Yesterday I put up a post on this blog about what seemed to me to be an important question concerning the eventual trial of Trump, a question that none of the lawyers on the television talk shows were discussing. The question was this: if Trump’s principal defense is that his actions are protected as free speech, how can the defense make that case what it is their turn without calling Trump himself? There have only been five comments on that post, and they are mostly about Emile Durkheim. Now I like Durkheim, I have read him, I have commented on his classic book Suicide. But he has absolutely nothing to do with the question I raised, and since I think it is actually important, I will talk about it again.
Let me repeat what I said yesterday. When the trial begins,
the prosecution will put on its case first. The prosecution will present
witnesses who will testify to things that Trump did and said; the prosecution
will present documents and other materials that they will enter into evidence.
The defense lawyers will cross-examine the witnesses and raise questions about
the materials presented in evidence. Eventually, the prosecution will rest.
Then it will be the turn of the defense. That is the way trials are run in the
United States.
All the discussion on television that I have heard focuses on
the claim that Trump’s defense will consist of arguing that what he said and
did was the expression of his belief that he really was elected and that there
really was massive voter fraud, and that what he said was protected by the
First Amendment. The defense will not argue that this is a case of mistaken
identity, that the person who was in the Oval Office was not Donald Trump but
someone else, that Donald Trump was not in fact the President of the United
States during the time of the events in question. I know it sounds silly to say
these things, but that is the sort of argument that is typically presented by a
defense in a trial.
How can the defense attempt to establish that Trump genuinely
believed that he had won and hence that what he said and did was protected by
the First Amendment? The answer is obvious. They must call them to the witness
stand and ask him what he believed at that time.
But everyone agrees that it would be a disaster to put Trump
under oath and have him testify, thereby opening him up to cross-examination.
So I will repeat the question I asked yesterday to which I have yet to hear any
kind of coherent and sensible answer: when it is the turn of the defense in the
trial, what sort of defense can they put on?
ReplyDeleteI think you're probably right. I say "probably" because I have no experience in criminal litigation, and I graduated from law school 60 years ago.
My view that you're probably right, that they can prove Trump's intent only by his own testimony, is based on the hearsay rule. If the defense were to put a White House staffer on the stand and ask what Trump said about something, that normally would be hearsay. But the hearsay rule has many exceptions, and I don't know if there is one that applies in this situation.
We could use Marc's input on this one.
Politico has an article which outlines Trump's most likely defense, the "Five Pillars of Trump's Defense:
ReplyDeletehttps://www.politico.com/newsletters/playbook/2023/08/03/the-five-pillars-of-trumps-defense-00109585?cid=hptb_primary_0
It seems that 95% will be political and maybe 5% legal.
(1) Even if Trump does not take the stand, some of his own statements might be admissible under either the state-of-mind or present-sense-impression exceptions to the hearsay rule. Those exceptions are contained in Fed Rule of Evidence 803(1) and 803(3). See the link:
ReplyDeletehttps://www.law.cornell.edu/rules/fre/rule_803
(2) If certain of Trump's statements are ruled admissible under these exceptions, then the defense can put on witnesses to testify that they heard Trump say them.
(3) The basic hearsay rule is that out-of-court statements are inadmissible to prove the truth of the matter asserted. But in this case the defense is not trying to prove the truth of Trump's statements that he won the election; rather, the defense is trying to prove that Trump genuinely believed he won the election. That goes to state of mind, which is why the statements might come in under the state-of-mind exception.
The prosecution will try to show that, except for a few "bonkers" advisers like John Eastman, most people were telling Trump that he had indeed lost. And the defense will no doubt portray Eastman as a reputable constitutional law scholar on whose advice Trump was entitled to rely.
I graduated from law school 40 years ago (gulp) and while, unlike Marc Susselman (or David Palmeter), I spent very little time actually practicing law, I was an editor, for a while, of something called The Federal Rules of Evidence Service. That meant I had to read lots of cases involving the Federal Rules of Evidence (ironic, since I did poorly in my evidence course in law school). But that was a long time ago, and I have not thought or cared much about the Federal Rules of Evidence since.
If Marc were here, he would perhaps hasten to dismiss me as an ignoramus, but Marc isn't here, so that's that.
P.s. Indeed, you might not even have to get to the hearsay exceptions.
ReplyDeleteHearsay is defined, in Rule 801, as a statement offered to prove the truth of the matter asserted in the statement. And here Trump's statements will not be offered to prove the truth of the matter asserted in them. So they're not hearsay. (That will be the defense's argument, at any rate).
https://www.law.cornell.edu/rules/fre/rule_801
Thank you, LFC, that is very helpful. Several thoughts: First, some of the testimony mentioned in the indictment concerns private conversations between Pence and Trump, for example the much noted instance in which Trump said to Pence, "You are too honest." An obvious defense would be for Trump to say that he was joking, but if he does not testify he cannot say that, And since it was a private conversation, no one else can be called to testify that the remark seemed to be a joke. Second, it may be that the defense can enter into evidence endless public statements by Trump in which he said that he believed he had won. Everyone in the United States has heard countless such statements. But with Trump sitting right there, it is going to be rather odd for the defense to enter these as evidence of his beliefs and yet not to call him to the stand to state directly what he believed.
ReplyDeleteProfessor Wolff
ReplyDeleteDurkheim is relevant as from a certain viewpoint the sociological facts are more or just as important as the facts reported in the paper
What is going on in the surface is Trump trying to get out of jail and become President, what is really going on is Trump challenging the current regime of government.
Durkheim to an extent says that the facts are what people take them to be, sometimes enforced by power.
Trump is trying to subvert that system as well as the government- he is saying I create the facts.
It is very interesting how that will work and Durkheim might have preceded the advent of totalitarian regimes which is where Trump is desperately leading us
So your front page news headlines is interesting and is relevant but I would say you might lack enough of a sociological eye to see what is really going on
Your head is too much lost in the proverbial cave
That is my point.
You can go back to your inside baseball hair splitting
I will not derail or hijack your proceedings
Durkheim likes you too I'd suspect
Keep in mind that the burden of proof is on the government. The defense doesn't have to prove Trump is innocent, they just have to persuade one or more jurors that the government didn't make the case that he's guilty. Theoretically they could do that by attacking the credibility of the government witnesses on cross examination, not put on an affirmative defense case at all, and argue in summation that the government hadn't proved its case.
ReplyDeleteProf. Wolff -- Yes, I think you're right about that Trump/Pence private conversation. (I should note incidentally that I haven't read the indictment and I have no immediate plans to do so, but I will probably read it before the trial actually starts.)
ReplyDeleteOn the second point, yes it will look a little odd to introduce Trump's out-of-court statements with him sitting there, but I think that's what the defense is going to do. I suspect or guess that the defense is going to call members of his inner circle and ask them when Trump started to say he had won the election and the outcome was rigged or stolen, and those members of the inner circle are going to testify that Trump started to say that immediately on Nov. 6 or whenever election day was -- if not before. And those out-of-court statements by Trump are likely going to be admissible (because, as I said above, they're not offered to prove the truth of the matter asserted and so are not hearsay).
Welcome back Marc! The Professor, already disappointed by his flock's failure to pay sufficient attention to his question, will be dismayed by your intervention. But we are delighted.
ReplyDeleteMarc,
ReplyDeleteRe-read what I said, please. I never said that Trump had a burden to prove that he genuinely believed that he had won. As the defendant, Trump does not have a burden to prove anything.
What I said was that public or non-public out-of-court statements by Trump to the effect of "I won, and the election was stolen" will likely be admissible, should the defense want to offer them into evidence, because those statements will not be offered for the truth of the matter asserted and therefore will not constitute hearsay.
And that statement by me is, I believe, correct.
(And I was, it so happens, an editor of The Federal Rules of Evidence Service, albeit a long time ago.)
