Wednesday, May 31, 2023

Two Things Can Be True At Once

It can be correct that journalists are being played. But that’s not just because they can’t distinguish what they know from what prosecutors know; because the lawyers on a case ALWAYS know more about it than even the clients know.

That’s because the lawyers are uniquely placed to know the facts and the law of the case. But that means they know the law that applies to the facts, and what those facts and those laws (and “laws” here means statutes, common law (although there is no common law in the U.S., but there is. It’s complicated. And then there’s case law, both guiding (in general) and directly relevant) mean to each other in prosecution or defense; but that should be “and,” not “or.” You have to think both sides. 

And you have to know the basic tenet of law: “Change the facts, change the outcome.” Sometimes one minor change in fact is meaningless; sometimes it changes the law that applies and how it applies. How do you know when the latter happens? Go to law school. Get a law degree. Practice law. And try your case in court. And see how it turns out. One judge may say the change in facts makes a significant difference in what law applies, and how. Another may say it makes no difference at all.

This is why we have trials; and appeals.  And legal commentators who talk like fools; and those who are careful not to draw hasty conclusions. And reporters who want the answers to be simple and straightforward. And why we can’t have nice things.

And journalists imagine they understand what a criminal investigation is doing because they know there’s a tape where Trump says something they think is incriminating? Or something?

They have no idea. For example:
This is useful evidence for the narrative to the jury; but it’s not legally dispositive, or crucial.

Trump could not legally declassify documents, whatever he says. And the court would block any “evidence” that he could, and instruct the jury in the charge to ignore any claims to the contrary. This tape could be used to show Trump knew he hadn’t declassified the documents; but that would go to the veracity of his defense, not to establish his guilt.

I should say “attempted defense.”  Trump will try to put that defense into play.  This will help blunt whatever he gets in around the judge’s orders. And it will show Trump knew what he had and knew that he had it.  That’s really more important to the prosecution. If only because it establishes a violation of the Espionage Act:
e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
That’s not a dispositive citation because the case law can alter the outcome, and we don’t know the facts even of this tape. We don’t know what the prosecutors know, plain and simple. So when you get this: That is, a lawyer on TeeVee discussing a case he/she is not involved in. I’ve worked on cases where other lawyers discussed what the case, when they had no idea what the facts, and so the applicable law, was. Or what we needed it to be for our client (yes, it works that way, too). Lawyers on TeeVee are pretty much talking out of their ass. Not always, but take it with a large amount of salt. They are trying a case that isn’t in court yet, on TeeVee. How much do you think that’s worth now? Trump’s lawyer is on TeeVee because…well, I don’t know why. Because Trump wants him to be? Probably. Think back to O.J.’s “Dream Team” ( if you can). They tried their case in court, not in the press. They did a very good job. Trusty shouldn’t be in front of cameras, either. He should be talking to his counterparts at the DOJ, not on TV sets and sending letters to the AG (a. pointless and even revealing (of weakness) act). But even then, he could win for his client. It all depends on the courtroom. Nothing else matters.

Trusty won’t answer the questions because he shouldn’t. There are laws and legal ethics involved. He really shouldn’t be in front of that camera.  Even what he says is trying the case on TeeVee. Which is useless. As is breathless reporting about the investigation “accelerating” or “taking a new turn,” or any of the other legal reporting cliches.

And it really, really, REALLY, doesn’t matter what gets reported or what TeeVee lawyers say it means. Whatever reporters know, they don’t know what prosecutors know. The best commentators limit their comments accordingly. And prosecutors don’t tell reporters everything they know for the same reason Jim Trusty evades questions on CNN. 

The cases won’t be decided by polls or tweets or ratings. They will be decided by juries, in courts of law. Everything else is persiflage.

A belated example of what I mean:
Investigators have several recordings. We have a few minutes of one. We know far less than they do. And a little knowledge is always a dangerous thing.
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