Friday, April 21, 2023

Axiomatic Law

We start with that axiom. And for reinforcement we recall the published report of the deposition Trump gave in Ms. Carroll's lawsuit.  Shown a picture of his wife at the time of the alleged assault, he identified her as Ms. Carroll, who he insists is "not his type" (as if rapists have a "type").

If you're a lawyer, you can't put that client on the stand.  So what happens now?
True, the burden of proof is on the plaintiff. But that's a very heavy lift for the defense shift that burden back onto the plaintiff if you can't put on a defense. There is no 5th Amendment bar to testifying in a civil case. The judge can (and will) instruct the jury on the criminal defendant's right not to say a word in court and force the prosecution to meet the burden of proof "beyond a reasonable doubt." Plaintiff's lawyers only have to show "a preponderance of the evidence," and if the case is primarily "he said/she said," that preponderance is the plaintff's if the defendant is mum.

But you can't let Trump testify.  That would actually be worse.  Witness the identification of Marla Maples as Jean Carroll.

Now we move to our thesis:  that Trump has "gotten away" with so much in his lifetime.  First, he hasn't.  He's just been to small to notice.  Sure, Trump pumped himself up slapping his name on everything he could, usually in very large letters.  And he bragged about "The Art of the Deal," a book he didn't write and didn't even come up with the title for.  But he's always been all hat and no cattle.  To imagine he's both super powerful and super clever at avoiding accountability is to also imagine Elon Musk is a computer engineer and a rocket scientist and a geologist/mechanical engineer (The Boring Company) rather than a 51 year old boy-child with too much money, and a gift for screwing around with it that's not quite as bad as Trump's.  Who also wouldn't have any money if not for Daddy, but who has a greater gift for frittering it away while hiding his profligacy and perfidy behind a screen of braggadocio.

No, Trump hasn't gotten away with anything because Trump isn't anything.  When his father was still alive the Justice Department extracted a settlement of violations of the Fair Housing Act.  Roy Cohn probably didn't get Trump out of trouble so much as he convinced Trump he'd gotten him out of trouble (there are lawyers who are very good at that, from the slimy Roy Cohn's to the most admired or corporate law firms). I'd guess Cohn fooled Trump more than he saved him, and that Trump was never involved in so much as nuisance lawsuits.

Besides, as Dominion just proved by being the exception, civil suits against big companie usually don't have enough funding behind them and enough determination to succeed. They usually wither and die when the defendant is a major corporation, or just a rich businessman.  Big companies don't just have the legal firepower, they have the deep pockets.  Trump never found himself on the buzzsaw end of a suit by, or against, a major corporation.  He stiffed contractors and people who worked for a living.  They didn't have time or money for lawsuits (which is what liens are for, anyway).  Trump still talks a very big game, but there's only a small child behind that curtain.  A very small child, with very small hands.  Nasty temperament, but not exactly a street fighter.  He was always punching down.  Now he's punching far above his weight class.

Trump has never faced the legal power of the state.  They pay their lawyers to be in court.  It doesn't cost them extra, or eat up their bottom line, or make the shareholders wonder what the wisdom here is (Smartmatic is threatening to get its pound of flesh AND an apology because Dominion set the bar so high.  Shareholders will be satisfied with nothing less than MORE!).  Government lawyers are what the government does.  They're on the same side as the judges, and the judges know it (believe me.  I've seen federal lawyers in criminal court).  Trump is not going to intimidate anyone.

Just as Trump has never faced the legal power of the state, so Trump has never faced a personal civil suit by a determined plaintiff who can afford the costs.  Ms. Carroll's power is that she has the money for a civil suit, and she's suing Trump individually.*  Not his company, but Trump alone.  Trump really doesn't know how to deal with that.  Let's be honest, too: Trump is facing this suit because Me, Too changed the social and legal landscape.  Back when this alleged rape occurred, no one would take Ms. Carroll's story seriously.  Trump was a Lothario, but it seemed mostly consensual (he had multiple wives, changing them they way other people change their suits).  Any "rumors" of what we would now consider appalling behavior was regarded as moths too close to Trump's money flame (and his self-promoting notoreity). Time, in that sense, has caught up with Trump.  But if he got away with it before, it's because we let him; and all of those like him.

Look at his latest stunt, trying to get the judge to "let him out" of being in trial for the Carroll case.  The judge sneered at the effort.  He doesn't care if Trump shows up or not.  Trump tried to turn his absence to his advantage.  Instead, he's already lost before the jury is selected.  He's been trying these cases in public.  That won't matter in the courtroom.  The door shuts as firmly on that noise as it did in Trump's face at his arraignment.  He didn't grandstand there.  He says he won't be in court to grandstand, or say anything, or say nothing, in the trial of Ms. Carroll's suit.  Good luck with that "legal strategy."

When I was a paralegal, I worked for a lawfirm that did insurance defense work.  Our clients were often companies, which meant we worked with designated representatives of the company.  And such a person always sat in court with our lawyers at trial.  We didn't want to go to court without someone representing the defendant.  I worked business litigation after law school: same rule applied.  You never want to be at the table without someone representing the defendant.  Trump's company is not being sued, but Trump wants his lawyers there without him.  The jury will get the message.  Trump will try to tie this case up in appeals, but if he doesn't put on a case at all (because he doesn't show), it's going to be very hard to win a reversal.  I mean, maybe you can prove the court shouldn't have done that, or should have done this.  But if you don't put on a defense, it's rather had for the appellate court to review the record and decide the error was fatal to the outcome.  It can be done, but on appeal you're already tying your hands behind your back and hopping on one leg.

On the other hand, you can't put Trump on the stand.  Period.  End of story.  So what are your options?

*It turns out Ms. Carroll's suit is being funded by someone else, which levels the playing field against Trump.  So he's lived long enough to create enemies as rich as he is, and willing to spend their money for others to pursue claims against him.  This, too, is because he has shifted from a nothin with a big mouth, to a someone others want a piece of; if only for the sake of justice.
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