This is a big enough oxymoron to choke anybody, but what does the “sincerity” of Trump’s “belief” that he won the election (and that the election was stolen from him) have to do with anything? What’s he entitled to because he (allegedly) really believed something? Why is sincerity a factor at all? Isn’t all this legal mess surrounding him a matter of what he did (took the lead in, was part of)? … . I see (from the NYT) that “Pence Says Trump Pushed Him ‘Essentially to Overturn the Election.’” (I'm reminded of an old German proverb here: A rock once thrown belongs to the devil.)
ReplyDeletep.s. Since Trump's defense lawyer is already claiming publicly, e.g. on the NewsHour last night, that this whole thing is a violation of Trump's right to free speech, the defense might want to think about at least making reference to some examples of that speech at the trial. (But maybe not. I've never tried a criminal case, so I can't claim personal experience of that.)
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteI'm a little bit puzzled. Why does it matter what Trump believed or thought? He's charged for, in very simplified terms for trying to overturn the election (I am aware that the precise charges are more precise).
ReplyDeleteWhy does it matter why he did it? Suppose he genuinely did believe that there was fraud in the election (even if there actually wasn't). Does that entitle him to try to overthrow the constitutional order?
My point is: The election WAS fair. Given that, it doesn't matter WHY someone tries to overturn it. It's illegal no matter the reason, is it not?
MS's analysis of the burden of proof in this case is the most useful thing I've seen him write. And he is correct.
ReplyDeleteThe question, when it comes to the free speech angle, is whether Trump's behavior was speech or "conduct." If it was speech, then sincerity is not strictly relevant; it might be helpful to show he believed what he was saying, but even if he didn't, he still could say it.
ReplyDeleteHowever, if his behavior went beyond speech and into the realm of conduct, then it's not protected. (Also, incitement to insurrection is not protected speech, I think, though whether Trump's speech to the crowd on Jan 6 was incitement is, I suppose, debatable.)
Marc,
ReplyDeleteI didn't say that the defense would offer the statements.
The defense however is already claiming that this indictment and prosecution is a violation of Trump's First Amendment rights. If they want to maintain this line at the trial, aren't they going to want to show that Trump said some things (whether he believed them or not)?
Yes, they have no burden to prove anything, but one way to get the jury to acquit is to show that this is a politically motivated prosecution and a violation of Trump's constitutional rights. To show that, they might want to show that Trump exercised his constitutional rights -- for example, that he said, repeatedly, "I won, the election was rigged, the election was stolen" -- after all, those words, standing alone and in isolation, are protected speech. And in pursuit of that end, the defense might want to introduce some out-of-court statements by Trump -- I'm not saying they will or should do that, but it's within the realm of possibility.
This is not an ordinary criminal defendant, it's an ex-President who claims that he's being persecuted unfairly by a politically weaponized DOJ. It's not ridiculous to suggest that since he's not an ordinary defendant, his defense might not be an ordinary defense.
Finally, it does not matter to the legal analysis whether a particular rule of evidence is never used by a defendant. The fact is that, if Trump's defense team made the perhaps unwise decision to introduce certain out-of-court statements by him, they would likely come in.
You're claiming I don't know what I'm talking about when basically all I did was repeat and link to the definition of hearsay, and that is a peculiar assertion on your part.
P.s. Perhaps you would like to write to the District of Columbia Bar and suggest that they disbar me (even though I have an inactive status). If you want to, please do so. It would save me approximately 200 dollars a year. And for me, since I'm not Elon Musk or Jeff Bezos, that's not nothing.
I wonder if free speech is limited for Presidents by the Presidential Oath of Office? Here is the Trump video:
ReplyDeletehttps://www.google.com/search?q=trump+oath+of+office&oq=trump+oath+of+office&aqs=chrome..69i57.16029j0j7&client=ms-android-verizon&sourceid=chrome-mobile&ie=UTF-8
As others have pointed out and based on the actual counts in the incidctment, what does what Trump actually believed have to do with anything? If I believe the registered survey markers that delimit my property are misplaced to my detriment I have a right to go to court, order a new survey, make the adjacent owners a legitimate offer, etc.. I don't have a right to move the markers on my own, bribe the surveyor, or send Guido to "negotiate" with my neighbors regardless of the "sincerity" of my beliefs. "Belief" seems like a red herring.
ReplyDeleteThank you for your answer, Marc.
ReplyDeleteI'm still in the dark. You say: "The only way he can be convicted is by introducing evidence that he went beyond simply asserting he had won, and proving that he actively engaged in conduct in order to overturn the election."
So far, I follow. But what I do not understand is, supposing that Trump was actively engaged in such conduct, why does it matter what he believed? Here's an analogy, which may be a poor one, and maybe you can think of a better one: Suppose I am told that if I break all the windows in a stranger's house, they will give me a million dollars.
In fact, they will do no such thing. Would it be a valid defense for me to say that I believed they wanted me to and would reward me? Isn't that irrelevant with regard to my liability?
Like I said, the analogy may be a poor one, but it should explain what I am trying to get across.
Right—that takes me most of the way.
ReplyDeleteSo, let's say that we can prove that certain people were engaged in a scheme to send false electors to Washington. Now we want to prove that Trump was also engaged in that scheme.
I'm still a bit unclear about why that's easier if we can prove he didn't think the election was stolen. Presumably, what they did was illegal and if he encouraged them, he was encouraging them to do something illegal—even if he thought that it was for a non-corrupt reason.
Sorry, I just don't see how mere belief is dispositive. If conspiring to send fraudulent electors is against the law then it's against the law full stop (ditto for the other counts). Sincerely believing he won the election allows him to go to court, encourage his supporters to go to court in the several states, and to lobby for objections during the count in Congress.
ReplyDeleteBesides, how is not the case that Smith only has to establish things like deliberate ignorance and reckless disregard - with Trump that seems relatively easy?
Hello Marc...
ReplyDeleteWhat you say, Marc, is very interesting.
ReplyDeleteWe've all known, I imagine, people who lie a lot and seem to believe their own lies or at least believe some of them.
Maybe Trump is like that. Maybe he genuinely believes that he won the 2020 election. His ego is so huge that he cannot accept defeat.
It's a possibility.
As I said above, I haven't read the indictment yet.
ReplyDeleteBut it is interesting that an experienced prosecutor would charge someone with making "knowingly false" claims if he doesn't have the evidence to prove it -- and what is indeed the percentage likelihood that Jack Smith has evidence that Trump said to someone "I know I lost the election?" Five percent? One percent? One-tenth of one percent?
So we have a situation, if the above (M.S.'s) analysis is correct, where a highly experienced prosecutor is bringing a case he can't prove beyond a reasonable doubt -- and moreover, probably knows he can't prove beyond a reasonable doubt.
Except he's not going to be trying the case to a jury of epistemologists but to a jury of ordinary people. So I guess we'll have to wait and see.
P.s. By the way, I didn't think Trump was going to be indicted in the Jan. 6 case at all, though I don't think I ever expressed the opinion here that bluntly. I thought Jack Smith was going to come back and say there was insufficient evidence to secure a conviction. Obviously I was wrong on that score, since he has been indicted. And David Palmeter, who was fairly certain iirc that an indictment was going to come, was correct. DP told me that the appointment of a special counsel (or whatever the technically correct term for Smith is) meant an eventual indictment was likely, and DP was right. I was wrong. So I hope no one here will say in future that I cannot acknowledge when I have been wrong.
Sorry, the question mark should be outside the quotation marks -- should read:
ReplyDelete"I know I lost the election"?
*not* "I know I lost the election?"
Marc,
ReplyDeleteI think it is quite possible he (Smith) doesn't have "the goods."
I said he was an experienced prosecutor, not a wunderkind. And experienced prosecutors make mistakes sometimes, just as experienced defense lawyers do, just as experienced professionals in all fields do.
The chances that Trump told someone "I know I lost the election" are slim, I think. But maybe Smith has that testimony from someone. Maybe he doesn't. We'll see.
