Emptywheel Sums It All Up For You

 Trump has filed “PRESIDENT TRUMP’S MOTION TO STRIKE INFLAMMATORY ALLEGATIONS FROM THE INDICTMENT AND MEMORANDUM IN SUPPORT" (that’s the proper title, not a screaming tweet). Yes, it’s pretty much hot garbage aimed at striking almost the entire indictment because it’s “prejudicial.”

You could analyze it line by line, or you could let emptywheel get to the heart of it. But first, this aptly describes the substance of the motion:

Trump also uses outdated and invented crowd numbers to claim that just a fraction of his mob was part of the mob, focusing just on the mob that entered the Capitol and not the one that besieged it, another part of this motion that might invite sur-reply. 

In another place, Trump promises a motion in limine to eliminate all reference to the violence committed in his name, because the sheer violence of it will distract the jury.

That’s the heart of the matter. Trump doesn’t want the violence of J6 presented to the jury because it would unfairly prejudice him. Not really an irrational argument in a criminal case; but the argument made here is not really a very good one.

For instance, the prosecution claims protesters were “extraordinarily violent and destructive.” Doc. 140, at 11. Even if marginally relevant, which it is emphatically not, the danger of “unfair prejudice, confusing the issues, [or] misleading the jury,” would far outweigh any probative value. F.R.E. 403. The fact that the prosecution even suggests that such inflammatory claims could have an appropriate place in the trial of President Trump only underscores the unfair and malicious way the Special Counsel is pursuing this case on behalf of the Biden Administration against its leading political opponent, President Trump.

I’m not a criminal lawyer, but even I think there’s got to be a better argument than that for a court of law. Questions of “unfair prejudice” and “misleading the jury” have definitions that aren’t even presented here (the motion runs for 17 pages).  This motion and memorandum don’t raise issues of law. It just makes more baseless allegations via conspiracy theories:

The fact that the prosecution even suggests that such inflammatory claims could have an appropriate place in the trial of President Trump only underscores the unfair and malicious way the Special Counsel is pursuing this case on behalf of the Biden Administration against its leading political opponent, President Trump.

I’ve seen better legal arguments in pro se pleadings by non-lawyers. They might as well just add: “UNFAIR! ELECTION INTERFERENCE!!”

Without the legal discussion, you aren’t making a legal argument, you’re just squirting squid ink. And why would they be doing that?

Because it’s a theme in all of these recent motions (which, also, is not a bad thing per se, but certainly revelatory):

Not just his motion to strike, the promised motion in limine, and all his other efforts to, like the Apostle Peter, deny the mob he has made his religion are gimmicks, just efforts to wish away abundant evidence against him. 

It all comes off as rather desperate. 

And as you consider the flop sweat coming off Trump’s motion to strike, consider this: DOJ must have provided, in discovery, the evidence they plan to use to show what Trump’s mob did and that they did it because of him and his lies. DOJ has repeatedly said they’ve provided the evidence they plan to use at trial. Among the things Trump must have in his possession are the videos that show Danny Rodriguez went directly from hearing Trump’s speech to almost murdering Michael Fanone, and others responded to Trump’s Pence tweet by serving a critical role in opening a second front of the attack on the Capitol and breaching the Senate. Trump has — must have!! — seen the evidence about his mob DOJ intends to use at trial. And his response is this blubbering effort to wish his mob away.

There is evidence that is unduly prejudicial, and what constitutes such evidence is defined by rules and case law. The basic idea is that such evidence will just inflame the jury’s emotions, rather than lead them to sound judgment. But establishing that definition requires a carefully focused argument. This motion is not that argument.

I agree with emptywheel; this motion reads as desperate as flop sweat. If Trump can exclude the evidence emptywheel (reasonably) conjectures that the DOJ has, he can win the case.

And if he can’t, he’s screwed.

He’ll need better arguments than this to win. IMHLO.