I am seeing and hearing a ton of misinformation flying around on the airwaves. It’s scary how ignorant so many reporters and commentators are about how Federal Court works. As a lawyer who’s “been there, done that” I’d like to explain it, so that anyone who reads this will understand a bit better how this all works. Hopefully.
None of this explanation has anything to do with politics. It’s just the Law, stewpud. It’s about Federal Court, which I affectionately call “Fedlandia”. It’s a world unto itself. Full Disclosure: I have gone to war against US Attorneys and Homeland Security in real time in real life and fought against them tooth and nail. I hate them and they hate me. Just to be clear.
But I leave that all at the Courthouse door when it’s Showtime. Then it’s only about doing my job, and they can all jump in a lake as far as I’m concerned. But clearly, I am not a friend of the Feds, to put it mildly. Right, HSA? This is not a love letter to them. It’s not a love letter to Trump, either, to put it mildly. I can’t stand the guy. What a blowhard. He’s embarrassing. No. It’s about how criminal lawyers do their jobs.
First, I would think like a defense attorney and do what I do in every single case I ever take on. Read the Indictment. Read the statutes that apply. Figure out what the Government has to prove beyond a reasonable doubt to a unanimous jury. What are the “Essential Elements” of the crimes charged? What is the factual basis used to support those elements? Is mens rea an element? What is it? What kinds of Evidentiary Issues are presented that I can argue in Pre-Trial Motions? What mistakes did cops make? Was there a search? Can I attack the Search Warrant? The time to begin thinking about Cross Examination and Closing Arguments begins here and now.
This, my friends, is simply how it is done. It’s like this on every single case.
The other big thing to worry about right up front is “What if? What if I lose?”
Sound defeatist? It isn’t’. It’s just good lawyering. I tell every client that “Your job can be to hope for the Best. That’s fine. But my job is to prepare for the Worst. If I did not, I would totally suck as a lawyer.” So, you look at possible prison sentences. First, the Mando’s. (Mandatory Minimums, the fuel that feeds Fedlandia and greases the wheels of the giant Snitch Machine that is Federal Criminal Court, the Land of the “5K”.)
Did you notice that none of this has anything to do with politics?
In this case I did read the Indictment, and did view it through my Criminal Defense Attorney eyes. How could I not? It’s no longer possible for me to think like a “normal person”. So. I don’t.
Here, my very first thought would be…… Crap. (Actually, it would be more graphic than ‘Crap’.)
“My client is toast. “Then, I would begin the long process of clawing my way back, spending weeks and weeks, then months and months, then sometimes years and years, gradually persuading myself that the case is so weak and such an outrageous example of Governmental overreach that it’s almost impossible to believe that it’s even in court in the first place. Well, it’s not always quite that extreme, but you get the idea. You drink the Kool-Aid of your Defense (…if you are any good).
Regardless, you fight. (Of course, the entire time the case is pending, you also try to cut a deal and avoid a trial altogether 99% of the time, but this is about trials, not guilty pleas).
So, you file Motions. There is NO WAY that I would not file the following motions in this case:
- Motion(s) to Suppress Evidence
These could be based on a variety of theories. Attorney / Client Privilege, First Amendment (Private Papers and Affairs). Fifth and Sixth Amendment (Due Process and Confidential Attorney Client Communications). And, of course, Fourth Amendment with respect to the sufficiency of the particularity and specificity of the wording in the Search Warrant. There is ALWAYS SOMETHING TO ARGUE IN EVERY SINGLE CASE.
First and foremost, I would be focusing on any communications with lawyers which are being used to prove guilt. I would argue that these should be suppressed, that they never should have been seized in the first place, and should be suppressed because they are Confidential. The Government would argue that they are an exception to the rule because they fall under the “Crime / Fraud Exception” since the lawyers were helping facilitate the crime of Obstruction.