I'm not taking a position re the outcome because: (1) I haven't read the indictment, (2) I'm not a criminal lawyer, and (3) I was wrong about whether Trump would be indicted in this case at all. Why would I compound my record of being wrong by stating a confident position and risking being wrong again?
I don't know how much self-abasement it takes to satisfy you. Do I have to cover myself with sackcloth and ashes and walk through the streets whipping myself? (I'm sorry if that sounds blasphemous and offends someone. I'm turning off my computer for the evening.)
Don’t juries claim all the time to know intent, without the accused admitting it (to them or to someone else) when they find a defendant guilty? How about murder? How about giving the death penalty to someone who claims to be innocent? And anyway an admission would preclude, or make redundant, the need to “find” beyond a reasonable doubt that a defendant is guilty. Why all that stuff about beyond a reasonable doubt? Don’t we in effect read (other) minds all the time? And don’t juries do this too? Isn’t it part of their job to do this? This all goes on at the level of common sense, not at the level of philosophical skepticism. On the former level, nobody bothers about (e.g.) the scientific image vs. the manifest image, or about unrelentingly subtle theories about intention, and pretty much everyone agrees with G.E. Moore. But when the discussion moves over (I won’t say up) to the philosophical level criteria change. And, I suspect, the reasons motivating the discussion change too. Juries sometimes get it wrong, even though they were sure beyond a reasonable doubt that they were right, and intended to be right.
ReplyDeleteActually I did not offer erroneous information about hearsay and the exceptions. I simply cited the relevant rules and linked to them.
ReplyDeleteI might have been wrong about what the defense team would choose to offer, but I was not wrong about the definition of hearsay. Nor about whether Trump's out of court statements, if offered, would constitute hearsay. (They wouldn't.)
And as I said before, the issue of which side usually uses a hearsay exception and for what purposes is irrelevant to the legal analysis of whether a given statement constitutes hearsay, though it might be quite relevant to questions of trial strategy.
ReplyDeleteAnd a final note: I think you should work on heightening your ability to actually decipher carefully what someone is saying.
ReplyDeleteTrump's statements are admissions of a party opponent only if the prosecution offers them. But the premise of RPW's initial question was what the defense could offer assuming it did not put Trump on the stand.
ReplyDeleteMy job for a few years was to read and write about federal court cases dealing with the Federal Rules of Evidence. It was decades ago, yes, but I would have to be one of the stupidest people in the history of the world if I hadn't managed to learn something in that time about the Federal Rules of Evidence. I'm no intellectual giant, but I don't think I'm one of the stupidest people in the history of the world. You might think otherwise, in which case we'll agree to disagree about that.
I think it's fair to say that we don't know what evidence Jack Smith has that he hasn't made public, we don't have the prosecution's witness list, and we don't know what those witnesses will state with regard to what Trump said to them.
ReplyDeleteMoreover, it's not clear to me how much of Jack Smith's case depends on proving beyond a reasonable doubt that Trump knew he lost the election. Even if he can't prove Trump's state of mind, Trump is still alleged to have engaged in a conspiracy to commit crimes that remain crimes whether he believe he lost or not. For example, it's still a crime to conspire to submit fraudulent slates of presidential electors.
Finally, we don't know what Judge Chutkan's instructions to the jury will be. These instructions will, in effect, structure how the jurors are to consider and decide each of the four counts. We don't know how the question of Trump's beliefs will be addressed in those instructions.
Wolff’s question still lacks an answer. Smith has plenty of admissible evidence of knowledge (see e.g. https://electionlawblog.org/?p=137932) so standing on burden of proof looks to be a poor strategy. Is there an alternative to testimony for Trump? “Actively involved” I think just requires an overt act in furtherance, which looks easy here — e.g. the call to Georgia, directing litigation. Assume Trump needs to respond to the knowledge evidence — what does his team offer?
ReplyDeleteI guess this bit about Jack Smith including it in his indictment that Trump used knowingly false information when committing his crimes is the reason Smith must prove that Trump knew the election was stolen.
ReplyDeleteBut if (a) if Smith doesn't know that he can prove that, why did he include it? And ditto (b), why include it at all, if you don't have to?
MS:
ReplyDeleteAssume that evidence that Trump knew he lost is admitted — then is there a way for Trump to offer counter-evidence without taking the stand?
I get you think Smith can’t meet his burden, but assume he does, what then?
The reference to Rafensberger was to an illustration of a step in furtherance, not to show knowledge of loss.
ReplyDeleteSusselman is introducing several confusions into the discussion.
ReplyDeleteFirst, it's not just that the indictment includes the phrase "knowingly false" that means the government has to prove Trump was lying. That Trump lied in order to defraud the government is one of the elements of conspiracy to defraud the United States. By charging him with that crime, the government has to prove he lied.
Also, that Trump's advisors told him his claims were false, while not sufficient on its own, can go a decent way towards satisfying the government's burden of proof.
Further, the indictment doesn't have to include all of the evidence the government has. There are good strategic reasons why you wouldn't want to include all of the evidence in the indictment. Anyone commenting on what evidence is going to be brought to bear against Trump is merely speculating. So we just don't know, and won't know until the trial, whether the government can meet its burden of proof.
Finally, its false that in order to prove someone was lying you need them to admit they were lying. That sort of smoking gun evidence is what a prosecutor dreams of, but they often make do with less in cases like this.
If that's not the reason, I still don't get it. The fraud in question is a scheme to send a slate of false electors to Washington, is it not? Why must Trump have believed that he was doing so for a corrupt reason for it to be a crime?
ReplyDeleteIf I believe that my credit card was falsely charged, it would still be a crime for me to break into the bank's computer system to change it, and if I believe (or even know) that you stole from me, I cannot break into your house to retrieve the item you stole.
Is it really legal to send false electors to Washington to overturn an election if one just believes that it is right to do so?
ReplyDeleteI don't believe that Smith has to have Trump directly acknowledging that he lost the election in order to prove that he knew he lost. That he knew he lost can be inferred by his actions, as is the case when juries infer intent to kill in reaching a verdict on first degree murder.
I don't think that Trump would have to be insane to believe that he won the election.
ReplyDeleteLet's say I claim that Putin invaded Ukraine to rid the country of the Nazi government and to preempt a NATO attack on Crimea and Donbas.
Everybody will point to the New York Times and all the Western media to show that my belief is false.
However, I point to RT and to the Argentinian political scientist Atilio Boron as my sources proving that Putin attacked to rid Ukraine of Nazis and to preempt a NATO aggression.
Am I insane or deluded or just live in an ideological bubble?
I'm sure that Trump can point to some alt-right media sites which say he won the election, probably to Rudolph Guiliani and a couple of other far right commentators, maybe even to RT. Trump can claim that the NY Times lies and that RT always tells the truth, in his opinion.
Why all this focus on whether Smith can prove (BARD) that Trump new that he had lost the election?
ReplyDeleteProving that Trump knew he had lost the election is just frosting upon the prosecutorial cake.
As I understand them, the four counts charge Trump with conduct in furtherance of coordinated efforts to prevent the constitutionally mandated processes of choosing the president from going forward unimpeded, for example, by preventing the count of electoral college votes to proceed on January 6, and concocting the fake electors scheme in 6 (or is it 7?) states.
Proving beyond a reasonable doubt that Trump took part in these actions in no way requires the prosecution to prove (BARD) that Trump knew that he had lost. Proving the latter would no doubt strengthen the case for the former in the eyes of a jury... but it is not necessary to the meat of the prosecution's case.
So, can further comments reflect that fact? Please?
ReplyDeleteMarc,
First, I'd note the excellent point made by David Zimmerman (9:41). Second, however, the indictment explicitly accused Trump of acting while knowing that he lost. It would be very unprofessional, even dangerous to his case, for Smith to make such a claim without being able to prove it.
