Donald Trump's Lawyers and Donald Trump Lawyering
"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)
Alice in Wonderland %281951 film%29 poster.
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Alice in Wonderland (although not the Disney version): where Trump and his attorneys often seem to be.
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As is well-known, Donald Trump has now been charged with four separate crimes, with a total of 91 indictments. (If one takes a step back for a moment, and doesn't think "Trump" in terms of the indictments, that is a truly astonishing number to be served --- in four sets --- on one individual during a relatively short period time.) But they all do concern Trump, so no one should be surprised. Of course two of the sets, the "January 6th case" and the "Georgia vote-rigging case" are related to the same overall crime: the attempt to steal the 2020 Presidential election. There is a wonderful irony here, isn't there? Trump tells a Big Lie in telling a story that there was a big lie that gave the election to President Joe Biden.
But then there is also the "claimed-powers-of-the-President-which-happens-to-be-in-violation-of-the-law" "Mar-a-Lago" case. It sort of fits in the with the first two because it is another aspect of Trump's rather grand vision of what the powers of the Presidency are (that is, when he is the President, of course). But the fourth is just a gutter-level falsification-of-records-in-order-to-cover-up-facts-relevant-to-an-election (for the Presidency, of course) case. And yes, this is all well-known, and together they have been, and will be, the cause of the spilling of much ink, including by me.
This column, however, focuses on Trump and his lawyers and how he uses (and abuses) them and how (nothing original here) he often acts as his own lawyer. That is, while he does not argue in court (as much as he would like to), according to many authorities he does write the outlines of the briefs which his lawyers present in court. And if one looks at some of the briefs/arguments his lawyers are currently making that surely does seem to be the case.
But first, as to his lawyers and how he treats them. As has been reported many times, he is notorious for stiffing lawyers who have worked for him. (Presumably, high-powered ones, like John Lauro, get paid up front.) Jenna Ellis is an example of one of his lawyers (she worked on the "fake electors scheme") who has been left out to dry in terms of getting her own attorney's fees paid. And who knows whether or not she was paid for her own earlier work on the original false "stop-the-steal" case which has brought her to her current status as a defendant in the "Georgia Trump-vote-stealing case." There is a certain irony here, isn't there? She represented Trump in his battle-based-on-lies that the 2020 election was stolen from him, and she is defendant in a case arising from the same set of facts.
In terms of Trump's lawyers-and-lawyering in practice, let's take, for example, some lawyering in the "Jan. 6" case. Is not ironic that his lead attorney, John Lauro, used to work with the attorney Norm Eisen who, among other things, was the co-lead attorney for the House Judiciary Committee in their indictment of Trump for --- wait for it --- his involvement in the "Jan. 6 Plot.?." (One can assume that Lauro is getting very well-paid, in advance.) Eisen himself said about Lauro : "Trump just got himself a brilliant & ferocious defense lawyer." (I just love this lawyers-will-be-lawyers-everyone-deserves-a-defense argument. I won't go there at this time.) But, looking at Lauro's opening argument (see the next paragraph), it doesn't seem to be exactly brilliant. Of course, time may tell. Lauro may come up with something better. But in his defense on this matter, this one, as has often been the case in the past, seems to have come from Trump's pen (I mean dictation, for sure), not Lauro's.
The argument/defense has two parts (neither of which deal with the substance of the indictments, of course). The first is that the case should be thrown out-of-court because it is nothing more than "election interference" on Biden's part. (Forget the Justice Department, the Grand Jury system, and that there is tons of evidence [beginning with what was gathered by the Congressional "Jan. 6 Committee"] that crimes were committed.) The other comes down to two of the Republicans-at-any-level's favorite words, currently: "Hunter Biden." These are interesting arguments, both part of the long-time Republican "Look Over There" strategy for dealing with disputes for which they do not have an otherwise defensible position.
