Since Trump was indicted in the Mar a Lago documents case, I have been trying to imagine what sort of defense Trump’s lawyers can present. The prosecution will call witnesses, enter documents into evidence, enter audio and video recordings into evidence, and in general present formally the case with which we are now quite familiar. Eventually, the prosecution will rest and it will be the turn of the defense.
Trump’s defense, such as it is, seems to be that the
Presidential Records Act gives him the legal right to take and keep any
documents that he came in contact with during his presidency. But since that is
the exact opposite of what the Act actually says, it would not go well for the Defense
if they were to present as a witness a supposed expert on government
legislation who allow attempted to argue for that claim.
Then what? Trump can argue that he did not understand the
Presidential Records Act and mistakenly thought that authorized his behavior
with the documents. He can argue that he did not realize there were still
documents at Mar-A-Lago after his employees responded to the government subpoena.
He can argue that as former president he had an absolute right to do with the
document anything he chose to do.
But the only way in which any of these claims can be entered
into the trial is for Trump to take the stand and assert them and that would
open him up to cross examination, which would be a disaster!
I think it is entirely possible that Trump’s lawyers will
simply rest after the prosecution finishes presenting its case. That, after
all, is what Trump’s lawyers did in the E. Jean Carroll civil case.
It will be interesting.
20 comments:
Can’t offer an expert on the law — that is done in jury instructions and would interfere with the role of the judge.
Not a lawyer, but IMO, Trump doesn't need to take the stand for this supposed defense. Defense council can argue via asking witnesses if they believed Trump believed the PRA applied to everything; if Trump personally curated the box's contents and knew classified documents were mixed in with his personal items; and that when moving the boxes after the subpoena, it was to hide the personal items for fear they would not be returned.
All bogus in fact, but a reasonable doubt excuse for a Trumpist juror to vote acquittal.
Council -> counsel.
I suspect the defense strategy will be to delay as much as possible. They will file motion after motion in an attempt to buy time. The Hon. Aileen Cannon will play a major role. Will she repeat her earlier performances, or will she stick to the court's famed "rocket docket"? Her initial order to defense counsel to apply quickly for security clearances is a good sign.
Those opinions of the conservative 11th Circuit reversing her earlier judgments were brutal. She had to be humiliated. She must be aware that she will go down in history no matter what she does. Let's hope she has enough self-respect not to be Trump's tool.
I do not believe that defense lawyers can ask third parties what Trump's opinions were. That would be hearsay evidence. They can ask what Trump actually said to them if indeed they heard him say it but that is all.
I am ignoring Trump's growing legal troubles and hoping he is forced into hiding on a tropical island and condemned to golf in the wind on the same 9 holes until he dies of disappointment.
I am paying more attention to Cornel West and prophetic justice than having faith in the American justice system to finally deal with Trump. An interview with Chris Hedges from June 17, 2023 is particularly good view of why prophetic justice is so different from normal American procedural republic. Here is a link: https://www.youtube.com/watch?v=CedmrfofTi4&ab_channel=TheRealNewsNetwork
Hedges is himself an advocate of prophetic justice through his journalism. Charles Taylor is a promoter of this philosophy in religious form, and maybe Raymond Geuss advocates for a more secular version of prophetic justice. Other non-Rawlsian philosophers may also fall into this category of social critic, and I am certain by observation that Cornel West is playing with this political hand in the 2024 Presidential election.
What distinguishes a philosopher of prophetic justice from other theorists of justice? Cornel West always introduces himself as a combination of a socially destructive "gangster" and a much more benevolent "Jazz man" who can improvise and charm any audience with his creativity. What John Rawls actually published was always the idealistic writing that expressed a vision of philosophy as based on a transcendental "purity of heart." What angers radical philosophers about Rawls on justice is that he got away with hiding all the real impurity of heart behind the mask of pure procedural justice and the procedural republic with no identity diversifying its justice. So I argue that the criterion distinguishing philosophers of prophetic justice is that their work is primarily a dialectic between purity of heart based methods emphasizing idealism and a rational system of law and impurity of heart based methods more oriented to the realism of individuals in their unharmonious diversity which undermines systematic law. That is why I want to pay more attention to Cornel West and his black prophetic fire than Charles Mills or any other systematic philosophers. No system can contains a true dialectic of justice.
To Tony Couture:
1. You say: "What angers radical philosophers about Rawls on justice is that he got away with hiding all the real impurity of heart behind the mask of pure procedural justice and the procedural republic with no identity diversifying its justice."