I haven't followed much beyond the headlines because I want to waste as little of the time left to me with Trump. But one example I can recall, from which a jury could infer that Trump knew he lost, would be his suggestion to the Georgia official that he "find" 11,000 or so votes.
As an ex DOJ lawyer myself (more than half a century ago) I can't believe that Smith and his team would have made such an obvious blunder, one that would make their case vulnerable when they face a pro forma motion for a directed verdict at its conclusion.
David,
ReplyDeleteOne of the elements of conspiracy to defraud the United States is that Trump knowingly made false representations to the government in order to defraud the United States or disrupt the functioning of government. If you haven't done that, then you haven't committed the crime. So it is necessary to prove that Trump knew what he was saying was false, otherwise Trump isn't guilty of the crime he's been accused of.
To see the reasoning behind why knowing that what you're planning to do amounts to fraud is necessary in order to conspire to commit fraud, consider the following case.
Imagine I tell you that I own an old building that I mean to demolish. Wouldn't it be fun to break out the windows before the wrecking crew comes? How often do you get the chance to smash a building's windows out without any risk of repercussions? So you and I make a plan to smash the windows out. Now it turns out that I don't own the building, it's the property of my rival.
Did you conspire with me to commit a crime? Well no, of course not. You thought we were going to do something perfectly legal. It doesn't matter that what we had planned on doing was in fact illegal. In order for it to be a conspiracy, you would have to have known that what we'd planned on doing was illegal.
When the crime in question is fraud, that means conspiracy to commit fraud requires knowing that what you were conspiring to do amounts to fraud. That is to say, knowing that what you were saying was false.
It’s RPW’s blog, but (apparently) it ain’t RPW’s rules.
ReplyDeleteMarc,
ReplyDeleteYou'll notice that Prof. Wolff seems to have deleted all of your previous comments in this thread. Please refrain from commenting as you're just adding to the administrative burden of keeping you out of a place where you're not wanted.
If Marc's comments are being deleted, that is very unfair.
ReplyDeleteOn this issue Marc has been very informative, he knows more about it than anyone else who comments here and while his style is as usual a bit abrasive, he has refrained from directly insulting others.
Thank you Marc for your intervention on this issue.
FWIW, The Hill quotes Bill Barr on the evidence Jack Smith might have about Trump's state of mind:
ReplyDelete"Former Attorney General Bill Barr called former President Trump’s Jan. 6 indictment the 'tip of the iceberg,' arguing that special counsel Jack Smith and the Justice Department (DOJ) have 'a lot more' evidence to come on Trump’s state of mind.
“'The government, in their indictment, takes the position that [Trump] had actual knowledge that he had lost the election and the election wasn’t stolen through fraud,' Barr told CNN’s Kaitlan Collins on Wednesday night. 'And they’re going to have to prove that beyond a reasonable doubt, which is a high bar of course. … Now that leads me to believe that we’re only seeing the tip of the iceberg on this.'
"When asked if he thinks Smith has more in connection with the indictment, he said he believes DOJ has 'a lot more.'
“'And that’s one of the things that impressed me about the indictment,' he continued. 'It was very spare, and there were a lot of things he could have said in there and I think there’s a lot more to come and I think they have a lot more evidence as to President Trump’s state of mind.'"
Just an hypothesis:
ReplyDeleteVirtually everyone believes Trump is at worst a pathological liar, at best a liar for self-interest. If his defense wants to argue that he actually believes his claims for statement claims, they may be suggesting he may be infringed by some psychopathy or sociopathy, and the Model Penal Code regards that as not a valid defense. The prosecution could request a psychiatric evaluation. The defense would decline because Trump is a malignant narcissist and would never consent. thus eliminating the "true believer" defense of statements as admissible.
ReplyDeleteTJ,
I don't disagree with what you've said, but I don't think it meets the point I was making: that intent can be proved indirectly. Just as the prosecutor need not prove that the defendant said "I intend to commit murder" in order to prove intent, Smith doesn't have to prove that Trump said "I know I lost" in order to prove that Trump knew he had lost. Both can be proved "beyond a reasonable doubt" by indirect evidence. Smith hasn't said how he intends to prove Trump's knowledge, and at this stage he doesn't have to. Trump's suggestion that the Georgia official "find" 11,000 votes most likely would be part of that indirect proof.
Despite Marc's travails on this blog, I have learned enough from his past posts about the law to hesitate to disagree with him on such matters. Nonetheless, I do have a question about his recent claim that in order for Smith to sustain the four counts of the indictment against Trump the prosecution needs to prove BARD that Trump knew that his claims of election fraud were false. Marc suggests that this is so because the specification of the counts states that Trump's claims were false AND that he knew that they were false.
ReplyDeleteMany commentators have noted that Smith offered a "speaking indictment," that is to say an indictment that laid out a story about each of the counts, so that anyone who reads the document can follow the thread. They also note that such a speaking indictment includes facts that are not legally intrinsic to the counts of the indictment, and which could have been left out.
My question: Are the references to Trump's state of belief with respect to claims of fraud such obiter dicta, or are they intrinsic elements of the counts of indictment, which the prosecution needs to prove BARD?
None of the counts says anything like "Defendant made false claims re X, and knew that they were false." Rather, they specify some aspect of conduct such as conspiracy to defraud..., or conspiracy to obstruct/prevent an official proceeding, or to prevent voting and the count of votes. These types of conduct can be specified independently of any essential reference to the Defendant's state of mind with respect to what he believed, whether his beliefs were sincerely held or the like.
Thus my question: In order to prove BARD that Trump acted to obstruct/prevent the electoral vote count, and so on for the other elements of the indictment, why must the prosecution assume the burden of proving anything about Trump's state of belief about electoral fraud? To be sure, Smith et al do need to prove BARD something about Trump's state of mind, namely that he intended to interrupt/delay/prevent the count of electoral votes, that he intended to substitute the vote of fake electors for the real one's, and so on. But that is different from his state of belief about electoral fraud.
The well-worn analogy remains apt: In order to prove BARD that someone intended to rob a back, and took steps to advance that plan (whether or not it succeeded in the end) the prosecution need not also prove BARD that a would-be bank robber -- who tries to justify his actions by insisting that the bank defrauded him -- also knew that this belief was false as he unleashed his plot. Whether he believed his own imagined grievance or not is irrelevant: he did take steps to rob the bank. And that is a crime.
And so it would seem to be with Trump.
Davids Palmeter and Zimmerman,
ReplyDeleteApologies, my comment at 10:20 was directed at Zimmerman. I think it also answers his comment at 12:09.
As for Palmeter's comment at 12:03, I agree (see my comment at 7:49).
ReplyDeleteFurther to the question of whether Smith needs to prove that Trump knew he had lost the election:
Here are some quotes from Mike Pence -- which he will no doubt repeat on the witness stand -- that provide strong evidence that Trump tried to prevent the lawful counting of valid electoral votes on January 6:
Pence: “The American people deserve to know that President Trump and his advisors … asked me … essentially to overturn the election. And to keep faith with the oath that I made to the American people and to Almighty God, I rejected that out of hand. And I did my duty that day.”
Pence: “Let’s be clear on this point. It wasn’t that they asked for a pause. The president specifically asked me and his gaggle of crackpot lawyers asked me to literally reject votes which would have resulted in the issue of being turned over to the House of Representatives.”
Pence: “President Trump asked me to put him over the Constitution. But I chose the Constitution … I really do believe that anyone who puts themself over the Constitution should never be president of the U.S.”
Whether or not Trump truly believed that he had lost the election, Pence can attest that he (Trump) tried to prevent the lawful process of certifying Joe Biden's election from being certified.
So, my brother and sisters (if there are any), can we stop trying to figure out whether Smith can prove what Trump did or did not believe?
DZ at 12:00
ReplyDeleteKnowledge is a required element of the crimes. All elements must be proven beyond a reasonable doubt.
