Prosecutors in the case of Donald Trump's effort to overturn the 2020 election want to know if he plans to blame poor advice from his attorneys. But why do they care? The New York Times explains:
Defendants who pursue advice of counsel arguments waive the shield of attorney-client privilege that would normally protect their dealings with their lawyers. And, as prosecutors reminded Judge Chutkan, if Mr. Trump heads in this direction, he would have to give them not only all of the “communications or evidence” concerning the lawyers he plans to use as part of his defense, but also any “otherwise-privileged communications” that might be used to undermine his claims.
This strikes me as a pretty iffy defense in the first place, since there's mountains of evidence that Trump got plenty of good advice from the non-lunatic attorneys in the White House and elsewhere. He just chose to ignore any of the attorneys who didn't tell him what he wanted to hear.
But maybe it's the best chance he has. After all, blaming others is what Trump is best at.
The great thing about this is, that if he does plan to use it, the discovery he provides can be used as the basis for further investigation. A warning shot to Trump if he does intend to use this defense.
I’m assuming that he will use his impunity to simply not cooperate with discovery. It’s important to remember that the only consequence that Donald really fears is being sent to prison (especially on his own and without his Secret Service bodyguards). But no judge is going to order Trump imprisoned and certainly not without the Secret Service. So basically he is completely bulletproof.
He wouldn't be sent to jail without a SS detail. I think they could probably arrange for him to be restricted to one of his residences, or other accommodation as directed by the judge, however, with an ankle monitor and kept completely incommunicato except for in-person conversations with his lawyers -- pretty much as if he were in jail.
That would suck deeply for him because he couldn't be out campaigning or fundraising. It would derail everything. Not jail like for ordinary people, but it would focus his mind, I reckon. (Also, too, if he doesn't fundraise, his campaign and PAC can't grift the rubes, and then his lawyers don't get paid. I bet that focuses their minds as well.)
So he’s restricted to a huge, luxurious private club or to his apartment in Trump Tower. That’s light years away from the thing that obviously terrifies him. And who is going to enforce the other restrictions? If he doesn’t want to stop threatening witnesses and prosecutors, nothing short of threatening to lock him up like a real prisoner in a real jail is really likely to get his attention. That’s the meaning of having impunity. And his status as a former elected monarch is why he’s got it (and, of course, the fear of igniting something like a wave of terror byMAGA-killers).
IANAL, but can’t judges order telecommunications companies to not do business with Trump? I mean, regular prisoners are banned from having cell phone or internet accounts, and retailers are banned from selling things directly to prisoners too… that’s how we get situations where the prison commissary monopoly is charging $10 for a can of soda. Just ban Trump from having a cell phone, computer or private deliveries too, and put pressure on the telecoms and delivery companies to not service him.
I would assume that a judge could make such an order but it be extremely easy to circumvent since Trump could get limitless burner phones or borrow a phone from Don Jr. or Melanie or just borrow them from Mar-a-Lago workers. When you come right down to it, the power of a federal judge is sticking people in prison but that doesn’t seem to be possible with Trump.
The second variable is how quickly the MAGA-nuts recover their nerve and sense of impunity. Up until recently, nobody moved against MAGA-nuts even when they occupied state legislatures while heavily armed. I think that sense of impunity undergirded MAGA’s actions on January 6th. Which is to say that they felt they could do whatever they wanted without consequences.
The belated DOJ move against MAGA foot soldiers shattered that sense of impunity and I think that’s basically why the extreme right has tended to dial back on actual violence. And it’s why Trump’s prodding hasn’t resulted in the killing of anyone that he wants to see dead. The question is how long will MAGA be worried because when the shock of the January 6th prosecutions wears off, the chances of a bloodbath go way up.
But the attorneys he communicated with won't have the same impunity, will likely have better records of such communications and CAN be fined, sanctioned or jailed.
That’s certainly true. But it’s also most likely true that Trump really doesn’t care about what happens to his lawyers. What he cares about is getting back in the White House so that he can make his criminal cases go away, exact revenge on lots of people, and replenish his stockpile of money.
And it’s not clear to me that any of his lawyers would obey a court order to disclose evidence or to testify. Especially if Trump successfully incites violence against the prosecutors or witnesses (or even a killing or two). I think that would embolden Trump’s lawyers and give the other side something to think about (essentially the MAGA version of plata o plomo).
TFG has always used the courts as a weapon, stringing on opponents till they ran out of money or lost interest. Now that he is facing serious legal challenges, it turns out he really has very little idea about how the courts are supposed to really work, just like he has no idea how the presidency is supposed to work.
Not altogether surprisingly, "courts" and "lawsuits" are a couple of the many things about which he has said something like "I know more about ___ than anybody."
Don't forget using bankruptcy as a strategy to screw creditors over.