I’d be ready to reply, and argue that all Trump was doing was clarifying what was legal and what was not legal. Personally, I have had hundreds of conversations with clients about what they could and could not do legally, and have told them things like “No, don’t flea to Mexico.” And they did not — because I told them it was another crime, Bail Jumping, which can carry a ton of additional time if convicted. Did either of us commit a crime by talking about that? No.
- Motion to Dismiss
I would aggressively argue Selective Prosecution. This is where the topic of “What about Biden and Clinton and the others?” comes up. I would say Trump was targeted for political reasons, and that “similarly situated” people who did “similar” things were not charged, so my client is being singled out selectively. THIS is where arguing politics is relevant. This and Jury Selection, for obvious reasons……
- Jury Selection
I teach this. But I don’t know whether the lawyers get to say much during Voir Dire in this particular Court. In Fedlandia the judges frequently do most of it, depending on the jurisdiction, but it’s fun to imagine what you would ask if you are able to get a free shot. That’s because the whole ball game here is the Jury. ONE juror who hides and is a stealth “Always Trumper,” who will NEVER convict, would be my whole goal in this case. If so? Hung jury. Plus, there is a chance that if jury hangs, and Trump gets elected, then orders AG to dump the case, he gets off Scot Free. Which leads me to…
- Continuances
I’d be filing every possible motion to tie up the case. Delay, delay, delay. “Justice Delayed” is Justice, not “Justice Denied” we Defense Lawyers like to say.
If the trial is continued until after the Election? Never know what could happen, depending. So, it’s worth a shot, and for sure a very Major Objective. The Election would, of course, be Exhibit A in any Motion to Continue. For sure there is no caselaw precedent on that issue. It is SURELY good cause to set over trial. “Your Honor, my client has to give his Acceptance Speech for Republican Presidential Nomination and can’t attend trial that week….” (perish the thought, but it’s possible). I see NO WAY that this would ever go to trial before November of 2024. No way.
As for Prosecutorial Misconduct? I argue that all the time in trial situations. It’s just another trick. In reality, there is none of that here, at least that I can see.
- Theory of the Case
This is when I would begin to try to begin putting it all together and let it take over my life. I eat, breath and dream my case. I imagine Jury Selection. “Is your Garage messy, Juror No 5?” “Even though you are sitting here in a MAGA t-shirt you CAN BE FAIR AND PROMISE TO SET ASIDE YOUR PERSONAL OPINION, RIGHT?!?!?!?” And so on.
For Cross and Closing you follow Craig’s Golden Rule: “Take the very worst piece of Evidence and make it work for you.” Huh? Simple. I take the very worst thing the Government has, and find some way to make it work for the Defense.
Here? Easy peasy. The photos of the giant stacks of boxes are clearly hugely damning. So USE THEM.
e.g. Cross: “ALL OF THESE BOXES were in the storage locker? And you found 104 documents in this HUGE STACK? Like finding Needles in a Haystack?”
“Objection”
“Sustained. Move on.”
“How many total documents did you find, including all of the PERSONAL, PRIVATE, and PERFECTELY FINE TO POSSESS LEGAL DOCUMENTS?” “So, out of 4,867 pieces of paper you found 104 that were used to falsely accuse my client of these very serious crimes? “ etc. You get the idea.
The other bad piece of Evidence is the fact that Trump went through everything with a fine-tooth comb, so therefore he obviously knew what was in them.
Another easy peasy. You seize upon fact that there is SO MUCH STUFF, and he did SO MUCH WORK to sort through it all. He did his best. It’s not his fault IF he didn’t find all the needles in those giant haystacks. He tried, really, he did. He’s a hoarder, not a criminal.
When you see the lawyers do this type of thing, it is only because this is what we always do. It does not mean someone is not guilty in reality, only that they are Presumed Innocent and entitled to Due Process. This is what you are seeing, not a fake prosecution. Anyone who calls it a sham is a sham.
Final Point
To Donald Trump. Since you love social media so much, I suppose this might magically wind up in front of your eyes. Just in case you think I might be interested in working on your case? Don’t. There is no amount of money in the world I would accept to do that.
I have standards. I only represent honest criminals, not crooks like you.