Legal Cases Travel On Their Stomachs

From its first substantive paragraph, the opinion stings, asserting Trump’s “alternative narrative” that the government charged him for “publicly disputing the election outcome” is an “improper reframing” of the indictment belied by its express words. 2/ pic.twitter.com/UPsFbChQLg

— Lisa Rubin (@lawofruby) August 3, 2024

Trump is paying a great deal for lawyers, and I can’t decide if they are bad lawyers (he’s certainly not getting the best available), or if he’s forcing them to make bricks without straw. Or mud.

I think the answer is: “Both, and a little bit of neither.”

Chutkan then turns to Trump’s purported proof of the government’s discriminatory intent, finding he misinterpreted and/or overread articles in the @nytimes & @WashPost that don’t prove DOJ prosecutors or President Biden were out to get Trump, as he often recites. 4/ pic.twitter.com/0GQYVPNI8U

— Lisa Rubin (@lawofruby) August 3, 2024

A) Never bring up an argument before the judge which that judge has already rejected. Leave it for the appeal. B) if you’re relying on newspaper accounts, how do you plan to get around the hearsay rule? How do you even establish the reporting is valid, without presenting testimony from the witnesses? Besides, if your argument is based on newspaper articles, where the hell did you get your law degree?

I was a legal assistant for three years before I entered law school. I was reflecting on that, realizing that my work involved paying close attention to the facts (and the arguments they supported; or didn’t), because I wasn’t qualified to make arguments on the law at that point. You may think legal arguments turn more on law than facts, but even the wholly-invented presidential immunity of John Roberts is determined by what is an official, and what is an unofficial, presidential act (a sort of perversion of the more purely legal “penumbral right” to abortion, which attenuates as the pregnancy progresses). That determination is based, ultimately, on facts, and what those facts mean in the law.

Facts matter. Much of a civil case is spent in discovery; trying to determine what the facts are, and which ones best serve your clients interests. But conjuring facts out of gossip? Even gossip that has gotten into print? I can’t fathom it.

Even as a legal assistant, I’d know better than to make any argument in court based on newspaper articles. I honestly can’t imagine ever trying it among the lawyers, nor as a lawyer myself. Not even in desperation (if you’re ever that desperate, you find a way to settle. Or you find a better argument, on sounder legal or evidentiary grounds.).

Especially…

Over the next several pages, Chutkan further explains why Trump cannot establish the even more demanding test for vindictive prosecution, which requires proof that the government actually or likely punished the defendant for asserting his legal rights. 6/

— Lisa Rubin (@lawofruby) August 3, 2024

...when you can’t even make an argument in the first place.

And finally, she denies his request for an evidentiary hearing to show the government is lying about its investigation. But to get more factfinding, Trump would have had to show her at least “some evidence tending to show” selective prosecution. 8/ pic.twitter.com/DwdMOAhWZu

— Lisa Rubin (@lawofruby) August 3, 2024

Legal grounds intertwine (as they always do) with factual ones. But the facts needed to support a legal conclusion are usually known by lawyers.  What Trump seems to be asking for (and not getting) is a “fishing expedition.” That is, asking the court to force the prosecution to submit to cross-examination while Trump tries to prove a groundless allegation. Basically: they’re guilty, Trump is arguing; let them prove their innocence.

So now, the parties move toward their Aug. 9 deadline for a joint status report with both of Trump’s remaining motions to dismiss resolved within a day of the case resuming. FIN.

— Lisa Rubin (@lawofruby) August 3, 2024

As best I can figure, Trump’s lawyers keep making this argument because he thinks delays will win him a dismissal (as it might in a civil case). But governments don’t run out of money; although Trump probably will. I also can’t imagine they think this, in concreto, is a sound legal argument. They are doing it because their client is calling the shots.  True, the lawyers (never Trump) came up with the immunity defense which John Roberts and co. bought. On reflection, it appears Trump’s lawyers were better tapped in to the Federalist Society/Heritage Society psychos than the conservative lawyers like Luttig and Conway were. But even the Supreme Six didn’t give Trump the absolute victory he needed, and the rise of Kamala is threatening the political victory Trump was really counting on. 

Trump is back in court this month before Chutkan, and before the appeals panel in Carroll.  His odds are not good in either court, and he’ll be back before Chutkan in September, and probably October. He has a sentencing hearing in September, with more legal arguments to make there, thanks to the Supreme Six. That’s more lawyers’ meters running up the dollars. His campaign is already on a shoestring, and that’s hurting him because he doesn’t have the GOTV ground game Harris inherited and bolstered with record fundraising efforts in just a few weeks. Harris has $500 million to spend. Trump will need that much for lawyers between now and the end of the year. And what will a criminal sentence do to his support? And what will the appeal of that ruling cost in the short term? As well as the appeal of the Florida case? And the ongoing appeal of the Georgia case? And the fraud case? And the Carroll verdicts?

Meters are running. And fundraising is running out of time; at least.

I’m still not sure Trump v US won’t yet be a Pyrrhic victory.