I don't remember why MS was cancelled, but Marc is like a posting law encyclopedia & I admire that in him. I believe he was cancelled without a trial by jury. As a reader of this post, I put in my one vote that MS be allowed to return and post again. I believe a just man should be allowed to voice his opinion even if he is put on some sort of probation in the current present.
ReplyDeleteMichael Llenos,
ReplyDeleteI vote with you.
"So, my brother and sisters (if there are any), can we stop trying to figure out whether Smith can prove what Trump did or did not believe?"
ReplyDeleteIndeed! Via LGM this seems apt:
https://edroso.substack.com/p/in-defense-of-charles-manson
"...when it is the turn of the defense in the trial, what sort of defense can they put on?"
Competency?
s.w., your example leads to an endless progression (e.g. certain Eastern European nations draw entirely reasonable conclusions) so invading ones neighbors is sort of per se problematic.
BTW, you don't need boats to do imperialism and colonialism:
https://pbs.twimg.com/media/F2N0l96WUAIGWii?format=jpg&name=medium
The intricate legal nit picking arguments are interesting and all valid speculations, but the crux of the matter is being neglected. Per the prosecution's indictment, they have Trump dead to rights on facts of action. The defense, HOWEVER, will not argue against that per se. They will be trying to convince that one lone Trump sympathetic jury member that Trump's ace-in-the-hole assessment about the "uneducated" American with grievances is correct, who believes the government is corrupt, the prosecution is political, and Trump is the victim.
ReplyDeleteSo my question is, what does a hung jury portend?
Emile Durkheim developed a vigorous methodology combining empirical research with sociological theory.
ReplyDeleteIt's quite beside the point of this particular thread, but I have to say I'm as opposed to MS's reinstatement on this blog as I was glad to see him ousted. Why? Again and again he turned almost every thread into HIS thread. It was always all about him, his concerns and his easily injured ego--and when he felt injured, which was almost all the time, he resorted to the ugliest ad hominem comments. Returning him to the blog would be like returning Trump to the White House. Please, Prof. Wolff, stick to your guns on this one.
ReplyDeleteA propos the Trump Jan 6 indictment----From today's NYT:
ReplyDeletePart 1
Proving Intent
Some commentators have argued in recent days that prosecutors must persuade the jury that Mr. Trump knew his voter fraud claims were false to prove corrupt intent. But that is oversimplified, several experts said.
To be sure, experts broadly agree that Mr. Smith will have an easier time winning a conviction if jurors are persuaded that Mr. Trump knew he was lying about everything. To that end, the indictment details how he “was notified repeatedly that his claims were untrue” and “deliberately disregarded the truth.”
“What you see in Trump — a guy who seems to inhabit his own fictional universe — is something you see in other fraud defendants,” said David Alan Sklansky, a Stanford University law professor. “It’s a common challenge in a fraud case to prove that at some level the defendant knew what he was telling people wasn’t true. The way you prove it is, in part, by showing that lots of people made clear to the defendant that what he was saying was baseless.”
Moreover, the indictment emphasizes several episodes in which Mr. Trump had firsthand knowledge that his statements were false. Prosecutors can use those instances of demonstrably knowing lies to urge jurors to infer that Mr. Trump knew he was lying about everything else, too.
The indictment, for example, recounts a taped call on Jan. 2 with Georgia’s secretary of state, Brad Raffensperger, in which Mr. Trump shared a series of conspiracy theories that he systematically debunked in detail. But on Twitter the next day, Mr. Trump “falsely claimed that the Georgia secretary of state had not addressed” the allegations.
And on Jan. 5, Mr. Pence told Mr. Trump that he had no lawful authority to alter or delay the counting of Mr. Biden’s electoral votes, but “hours later” Mr. Trump issued a statement through his campaign saying the opposite: “The vice president and I are in total agreement that the vice president has the power to act.”
In any case, several rioters have already argued that they did not have “corrupt intent” because they sincerely believed the election had been stolen. That has not worked: Judges have said that corrupt intent can be shown by engaging in other unlawful actions like trespassing, assaulting the police and destroying property.
“Belief that your actions are serving a greater good does not negate consciousness of wrongdoing,” Judge Royce C. Lamberth wrote last month.
Mr. Trump, of course, did not rampage through the Capitol. But the indictment accuses him of committing other crimes — the fraud and voter disenfranchisement conspiracies — based on wrongful conduct. It cites Mr. Trump’s bid to use fake electors in violation of the Electoral Count Act and his solicitation of fraud at the Justice Department and in Georgia, where he pressured Mr. Raffensperger to help him “find” 11,780 votes, enough to overcome Mr. Biden’s margin of victory.
“Whether he thinks he won or lost is relevant but not determinative,” said Paul Rosenzweig, a former prosecutor who worked on the independent counsel investigation into President Bill Clinton. “Trump could try to achieve vindicating his beliefs legally. The conspiracy is tied to the illegal means. So he has to say that he thought ‘finding’ 11,000 votes was legal, or that fake electors were legal. That is much harder to say with a straight face.”
Part 2:
ReplyDeleteProving Mr. Trump’s intent will also be key to the charges of defrauding the government and disenfranchising voters. But it may be easier because those laws do not have the heightened standard of “corrupt” intent as the obstruction statute does.
Court rulings interpreting the statute that criminalizes defrauding the United States, for example, have established that evidence of deception or dishonesty is sufficient. In a 1924 Supreme Court ruling, Chief Justice William H. Taft wrote that it covers interference with a government function “by deceit, craft or trickery, or at least by means that are dishonest.” A 1989 appeals courts ruling said the dishonest actions need not be crimes in and of themselves.
This factor may help explain the indictment’s emphasis on the fake electors schemes in one state after another, a repetitive narrative that risks dullness: It would be hard to credibly argue that Mr. Trump and his co-conspirators thought the fake slates they submitted were real, and the indictment accuses them of other forms of trickery as well.
“Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the defendant succeeded in outcome-determinative lawsuits within their state, which the defendant never did,” it said.
David Zimmerman and others,
ReplyDeleteI find it weird that you and others are carrying the day with your thesis that the prosecutors need not prove that Trump knew his claims that he won the election were false when the principle defender of the opposing thesis is banned from answering.
I know nothing about U.S. law and take no sides here, but it does seeem fair that Marc be given space to expound his views on this issue, maybe limited to one daily comment, which will be deleted immediately if it contains insulting language.
How about that?
ReplyDeleteA few core facts: 1. Smith accuses Trump of being aware of that he didn't win when he did the things he's accused of doing; 2. Smith has to prove this; 3. there are many ways in which prosecutors prove intent; 3. Smith hasn't told us how he intends to prove it; 4. He doesn't have to tell us how he intends to prove it in the indictment; 5 he does not have to prove it in the epistemological sense; he has only to prove it only beyond a reasonable doubt--a tough standard, but not an absolute one.
s.w., you might check out the concept of willful ignorance which is the very best construction of Trump's actions. Recall that Trump was mentored by his slumlord father (apples, trees)
ReplyDeletehttps://www.newyorker.com/culture/cultural-comment/a-story-about-fred-trump-and-woody-guthrie-for-the-midterm-elections
and Roy Cohen (rat-bastard lawyer who worked for McCarthy, prosecuted the Rosenburgs, and was eventually disbarred. He has spent is life in real estate and suing/being sued.
If you recall from the bogus 303 case, Marc seems to have admirable sympathies that often lead him into doubtful conclusions. When you have several Federal judges and heavyweights like Luttig as well as the VP and the WH counsel holding X and a few nuts going Y the inference shouldn't be difficult to establish. "Should have known" is a thing.
Mark's input was welcome IMO but perhaps Prof. Wolff would have been more merciful had there been some brevity.
aaall,
ReplyDeleteThanks.