What does this impenetrable sentence even mean?
2. Your "explanation" of prophetic justice is unintelligible.
Prof. Wolff,
The point of defense counsel asking leading, speculative, hearsay questions is not for the benefit of a witness's answer (to which the prosecution would object and have sustained), but to plant those implied thoughts of motive in jurists' minds simply by asking the question. Clever defense lawyers use this tactic all the time.
Tony Couture,
Rawls explicitly was not dealing with the real world, but with an ideal world. He was attempting to find what justice would be in that world. The original position and all of that was his attempt to get to it. Whether he succeeded is another question.
anon, perhaps you mean "juror?"
TC, what does this "prophetic justice" do in a polity with fifty separate elections given that heightened contradictions always seem to increase injustice?
Whatever one thinks of Rawls and his work, he does *not* assume "idealistic" in the sense of highly altruistic individuals. He assumes people have the usual run of human motivations but he also assumes or argues that people have a sense of justice, as he calls it. Most people are self-interested but also have some sort of moral compass. This is not a particularly "idealistic" moral psychology.
The phrase "ideal theory" is sometimes misunderstood. Basically what it means, or a significant part of what it means, in Rawls is that he assumes that, once the principles of justice have been chosen, people will comply with them and come to want to do so. This is what he means by "strict compliance theory."
As far as I'm aware, the phrase "purity of heart" occurs only once in A Theory of Justice, in the last sentence. And that sentence begins: "Purity of heart, *if one could attain it*...." (emphasis added)
You don't have to like Rawls. You can think it's all rubbish. But first you have to represent the theory accurately, or with some minimal degree of accuracy, and then you can proceed to rubbish it. Same with Marx, Kant, Wolff, Zimmerman, Prof xyz's book on such-and-such, anyone.
aaall
Sorry, yes, juror.
P.s. my comment at 12 pm is directed mainly to T. Couture.
LFC,
I agree that Rawls didn't assume ideal people--that's what the veil of ignorance is for. What I think he saw as ideal were the principles that the veil of ignorance would produce. I don't recall if I read it in Rawls or from a commentator (it's been some time since I read Rawls) something to the effect that having people adhere to the principles of justice in the real world was something he didn't get into, beyond observing that before we could do anything, we first had to know what they were.
D. Palmeter,
The principles are "ideal" in the sense that they "characterize a well-ordered society under favorable circumstances," (TJ, 1st ed., p.245), i.e. where "everyone is presumed to act justly and to do his [sic] part in upholding just institutions." (p.8)
But the principles are not irrelevant to the real world because they can be used as a measuring rod for existing institutions (246). "... while the principles of justice belong to the theory of an ideal state of affairs, they are generally relevant." (246)
Or are they? I believe Charles Mills and many others have criticized this approach.
Every aspect of the theory has been criticized, which I guess is what one would expect.
P.s. The veil of ignorance doesn't turn ordinary people into "ideal" people. All it does is to deprive ordinary people of certain kinds of knowledge.
P.s. I was able to get to those quotes so quickly bc TJ has an amazingly good index.
LFC
I read somewhere that either Rawls, his wife, or both were indexers as a hobby. They might have been then ones who did it.
It's hard for me to think of anything more boring. Perhaps that explains his less-than-entrancing writing style. He could have used a good editor, or at least a copy of Strunk & White.
DP: I don’t know whether in fact making up indexes/indices was one of Rawls’s hobbies, but I do know that he compiled the index for the first edition (1950) of Walter Kaufmann’s “Nietzsche—Philosopher, Psychologist, Antichrist.” And the indexes to the third and fourth editions to that book were likewise based on Rawls’s original compilation.
"...and I am certain by observation that Cornel West is playing with this political hand in the 2024 Presidential election."
What hand?
https://www.youtube.com/watch?v=zBXwfmUpHOA
West is entertaining in a side show sort of way but the bit with Hedges is the same old same old that always closes out of town. The Peoples Party is a non-entity ballot wise and the Greens currently are on the ballot in states with 204 electoral votes - far short of a majority (way far short as MS, AR, SC, TX, WV, and FL will be non-starters). All West will do is to give Trump or DeSantis a pathway to victory.
Also, didn't Prophets usually get stoned or sawn asunder?
Also, didn't Prophets usually get stoned or sawn asunder?
Right.
As a president of a superpower, you need someone who lies when it's necessary to lie, not someone who always speaks truth to power. You need someone who has read and digested Machiavelli as well as the sermon on the mount.
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