But it is hard to see how they will get anywhere with a jury, once Jack Smith presents his case in court. (Of course, that's why we have trials and juries [and many years ago I had the pleasure of leading a performance of Gilbert and Sullivan's first-and-very-famous comic operetta "Trial by Jury," with the London University Gilbert & Sullivan Society, in which both the plaintiff and the defendant present arguments not too much sillier than Trump/Lauro's. Of course, they carry much less import.]) Lauro himself added an interesting dimension to the proceedings, when he called them a "Show Trial." One cannot know for sure to which event or events he was referring, but the term is often considered to be related to a series of trials held in Moscow between 1936 and 1938 of former leaders of the Soviet Communist Party. Ah yes, red-baiting. No far from the lips of just about any Republican since the time of Joseph McCarthy. But why Lauro? I guess that he is getting infected with the McCarthy-bug.
As for the matter of "election interference," Trump is choosing to run for the Republican nomination in order to try for a second term. No one is forcing him to do it. (One odd historical note: the date that Judge Chutkin has set for jury selection to begin for the "Jan.6" trial is March 4, 2024 which date, until Jan.20, 1937, was that of the Presidential Inauguration.) If his schedule is getting clogged with dealing with criminal indictments, all of which have been charged by majorities of Grand Juries, not the Biden Justice Department or the President himself, there is a very simple way for Trump to deal with those scheduling difficulties: not run for re-election. And oh yes, on top of the Four Federal Cases, there is the civil matter being brought by the New York State Attorney General [which seems to be coming back into the limelight], and the next slander case being brought by E. Jean Carroll.
Can't tell the players without a scorecard? MSNBC has a chart showing the major upcoming dates of trials, primaries, the election, and so forth (and I am sure that the either prominent stations do too), with which Trump has to deal over the next year-and-a-half or so. Daunting to say the least, even for someone with Trump's lifelong stamina for political and financial infighting and out-fighting (which is why, of course, I have predicted that at some point when things are really getting too hot on the legal stage, Trump will simply leave the country). Of course, the longer he hangs around, the harder that is going to be a practical possibility, including being able to get a significant chunk of his funds out with him. (As a matter of fact, I wouldn't be surprised if some of that funds transfer is already taking place, at the highest level of secrecy).
With the kinds of arguments Trump and Lauro are making one might be justified in thinking that they are already assuming conviction. A defendant who is innocent, or at least genuinely thinks he/she is innocent, doesn't spend so much time on arguments designed for an appeals court, not a jury trial, like that the indictments and subsequent trials come at very inconvenient times for someone who is running for President. Of course, one other solution for the not-enough-time-for-my-lawyers-to-prepare argument, other than to quit-the-race, is to get more lawyers. Well, there are two problems with that suggestion: one is that he would have to find even more money to pay lawyers than he is already able to raise from his benighted supporters. The other is that he is likely running out of legal options in terms of lawyers having the expertise needed to represent him.
Lastly, it appears as if one of Trump's arguments was that he was simply taking his lawyer's (or lawyers') advice. Well first of all, there were plenty of lawyers in various parts of the Administration, with direct access to the President, from Bill Barr on down (or up, depending upon your point of view) who at various stages of the development of the plot-that-led-to-Jan.-6 (see Cassidy Hutchison's testimony) told him that what he was contemplating doing was totally illegal. But, one of his principal advisors in the whole post-election circus was of course Rudy Giuliani, who took the other "it was stolen" tack. (That would be the same Rudy Giuliani who in 2016 leaned so very hard on James Comey to listen to the right-wingers in the New York City FBI office and issue the "there's-something-fishy-with-Hillary-Clinton's-emails" statement, soon to be retracted, but too late to save the election for her.) But possibly critical in terms of the Trump defense, part of whihc is "I was operating on the advice of my lawyers," as it turns out, Rudy is a well-known, and apparently often self-proclaimed, drunk. Where does this lead in this case (which is getting "curiouser and curiouser," indeed, like an Upside-down Alice in Wonderland)? Well:
"[as] attorneys and witnesses familiar with the matter told Rolling Stone, 'Smith and his team are interested in this subject because it could help demonstrate that Trump was implementing the counsel of somebody he knew [emphasis added] to be under the influence and perhaps not thinking clearly. If that were the case, it could add to federal prosecutors' argument that Trump behaved with willful recklessness in his attempts nullify the 2020 election.' "
And so --- curiouser and curiouser indeed, in terms of Trump's lawyers and his own lawyering. As for now, we shall leave the matter in that set of very odd places.