I have serious doubts that Smith can convince a unanimous jury that aggravated Trumpiness is a felony. Unlike the grand jury, Trump’s jury at trial will hear from lawyers for the defense — not just the prosecution. Jurors will probably hear that Trump only did what his lawyers told him to do; that he never acted on the craziest or most dangerous ideas of his advisers; that he urged his supporters to be peaceful and law-abiding. None of this will be any truer than any other Trump story, but it needs to sway only one juror to give Trump a hung jury — which he will call an exoneration.
Unlike TeeVee trials where lawyers do all the dramatic testifying because the clients/defendants are bit players and not the Stars, juries don't hear from lawyers in trials.
(I remember, vaguely now, watching a clip from "Matlock" back when it was still on TeeVee. The clip was played after lunch at a CLE, in the period when everybody wants to skip the rest of the schoolday and go for a nap. It was played as a joke, as Andy Griffith waved his arms and shouted and...testified. Instead of asking questions of a witness, he testified. And when challenged by opposing counsel that he had no evidence for his claims, he shouted louder and waved papers furiously in the air: "OH, I'VE GOT EVIDENCE! I'VE GOT EVIDENCE!!!" A roomful of tired, bored, sated lawyers laughed heartily at the ridiculous spectacle.)
The jurors in Trump's trial may, or may not, hear many things. "Aggravated Trumpiness" certainly won't be one of the charges, but pass over that to the imagined defense counsel's presentation. Jurors will only hear "Trump only did what his lawyers told him to do" if his lawyers testify to that. John Lauro can't say that in court the way he can on Meet The Press. And since most of those lawyers are unindicted co-conspirators, at most they are likely to plead the 5th, leaving any such testimony about that matter to: Donald Trump. His lawyers certainly can't do it.
Remember the E. Jean Carroll trial? Trump ran off to Ireland so he's be at no risk of being called to the stand by Carroll's lawyers (no 5th Amendment privilege in civil cases). Trump's lawyer tried to put on a case without witnesses (who did he have besides his client?), to no avail. Expect the D.C. criminal case to go the same way.
"[T]hat he never acted on the craziest or most dangerous ideas of his advisers"? Who is going to say that? Not his lawyers. Again, the only person who can make that claim is: Trump. Nobody can say it for him. Hearsay and best evidence rule both require Trump testify, or not make either of these defenses. "[T]hat he urged his supporters to be peaceful and law-abiding"? Yeah, Jack Smith already has that one. Trump isn't being charged for insurrection. He's being charged for what he tried to get Mike Pence to do, and the "alternate electors" schemes, and even the phone call to the SOS in Georgia. Do try to keep up, David.
And the one juror hope? Trump had a supporter on the Carroll trial. But that juror said he had a duty to follow the evidence and the law, and so he did. It was a unanimous vote for the verdict. Don't hang your hat on a TeeVee jury, either. Reality will let you down every time.
In the end, this is his pathetic argument: "What if it don't work?"
I fear that Smith’s latest charges might do less to bring Trump to justice than to make his critics feel better about ourselves. We want to think that the United States would never let a power-mad narcissist get hold of the presidency, then lie and connive to hang on to it — and that, if that somehow happened, we would darn sure make him pay for the offense.
But only a few words of that sentence really matter: make him pay. If these charges don’t stick (just as the impeachments didn’t stick and the Steele dossier didn’t stick), then Trump won’t pay any consequences at all, because such consequences as ignominy, embarrassment, loss of respect and the harsh judgment of history mean absolutely nothing to a man without a conscience.
Well, if we the people don't try, if we don't attempt this in our legal system (neither impeachment nor the Steele dossier involved the justice system), then Trump certainly won't pay any consequences at all. There is no risk of success without a risk of failure. But fear of failure means there can be no success at all.
Trump's never faced a criminal trial. As it stands he faces three, and probably four, soon. Let's just see how that shakes out, shall we?
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