Motion Practice Is Trial Practice

Delay, disinform, then dismiss.

That may be the Trump strategy, but it’s not what is going on in DC. Florida is another matter, largely because Loose Cannon is utterly incompetent and so far over her head bottom is up. Way up.

What’s going on in DC is the reason this trial didn’t start in October, and a lot of what trial judges actually do (they don’t sit for that many trials): motion practice.

Now, granted, I have no real criminal practice experience, and no expertise in First Amendment jurisprudence, but I’m fairly confident Trump isn’t laying any serious groundwork for an appeal that’s going to warm the cockles of the hearts of 5 Supremes:

Trump intends to take this gag order to a partisan Supreme Court where several Justices are already raring to forcibly protect the kind of violent threats that Trump specializes in. Heck, if Trump succeeds as well as he might, his appeal of this gag could solve the problem with the “mob” part of the indictment which I’ve noted.

The post referenced in the last sentence is the one I started with. I’ll be referencing both of them here.

But while the Supremes have proven themselves open to cases where football coaches were not fired for not being banned from praying in public, they’ve shown no interest in ever saving Trump’s electoral bacon, and I don’t see them pulling his criminal fat out of the fire. Not without better arguments than his trial lawyers are making.

I will agree Trump’s appellate lawyers seem slightly more competent in framing legal arguments, but appeals courts look askance at arguments not presented first to the trial courts. That’s one reason Trump has filed so many Motions to Dismiss (MTD).  He wants them all in the record for an appeal (There is a certain amount of appellate practice from a final judgment that is “throw it against the wall.”) Appeals are efforts to correct errors in the trial court, not just go above them and see what else works. So Trump’s appeals are constrained by the arguments made before Chutkan, in this case.

And those arguments suck.

For one thing, a Motion to Dismiss must accept all the allegations in the indictment as true, and still establish there is no crime involved, or insufficient evidence thereof. Usually such motions are filed after all discovery has been done; and seldom do they succeed. But to return to my first point, such motions are as common as fleas on a dog. It would practically be malpractice not to file one. It’s not a delay tactic, it’s trial practice. Unless you’re a trial lawyer, or work for one, you’ve never seen a trial except on TeeVee, which bears as much resemblance to reality as does a fable with talking animals acting like humans.

So basically, with the exclusions I mentioned, everything you know is wrong. About trials, anyway.

Marcy Wheeler, God love her, is not a trial lawyer.

Again, even if this goes to trial in March as currently scheduled, Trump needs only persuade one voter. If he can use these court filings as a means to delay that trial and as campaign props to win the election, these weak points won’t matter.

These motions aren’t likely to delay anything.

The question before the court is that question of the allegations, not when Mike Pence quit the race and Trump filed his response to the DOJ motion to enforce the gag order. Motion practice, even when it is about facts at issue, is always first and foremost about legal issues. The law on Motions to Dismiss (or Strike, a separate Motion Trump filed) is fairly clear, as is First Amendment law on incitement. And if memory serves, the DOJ didn’t charge incitement, probably for that reason.  Trump, IOW, is spraying squid ink, something even the Supremes won’t be impressed with. Creating some new First Amendment doctrine for some clown who’s already disappeared from view is a very different matter from bail in out Trump in criminal court, especially on an issue the government didn’t charge.

The question before Chutkan is the sufficiency (first) of the Motions. Creating challenges to charges not made doesn’t create a record for appeal that is any more persuasive there than in the trial court.

I’m getting really tired of the extra-legal legal analysis coming from non-lawyers and lawyers who are just paid now to have opinions that draw attention. There’s nothing unusual going on in Chutkan’s court except that such a high-profile defendant has some very bad lawyering being done for him.

And the fact a lot of people think that since he hasn’t been tried and convicted within 90 minutes, it’s a gross miscarriage of justice.