The talking heads on TV all say the same thing about the latest Trump indictment. His defense, they say, will be that he really believed that he had won the election and it was been stolen from him. Never mind whether that is true or false. Almost nobody ever asks the obvious question, How would that defense be presented in the trial? Look, the prosecution and the defense will offer opening arguments. Then the prosecution will present its case: witnesses will be called and questioned and then cross-examined, exhibits will be introduced, etc. This will take two weeks, four weeks, however long. Finally, the prosecuting attorney will say “The prosecution rests.” Then it will be the turn for the defense to present its witnesses, documents, and other evidence. Let us suppose that the aim of the defense is to demonstrate that Trump really believed he had won the election. How would they establish that in court? So far as I can make out, all the people who were talking directly with Trump during and after the election are either witnesses for the prosecution or co-conspirators (and, we may presume, eventually defendants and their own trials.)
The defense is not permitted to introduce into evidence
statements that Trump made to the press or on his Twitter account or elsewhere. I think they may not even be permitted to enter into evidence statements he made to other
persons directly about his beliefs. They are only permitted to enter into
evidence his beliefs if he takes the stand and testifies. And
the opinion of everybody I have heard talk about this case is that that would
be a total and complete disaster for Trump.
When this finally goes to trial, I think it is quite
possible that Trump will have no defense. He is not required to offer one, of
course, but just imagine the situation. His
lawyers in the document case face the same problem. The only way they can
establish that he believed that the Presidential Records Act give him a right to take the documents that he took, even though that is obviously false, is if
they call him to the stand and once again, that would by universal agreement be
a disaster.
The sociologist Durkheim taught that what is taken as reality derives from the collective conscience. That means Durkheim might argue that Trump is saying that whatever Trump and his followers take to as the truth is the truth.
ReplyDeleteYou can ignore the mechanics of the truth and the law- the game is for Trump creating a new order in which he is the truth.
L etat c est moi (forgive my botching the French) or l Vrai c est moi
Remember people take falsehoods as truth all the time- take for example the Christian Church with its ridiculous notion of God. Many of the MAGA base are old pros of self delusion of a self serving kind, and how are you going to procure a jury free of the one third of the country who worship Trump and view the trial a sham?
ReplyDeleteHoward,
"how are you going to procure a jury free of the one third of the country who worship Trump and view the trial a sham?"
It should be fairly easy in the District of Columbia, not so easy, but possible, in Florida.
I recall reading somewhere that members of the Jury that found against him in the defamation case in NY were MAGA Republicans who followed the judge's directions and did their duty. And think of all the Republican election officials in Georgia and Arizona who voted for Trump--and did their duty when it wasn't easy do.
Howard,
ReplyDeleteIt's not unreasonable to consider DeSantis, or other Republican supporters in D.C., to convict Trump to help their candidate. I expect this trial to be the mother-of-all Voir Dire events in history.
Also, Durkheim and Darwin are dead to these people. If only William Jennings Bryan was Trump's attorney...
Trump supporters who aren't merely evil/deranged live in a bubble - i.e. they never have to deal with the real world. Having to listen to the prosecution will rock their world. Also, jurors usually take being a juror seriously.
ReplyDeleteDurkheim was and is a major figure in sociology and the social sciences more generally, but he is far from being even close to a household name in the U.S., even if one restricts the field to those w a certain level of formal education. Not like Marx, Darwin, Freud, Adam Smith, or even, probably, Max Weber.
ReplyDelete