Here's a good explanation of willful ignorance constrasting it with self-deception from Psychology Today.
https://www.psychologytoday.com/us/blog/why-we-blame/201709/willful-ignorance-and-self-deception
"Again and again he turned almost every thread into HIS thread. It was always all about him, his concerns and his easily injured ego--and when he felt injured, which was almost all the time, he resorted to the ugliest ad hominem comments."
ReplyDeleteWell Marc is a lawyer. Their profession goes back to Homer's Iliad where Achilles & Agamemnon first verbally fight in book one via ad hominem attacks. It's what all lawyers do. By the way, what I have in quotes above seems to be an ad hominem attack on Marc himself. It's good to point out mistakes in others, just as long as one doesn't repeat those same mistakes in word or deed.
To SW:
ReplyDeleteNot to be too defensive about this, but I had nothing to do with Marc's most recent banishment. I have said a number of times that I have learned a lot from his long disquisitions on the law (though not always so much from his long disquisitions on those areas of philosophy that I know something about).
In any event, a propos the current debate over whether Smith needs to prove that trump actually believed that the election was rife with fraud, there is a Youtube video, "The Insane Trumpsurrection Indictment in D.C." produced by Legal Eagle, a lawyer who regularly comments on legal issues of the day. It's about 24 minutes long.
The final section, on Trump's intent (which begins about 15 minutes in), is especially relevant.
LE suggests that the only count in which Trump's state of belief about the validity of the election might be pertinent is the first.
He convincingly argues that it is not pertinent to the proof BARD of the other three counts.... especially not the fourth, which alleges that Trump violated the right to vote.
If you get Youtube, it is worth a watch (you can watch it online).
Tragedy struck when the boat sank and all but one of the passengers, a lawyer, were eaten by a shark. Geraldo Rivera interviewed the shark and asked why he didn't eat the attorney. The beast replied: 'Professional courtesy'.
ReplyDeleteDavid Zimmerman,
ReplyDeleteI don't blame you for Marc's recent banishment.
As you probably have seen, I've had some nasty encounters with Marc and I do believe that he always threw the first punch.
Still, Marc does seem to be an integral part of this conversation group and I would note that there are far more comments in this thread in which he took part than in most, if not all, others since he was first banned. That is, he does stimulate discussion and debate, which is healthy and intellectually stimulating.
Michael Llenos has been very eloquent in championing the cause of Marc's return. I join him in that and I'd like you to join us too.
We need to police him if he does return: there is no excuse for personal insults here although, as I said previously, we should accept that Marc has an abrasive personality, he's not a sweet person.
I really don't understand how a group of libertarian socialists such as most of us are cannot help Professor Wolff police this space and yet allow a dissident and yes, abrasive voice such as that of Marc to participate.
To SW:
ReplyDeleteI too wish that Marc could return to the site.
.... though I must admit that I am at a loss as to how we might persuade him to temper his personal attacks.
Suggestions welcome.
Of course, in the end this would be Professor Wolff's decision.
David Zimmerman,
ReplyDeleteAgreed.
I'd say that we have to all call him out when he gets ad homimen. An attack on any of us
is an attack on all of us. Like NATO.
There is a fairly regular group of people who comment and most of us probably receive the comments by email which means we're plugged into the conversation a goodly part of the day, so we can monitor Marc's behavior. That would help Professor Wolff and at the same time
allow Marc's participation.
Michael Llenos @ 4:33
ReplyDeleteThe paragraph you add after quoting me is a non sequitur. It doesn’t really come to grips with my criticisms of MS, criticisms I believe quite a number of others who have come to this site share. My comment, by the way, may be read by some as ad hominem, but I would argue that it’s a fair description of his behaviour.
Beyond that, there are, I think, a number of lawyers who turn up here who have never behaved in the unfortunate fashion MS has done. So it’s surely simply wrong to suggest that his behaviour is typical of lawyer behaviour.
As to the suggestions of s.w. and some others that his behaviour might be held in check by our collective efforts, good luck with that; it never ever worked before, did it? Rather, every effort to constrain him by talking to him simply seemed to incite him to yet more unfortunate behaviour. All remarks of a necessarily somewhat critical tone were, as my memory serves, treated by him as vile, mortal attacks. (Again, Michael, this is intended to be a description, not an attack.)
I heard this one in the 1980s from a local rhythm-and-blues singer named Frankie Lee: The Lord of the Blog Robert Paul Wolff had but two rules for commentators: stay on this side of the river, and keep away from snakes. The commentators, liberals and leftists united in their belief in radical democracy, nonetheless voted to cross the river. A snake crawled up and asked to be carried across. "No way!" said the commentators, "Robert Paul Wolff said not to!" "But he said not to cross, and you're going to do that," the snake replied. "Yeah, but you always bite us when we get near you" said someone with a pseudonym. The snake stared, flicked his tongue, and said "That was then. I've shed my skin and I'm a new snake." Another pseudonym said okay, put the snake in his pocket, and waded across the river. When he reached into his pocket, the snake bit him. "Ouch! What the f**k, snake! I've been good to you, so why'd you bite me?" The snake replied, "You knew I was a snake when you put me in your pocket."
ReplyDeleteAnonymous,
ReplyDeleteI want to apologize if I came across too apathetically to your point of view & in the context of how you have carried it. That was not my intention. What I should have said was that the reason I believed Marc was being treated unfairly (by not being allowed to return & keep his comments permanently posted) was that he was subjected to what we all know and call nowadays to the effect of being "cancelled".
I believe Dr. Wolff mostly gave in to doing such an act because he already has too much on his plate for now, & he didn't feel like getting into a long debate about Marc with his readers. I believe "cancelling" goes against the very grain of free speech which is basically the spirit of what the internet should always and can always stand for.
s.w. posted an interesting link yesterday (at 3:08PM) distinguishing between willful ignorance and self-deception. I need to reread it, but at first glance, I was wondering if it'd be correct to view willful ignorance as a product of self-deception. I don't think I'd separately categorize the two, and at one point in the commentary, the author uses what seems a more suitable term ("delusion") for what he calls self-deception ("believing false things with complete conviction").
ReplyDeleteThe way I think of it, a person's willful ignorance consists in their acting (or refusing to act) so as to avoid something that they "know" (or strongly, justifiably, if perhaps inarticulately, suspect) would conflict with a belief of theirs that they'd rather not challenge. And "acting against one's knowledge" seems another way of phrasing "self-deception." But maybe I have the wrong idea on this; I need to reread the piece more carefully.
Also, re. Michael Llenos's comment on MS: All I want to say is that "cancel culture" is the wrong way to look at it, I think. People get "canceled" for bigoted statements, sexual assault, etc. I think MS would've been fine here if not for his bad manners. (Off-topic, often multi-part comments; petty, unrelenting character attacks - e.g., anyone skeptical of his metaethics is a hypocrite, anyone intolerant of his bad manners is a bad anarchist...)
As to whether it was an act of "cancelling" on Prof. Wolff's part, you'd have to ask him, just as you'd have to ask him whether he felt pressured into it, as you, I think, imply. But as my memory serves, he had several times tried to get MS to behave as a good blog citizen, including, as I recall, at least one previous blocking of his participation, all to no avail. I believe Prof Wolff took his last step in the matter sadly and reluctantly. I don't see him or those, like me, who supported him in that action engaged in what is now termed "cancelling." It was the endless bad manners and insulting behaviour that brought about MS's blocking, not the views he expressed, not even the fact that he presented these views at very great length. Best wishes, Michael
ReplyDeleteI agree with most of the criticisms of Marc made above.
ReplyDeleteHowever, he is a criminal lawyer with a long history of court-room experience and one of the topics which most concern us here is Trump's legal problems. There are no other criminal lawyers with so much court-room experience who comment here.
I went out for a while with a doctor who worked in a big public hospital and often when we conversed, I would cite some medical expert and she'd reply, "le falta clínica", that is, said expert had a lot of theoretical knowledge, but little experience in day to day patient care, which often is not exactly like what the text-books and the scientific papers tell you.
