Friday, September 30, 2022

In A Nutshell

My point, I mean. Not Tribe’s, not Kirschner’s.

When news about Trump in court comes, I tend to look first at Popehat because he is a practicing trial lawyer, and because he’s been both a prosecutor and defense counsel. I’ve known a few prosecutors in my brief but unspectacular legal career, and they were stunningly confident in their abilities. Not because they were brilliant lawyers, but because the judges were generally on their side. They were, I mean, used to winning; and to holding their opponents, in criminal or civil trials, in contempt. Trial lawyers I knew, the ones in private practice, saw it as an effort, aware of the pitfalls and dangers of mistakes. Prosecutors saw it as a crusade because they went to court in cases they would win, or because they were the government and had to do the job. But mostly they expected to win, because they saw their opponents as people who deserved to lose. Even when it lost (which was rarely), the government couldn’t lose. Real people, the ones private lawyers represented, could lose a great deal? Government? Nah.

Oddly, most trial lawyers didn’t take their cases personally; but government lawyers did. They wanted to punish the criminals. They wanted their pound of flesh, their measure of justice.

It’s a generalization, of course; and hardly wholly accurate. But a lot of the former prosecutors on Twitter certainly seem to take the cases of Donald Trump very personally. Any minor victory he achieves in court, however insignificant, is a major affront. But is it?

Compare the reaction of Laurence Tribe, above, with that of Steve Vladeck, to Judge Cannon’s latest ruling:
Tribe reacts as if someone had assaulted his dignity; Vladeck is measured and reasonable. Part of that is that Vladeck does appellate work for clients suing the government (he knows what a David v. Goliath fight is.). If Tribe was ever in any court, it was a long time ago. Part of that is, despite this minor advance for Trump, the DOJ still has the whip hand. Besides, this civil case is moving rapidly (somebody on Twitter said the case will now be moved into 2023. So? Unless your idea of court cases is one-hour TeeVee dramas, most civil cases take years to resolve. That’s normal.). It also doesn’t much matter anymore. My image of this case now is a very adult-sized figure labeled “DOJ” effortlessly holding a furiously struggling child-sized Donald Trump with one hand, while building a serious weapon of a criminal case with the other.

The DOJ has already eviscerated Trump’s case (it is his, not theirs) in the 11th Circuit. They are building a criminal case, and nothing Trump does now in Florida or Brooklyn really matters to that case. He’s not slowing down that criminal investigation; he’s not stopping it. If anything, he’s keeping it in the public eye. He’s reminding the world he took 200,000 pages of documents (no, he didn’t; it’s a Trumpian exaggeration. But why does he think that helps him?). This drags on into 2023? That’s only costing Trump. He’s paying for the SM and, eventually, the vendor to review 200,000 pages. (Whether he’s paying his lawyers is their problem.)

Pass the popcorn.

And he’s cementing the idea he stole government documents, which does DOJ’s job for them when it comes time to sell the criminal case. This is no longer a banana republic conspiracy against a political opponent. This is now a serious criminal matter, thanks to all the publicity for that idea Trump is generating. He has one judge on his side who is braiding the rope he’s going to use to hang himself. He’s literally paving the way to his own prosecution.

Where’s the beef?

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