He's desperate to string this out and delay any actual trial as long as he can. If the extra discovery involved in using this defense might set back the trial date, odds are he'll go with it. Between that and casting blame at somebody else, it's just about the ideal trump move. OTOH, his current lawyers might tell him that claiming attorney-client privilege might take longer and he might not want to give that up. So who knows.
The chances are high that he will take this approach, because (a) his immediate, short-sighted assessment is that it shifts blame away from him, (b) he is incapable of long-term thinking, and (c) he will ignore any advice from his lawyers that it's not in his best interest overall.
George Santos would be a wonderful cellmate for Orange Jesus.
One can dream such pleasant thoughts given what is going on lately.
Trump's defence is based on two ideas:
1) Delay, hopefully until after the election.
2) Keep his supporters on his side and angry, so he can use them to terrrorise the court and the jury.
Apart from these, the legal aspects of what he is doing are irrelevant as far he is concerned. He knows on merits of arguments he can only lose, so he is not even trying to win on mertis.
What's the old saying? If the facts are against you, argue the law. If the law is against you, argue the facts. If both the facts and the law are against you, pound the table.
Trump has only one move: table-pounding. The tables in those federal courtrooms are really thick and heavy, though, as he's finding out.
This could get complicated. https://www.emptywheel.net/2023/10/11/twenty-five-the-trump-family-member-and-other-attorney-client-delusions/
More popcorn.
Trump's best chance is in getting some of his die-hard supporters on the jury. Facts will have little to do with their ultimate vote - they will believe whatever Trump says.
But in DC it may be possible to exclude Trump voters. He got 5.4% of the vote in 2020, so there is about an even chance that a random selection of jury members from the voting rolls would not include a Trump voter.
Conversely where other trials are held, Florida and Georgia, there could be a majority of Trump voters on juries. It will only take one to prevent conviction.
The trials may be long with a lot of testimony and lawyer BS but the outcome may be decided in jury selection. There is no reason to assume that jurors in a highly partisan political case would be objective.
This is an excellent point. I can’t see Trump being convicted in the Florida case because he’s got the judge in his pocket. That means multiple MAGA-nuts on the jury, a thumb on the scale for everything else, and a directed verdict of acquittal if the evidence is too strong for even the most dead-ender MAGA-nuts.
And, as you say, it just takes one MAGA-nut or one really terrified person on the jury to hang it.
Maybe. But remember it turned out that there was a guy on the E. Jean Carroll trial who described himself afterwards as a pretty hardcore Trump voter and he ended up voting to find Trump liable anyway. Given the scrutiny these cases will be under from both the media and political observers, and the fact that jury selection is going to be an epic process, I think it's going to be pretty hard for some stealth MAGA juror (or some hardcore Never Trumper for that matter) to slip through the cracks and then try to sabotage the deliberations.
In the FL case, Judge Cannon will definitely be a pain for Smith to deal with, though, no doubt about that. She clearly has zero shame about being called out as a pathetic partisan hack.
All he has to do is get on the jury to hang it. And I’m sure that the FL judge will make it as easy as possible. But you do make a good point about jurors. I think it’s possible that the evidence in the Florida case is so overwhelming that it might overcome the initial bias of even a dead end MAGA-nut. I have my doubts but I concede it is a possibility.
you couldn't see trump being prosecuted in the first place (no prosecutor would have the guts to charge him), yet here we are
But jury selection isn't random, there's voir dire. And I'm sure his lawyers will pull every trick in the book to kick off anyone they can who isn't a trumper. And they only need 1.
Expect hung juries in Georgia and Florida.
Steve
The RICO case in GA will be tough one for Willis, there's no doubt about that. It's hugely complicated. So you may be right there that we end up with acquittals or a hung jury. I think the classified documents case in FL is so open-and-shut that even a jury with Republicans on it isn't going to be able to avoid convicting.
"they will believe whatever Trump says."
There is zero chance that Trump will testify in any criminal trial, except perhaps in a sentencing phase while asking for mercy.
Also, very few MAGAts have ever actually seen Trump talk unfiltered or in person, so they may be surprised in the very unlikely event he does testify. They've only seen the burnished, Leni Riefenstahl-style propaganda loops of him striding around and speechifying that run on Fox or Newsmax or other MAGA media outlets (if they even show him that much any more). In person, he sounds like a jibbering idiot. Read that deposition he gave in the NY fraud trial. It was pure, uncut wackaloonery. Hardly the focused, stentorian fury they assume he projects.
His deposition in the E Jean Carroll rape trial also seem to have done much to convince the jury that he is liable.
Trump gets his lawyers to argue that he as president had no duty to support the Constitution, as opposed to preserve, protect and defend it,
https://www.rawstory.com/trump-wont-support-constitution/
and therefore the 14th Amendment doesn't apply to him.
What defense does he have that isn't iffy?
I mean really.
He doesn't have any actual defense, iffy or otherwise.
But he has a core of supporters that he can use to terrorize officials and jurors.
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