So too with legal affairs. Marc has "clínica" and that can help us a lot to understand what will happen to Trump. Banning Marc, in spite of his often negative personal qualities, is our loss.
Anyone can have his/her/their own blog. If you want the world to know what you think, and go on to argue with what some of the world tells you, you can always start your own site. And anyone can edit his/her/ their blog. I don’t see why editing in itself is unreasonable, unfair, authoritarian, or otherwise objectionable. Brain Leiter says somewhere that unedited, free-for-all comment threads are a bad idea (or words to that effect), and I think he’s correct. The default position is, I think, in favor of the judgment of the “owner” of a blog. I don’t think that invoking squatters’ rights applies.
ReplyDeletes.w., while I believe Marc practiced on the civil side of law, Trump's legal problems aren't all that difficult as he crimed in plain sight as the Jan. 6 Committee, current and coming indictments, SDNY, etc. made/will make clear. Neither "free speech" or deep, heart-felt beliefs are relevant. I assume Jack Smith, Alvin Bragg, and Fani Willis all have a sufficient understand of the relevant rules of evidence. Trump has hit the find out part of life, that's all.
ReplyDelete"Librtarian socialism?" How can combining two impossible things make something that is possible?
Anon, brevity usually requires one to privilege substance and snark over invective.
Is this a blog dragging along a comments section, or a comments section dragging along a blog?
ReplyDeleteaaall,
ReplyDeleteMarc seems to be a jack of all trades as an attorney.
However, he has, from what I've seen, a lot more street smarts in matters of law than most people and he just might be right.
Trump has smart lawyers, lots of money and he knows how to play the game.
Some comments.
ReplyDelete(1) In the OP, Prof. Wolff wrote: "How can the defense attempt to establish that Trump genuinely believed that he had won and hence that what he said and did was protected by the First Amendment?" (emphasis added)
As Marc pointed out, the defense has no legal obligation to establish anything. However, I think Prof. Wolff's question still is of some interest, if not from the standpoint of trial strategy -- since, again, the defense is not obligated to establish or prove anything -- then perhaps from the standpoint of the armchair, so to speak, as a kind of intellectual teaser, one that may not have an enormous amount of practical relevance but is still worth considering.
From that more theoretical, if you will, as opposed to practical, standpoint I would note that the word "hence" in Prof Wolff's question is out of place. Whether particular statements by Trump are protected by the First Amendment (against government or state action such as an indictment, for instance) does not depend on whether Trump believed what he was saying. The statement "I won the election and the result was rigged," taken in isolation at any rate, is protected by the First Amendment irrespective of whether Trump actually believed that he won the election and the result was rigged. Statements of this sort lose First Amendment protection only if they leave the realm of "speech" and become viewable as "conduct" -- a complicated question that I can't offer any detailed guidance on here, given my limits (which were not inaccurately highlighted by Marc, albeit in a less than polite way). I think it's reasonable to assume that the defense will argue in opening and closing arguments that Trump's statements were protected speech, while the prosecution will likely argue that they were part of a course of criminal conduct, and that argument (the prosecution's) may well require some reference to what Trump believed (as has been batted back and forth above). But the "belief" angle is not something the defense has to show or concern itself with in order to argue that Trump's statements deserve and come within First Amendment protection.
(2) From Marc's comments here over time, I've gathered that he was mainly a plaintiffs'-side civil lawyer but also has done some criminal work. As he correctly said, I'm not (and never was) a trial lawyer, and as I said myself upthread in my very first comment, I didn't spend much time actually practicing. (My entire c.v. is not relevant here and I'm not going to go into it, though some aspects have emerged, in one way or another, in other threads.)
(3) It was probably ill-advised of me to speculate, however briefly, about what the defense might do in terms of trial strategy. Such speculation is indeed, as Marc said, beyond my competence. I don't know what the defense will do, beyond the obvious points it can be expected to hit in opening and closing arguments, and I have no problem with retracting any such speculations that appear upthread. I'm not retracting certain other things that I said, however, which leads me to the last point. [in the next box]
(4) I'm not going to rehash the debate about particular Federal Rules of Evidence and how they might apply here. The text of the Rules is available online -- indeed I put up a couple of links in that regard upthread -- and anyone interested can read the Rules for themselves. They are not fun reading, but they're also not that hard to understand. Of course, simply reading the rules of evidence will not give one the perspective of a practitioner, but it should nonetheless shed light on certain points that were, or apparently were, in dispute.
ReplyDelete"Trump has smart lawyers, lots of money and he knows how to play the game."
ReplyDeleteSince he usually stiffs contrctors, lawyers, etc., more then one of his attorneys has wound up having to get their own counsel, more then one of his attorneys have become unindicted co-conspirators with the likelihood of being indicted going forward , at least one has gone to prison as a result of being a Trump lawyer, and his current lawyer has admitted to one of the charges on the TV, I'm not sure that is the case. Cohen and Rudy are disbarred and Eastman is currently having his license challenged in California. Also, we have no idea of Trump's grift-excluded net worth and successfully "playing the game means never finding out. He is currently finding out.
I've participated in this blog since 2016 and the participants here, including Professor Wolff, have consistently underestimated Trump and his ability to win the game.
ReplyDeleteWe'll see this time.
ReplyDeletes. wallerstein,
What do you mean by "consistently underestimating Trump"?
Most people, probably including Trump himself, underestimated him in 2016. But since then? Democrats gained in the 2017 state races, including getting control of the lower house in Virginia. In 2018 the Democrats gained control of the House and cut the Republican majority in the Senate. In 2020, Democrats won control of both houses of Congress, greatly improved their standing in state races, and of course, won the White House. It's also worth noting that in 2020, Biden did better than Democrats at large, or putting it the other way, Trump lost by a bigger margin than other Republicans.
Many of us did underestimate the damage he could and did do. If he wins next time, it will be worse.
David Palmeter,
ReplyDeleteIn 2016 everybody here, including Professor Wolff, were so sure that Clinton was going to win that I told all my Chilean friends not to worry because the smart guys in Wolff's blog told me Trump would lose.
Then they were sure Trump would be successfully impeached.
They they were sure Trump would be found guilty by the Russiagate investigation and while clearly he was somehow involved with Russia, he was too cunning to get caught.
Again and again Wolff and others have laughed about how stupid Trump is, but so far he's outsmarted all the liberals.
I have no reason to believe that he won't continue to do so this time either.
Yes, he can do a lot of damage, but you all consistently underestimate him.
I've pointed out that the left did the same thing with Pinochet. They laughed at how he talked, how uncouth he was and considered him to be an idiot, but he revolutionized Chile (from the right) and his neoliberal economic model has lasted longer and has penetrated people's mentality a lot deeper than anything Allende or the left ever tried to put into effect.
So watch out for Trump and don't underestimate him please.
s.w., it's not a case of underestimating. In order of importance, Trump won in 2016 because:
ReplyDelete1. The Republican head of the FBI couldn't handle the corrupt and Trumped up NY office and stepped way out of his lane for what appear to be judgment issues. His statement a couple weeks prior to the election was probably dispositive.
2. The "liberal media" isn't. The NYT actually did coverage on the "Clinton Cash" book. As with Gore the MSM hated Clinton and figured to bring her down a peg. Trump was good for ratings so he got lots of earned coverage. Not caring and underestimating aren't the same.
https://www.vanityfair.com/news/2022/10/but-her-emails-behind-the-new-york-times-maddening-hillary-clinton-coverage
https://www.lawyersgunsmoneyblog.com/2023/06/the-clinton-rules-never-die
https://www.forbes.com/sites/brettedkins/2016/12/13/trump-benefited-from-overwhelmingly-negative-tone-of-election-news-coverage-study-finds/?sh=35fc528f3202
https://www.cnn.com/2017/05/23/politics/clinton-email-2016/index.html
3. Our ridiculous method of electing presidents privileges mouth-breathing.
4. Clinton did run a bad campaign.
Pinochet had Kissinger, Trump had Putin and Wikileaks. Great timeline we live in.
