
In other words, he could have been reducing his criminal liability instead of behaving stupidly and increasing it.
After I tried to explain all this on Twitter, the Washington Post published an article about Trump’s new lawyer, Chris Kise with this headline:
Kise–a former Florida solicitor general–counseled his famously combative client to turn own the temperature with the Department of Justice, people familiar with the deliberations said. But quiet has never been Trump’s style–nor has harmony.
According to the article, Kise told Trump that the “Federal authorities searched his Florida residence and club because they badly wanted to retrieve the classified documents that remained there even after a federal subpoena. With that material back in government hands, maybe prosecutors could be persuaded to resolve the whole issue quietly.”
Also from the article:
Continuing to attack the Justice Department and the FBI, Kise argued, was likely to cause federal authorities to be more aggressive. Kise suggested to other Trump advisers that the best solution would be to try to find an “off-ramp” with the Justice Department before a possible indictment or trial; he has said he thought Trump could avoid criminal charges.
However, other Trump advisors were telling Trump to be more aggressive. From the filings this week, it’s clear that Trump is listening to them, not Kise. My guess is that Trump believes that being aggressive will play well to his base and put more money into his pocket.
Any fascist leader worth his salt wants to flex his muscles, show he’s tough, and prove he isn’t afraid of something as flimsy and weak as a democratic government. Fascists love tough guys. NYU scholar Ruth Ben-Ghiat calls them Strongmen:
Instead of listening to good legal advice and accepting the authority of the United States government, Trump seems to think he can beat the government, so he wants to fight, fight, fight.
After that, you probably need some dog content
He definitely has us well-trained. Here is an example: He hates to be left behind. He wants to go wherever we go. If we have to leave him alone, he is so impossible when we return that we avoid that situation by taking him with us whenever possible.