Monday, August 28, 2023

Pounding On The Table

After today's hearing, all I can say is: Good luck with that.  Chutkan has already presided over a number of J6 cases, where all manner of mad defenses have been raised.  I expect her to swat this one like a fly.  There's no immunity argument because: His actions, then, weren't within "course and scope" of his office; hence, no immunity.
In a legal analysis published by The New York Times on Monday, New York University Law School professor Burt Neuborne walks through how the 2011 opinion affirmed that proving willful blindness to the falsity of one's words and actions is legally equivalent to proving someone's consciousness of guilt.

In one particular relevant passage in the ruling, Alito argued that "many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances."

As for how this would apply to Trump, Neuborne argued that testimony from multiple former Trump administration officials and campaign officials provides a track record to show that Trump had been told again and again that he had legitimately lost the 2020 election.

Neuborne concludes that "while this argument is not a slam dunk, there’s an excellent chance that 12 jurors will find, beyond a reasonable doubt, that Mr. Trump hid from the truth by adopting willful blindness."
And then there's the problem of how he presents such evidence:
"Trump himself would be the logical witness to his own innocent beliefs," wrote Lubet, a professor emeritus at the Northwestern University Pritzker School of Law. "Testifying, however, would carry many risks for him. To start with, upon voluntarily taking the stand, Trump would waive the Fifth Amendment’s protection from responding to questions whose answers could be self-incriminating, thus exposing himself to cross examination on every aspect of the charged crimes. He could not refuse to answer questions, as he did over 400 times in a deposition taken in the New York attorney general’s civil suit concerning his business practices."

"The result would likely be devastating," Lubet wrote. "At a minimum, Trump would be questioned about every false statement alleged in the indictment. If he denied making the claims, there would almost certainly be prosecution witnesses to contradict him."

The former president's other key defense -- blaming his alleged crimes on advice he received from his lawyers -- could also backfire.

"Mounting an advice of counsel defense, for its part, means waiving attorney-client privilege," Lubert wrote. "In other words, John Eastman, Rudy Giuliani and the entire 'gaggle of crackpot lawyers,' as Mike Pence called those who advised Trump, could not claim confidentiality if subpoenaed by the prosecution to testify against their erstwhile client."

Those lawyers have either been indicted themselves or have been identified as unindicted co-conspirators, so they could assert the Fifth Amendment themselves and undermine Trump's defense, and even if his attorneys and former aides were willing to testify on his behalf, much of that would be impermissible as hearsay.

"In the end, Trump will have to deal with the key accusation in the indictment: 'Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew they were false,'" Lubet wrote.

"For once in his life," he added, "Trump cannot count on talking his way out of it."

Yes, that's addressing a different defense, but what evidence can Trump present of a conspiracy between Biden and the House Democrats to...use Hunter Biden?  Selective prosecution?  Most legal experts agree Hunter wouldn't be facing these charges at all if his father wasn't POTUS; much less be the subject of a special counsel investigation (the same special counsel who screwed the pooch so badly on the plea deal the judge wouldn't accept it).  Yeah, that dog won't even hunt.  But the questions of "best evidence" and "hearsay" behind the analysis above apply to the "Hunter Biden defense," too.  Except that defense isn't even a "Hail Mary."  It's just a wild attempt to appease an ignorant and belligerent client.  It won't run into problems of how to present it, because I expect Chutkan to limine it out before trial.

So Lauro can pound the table some more. 

Nah; it's for the client (been there, done that. Never with a client from the depths of hell like Trump, but trust me, Lauro is making this case this way because he's got either mud nor straw nor any way to dry the bricks.) Thomas doesn't enter into it. DOJ laid out an entire calendar for pre-trial motions, limine practice, and jury selection, prior to a January 2, 2024, proposed trial date. I'm confident the judge has a similar calendar in mind, with trial ready to begin opening arguments on March 4, 2024. Remember the announcement from the bench is one thing, the signed order another. I expect the signed order to have a calendar attached.
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