If everyone would have just voted for Hilary in 2016 & 2020, we could have had the plenty of the 1990s twice already. Now most liberals are either praying or hopefully wishing (or both) that Trump doesn't end up as 1st Emperor of the new United States Empire of Earth. What is the worst thing President Clinton ever did? Lie about his insane affair. What is the worst thing Hilary ever do? Fib about her emails. Who cares!? Now we're stuck with a former POTUS who wants to get reelected as POTUS so he can marry the Constitution & utterly destroy it. And now everyone thinks every other person is a good person if we all pretend that's not really going to happen in the end. Most of this is about the "Bad Faith" concept of the Existentialists. We believe we can't really do anything about Trump, so none of us care about Trump until it's too late to do anything about him. But perhaps that's why frequent reports about Trump have always made the news since he became POTUS?
ReplyDeleteWell.. Clinton did some pretty bad things other than have a sexual relationship with a subordinate and then lie about a blowjob.
ReplyDeleteRemember neo-liberalism? ---- deification of "market solutions"? deficit anxiety?
Remember the great incarceration? The "end of welfare as we know it? The pandering to the racist right (the "Sista' Solja moment, Lani Guanier)?
I'm probably forgetting some of his other 90s things.
That was B. Clinton.
I just received a very long email from M Susselman in which he defends --- in great detail-- his claims that 1. Smith needs to prove BARD that Trump knew that he had lost the election and 2. Smith will have a very hard time doing so based just on the evidence Smith advances in he indictment (e.g. the Raffensberg phone call, the conversation with Milley, the "you're too honest" colloquy with Pence, etc.).
ReplyDeleteI have no doubt that those contributors to the blog who have entered into this conversation would find Marc's "brief" quite interesting and challenging.
What should I do?
DZ: Sounds like an op-ed opportunity in the Washington Post, the New York Times, or the Detroit Free Press. It would be good, though, to leave out the assertion that Trump’s going to such lengths as inciting a riot and attack on the Capitol is strong circumstantial evidence that Trump really believes what he’s been saying. I’d also counsel omitting the claim that Smith isn’t such a great lawyer because he once lost a Supreme Court case 8-0, without mentioning that John Roberts once lost 9-0. Again, the op-ed opportunity sounds great and would offer an enormous readership.
ReplyDeleteEdit like the following, then post:
ReplyDeleteOriginal:
"Bill says Trump indictment is the tip of the iceberg in John Smith’s case against Trump. And Michael Llenos has really dumb thoughts..."
Edited version example:
"Bill says Trump indictment is the tip of the iceberg in John Smith’s case against Trump."
David Zimmerman,
ReplyDeletePost the brief please.
Marc should give his "brief" to an editor/writer or journalist who will take his prose and turn it into punchy (relatively short sentences, e.g.) op-ed-ese. And then submit it to, say, the papers Fritz P. mentioned. Or Marc should turn his own prose into op-ed-ese, if he's capable of doing that himself (not everyone who can write complaints, briefs, motions, and other legal documents is able to write a good op-ed).
ReplyDeleteDZ: You left out the Defense of Marriage Act from the Clinton bestiary. Bill signed it into law on 21 September 1996. Ironic that Bill was so strong a defender of conventional marriage. Strange bedfellows.
ReplyDeleteTo Fritz: Thanks. I knew I had left some things out of the B. Clinton list of greatest hits.
ReplyDeleteTo SW:
ReplyDeleteI think I should ask Professor Wolff's permission to post Marc's analysis.
To Professor Wolff:
What do you think, Sir?
David Zimmerman,
ReplyDeleteSince I also received a copy, I will post what I feel to be the key paragraph.
It's long and I have a doctor's appointment soon. Maybe I'll post other segments when I return. The paragraph in question does not contain any references to Marc's differences with other commentators here.
For those who may claim that I am underestimating Smiht, that he would not be so stupid as to bring charges that he could not prove, I would remind them of the fiasco he engaged in by prosecuting Virginia Gov. Robert McDonnell and his wife for allegedly taking bribes in exchange for performing “official acts” on behalf of the alleged briber. The alleged briber was a businessman who sought Gov. McDonnell’s assistance in arranging meetings to promote a nutritional supplement he had developed. He wanted the governors assistance in encouraging pubic universities in Virginia to conduct studies demonstrating the effectiveness of the supplement. The McDonnells received $175,000 in loans, gifts, and other benefits from the businessman. Smith claimed that they were bribes, and that McDonnell arranged meetings with Virginia officials to discuss the supplement. Smith claimed that these arrangements constituted “official acts,” which constituted a conspiracy to commit honest services fraud under 18 U.S.C. §§ 1343, 1349. McDonnell and his wife were convicted. The Supreme Court reversed 8-0, holding that the meetings which Gov. McDonnell arranged did not constitute the kind of “official act” contemplated by the statute. In sum, Jack Smith has the reputation of being an overzealous prosecutor who overreaches, and I believe that is precisely what he has done by indicting Trump on the flimsy charges outlined above. In fact, if I turn out to be correct, rather than protecting this country against Trump – who I believe is a very dangerous man and a serious threat to our democracy – he may have enhanced Trumps prospects of defeating Biden and being re-elected President. Will it have been worth it?
Great! All M.S. needed was a proxy or editor. Thank you, S.W.. Problem looks like it can be solved this way.
ReplyDeleteI think a conviction at trial, upheld at the Court of Appeals is not a fiasco, whatever the Supreme Court count. On this, MS is less than unconvincing.
ReplyDeleteI suggest that anyone who thinks MS is a good lawyer then they should read: US District Court Eastern District of Michigan Southern Division case # 19-13726 Marvin Gerber, et,Al v. Hebert Hershovitz.
ReplyDeleteIn a circuit court ruling a judge noted “Plaintiffs claims are ‘so frivolous as to be a contrived effort to create federal jurisdiction.”
Every legal claim made by MS was ruled frivolous and without merit in federal appeals court. The defendant’s claim for sanctions against MS was upheld resulting in an award of about $176,000.
And don’t forget how abusive he is. It’s not worth it.
McConnell v. US was about jury instructions on what constituted an "official act" under the relevant section of the USC and federalism issues. Knowing what we do now about the unofficial perks of being a Supreme, perhaps class distinctions were in play (Illinois governors seem to be excluded). The case could have been refiled with more careful distinctions but Justice chose not to. Comparisons with the current situation seem inapt.
ReplyDeleteSide issue but it seems that Eastman has requested a delay in his California disbarment hearing because he believes he will soon be indicted.
We should hold things in context (recall that "San Francisco Democrat" and "Massachusetts liberal" were things back then). The best that could have been expected in the 1990s was a left neo-liberalism and the success of the Gingrich Revolution in 1994 as well as the Supreme Court coup in 2000 ended any possibility of that.
Clinton was pretty good on public land issues (got a positive decision on one - only time I've actually had face time with a president while he was in office - like to think I was dispositive, who knows?). It took two failed was, a natural disaster, and a GD level financial crisis to move the needle on neo-liberalism.
Marc's argument, which I have in email form, has some passages which don't exactly insult, but do include negative reflections on some people who comment here.
ReplyDeleteThus, I hesitate to publish the rest of it and I don't know how to edit an email eliminating certain passages.
However, if people email me, I will forward them Marc's entire argument. That seems the easiest and most diplomatic way to deal with the situation.
email: vivepablo@gmail.com
Marc also sent me a reply to Christopher Mulvaney's email above, which I will forward to anyone interesed at the email address I noted above.
ReplyDeleteI do not take responsibility for any of Marc's views or for the content of his emails, but it seems like forwarding his emails is the right thing to do given the circumstances.