Graham’s Threat Does Not Help Trump’s Defense

A t least some of the Democrats chosen to be House impeachment managers are former state or federal prosecutors. So I have to think they got a hearty laugh out of a threat made by Senator Lindsey Graham (R., S.C.) in a television interview Monday night.

Graham is warning Democrats against calling any witnesses when the Senate impeachment trial of former president Trump kicks off next week.

This, of course, is consistent with the Senate Republican strategy, which is to oppose impeachment on constitutional grounds (the technical legal argument that the Senate lacks jurisdiction to conduct a trial of a non-incumbent official), while trying not to appear as if they are defending former president Trump’s conduct in the lead-up to, as well as during, the siege of the Capitol. Obviously, it would be much harder to pull off that two-step if the impeachment managers present the case the same way prosecutors present a criminal trial — viz., by a compelling demonstration of the conduct that proves the defendant’s guilt, along with the damaging consequences, which here include death and destruction.

Presumably, the managers envision spending a few days eliciting witness testimony and introducing audio-visual recordings in order to prove Trump’s speech, the violence that went on afterwards, the commander in chief’s failure to repel the attack on the seat of government, and the fact that Trump — even after the mob violence — praised people who, at his urging, had marched on the Capitol. Once the impeachment managers have done that, the national attention their presentation will draw could dramatically increase the political price Senate Republicans will pay for acquitting the former president.

As a savvy pol and a good lawyer, Graham knows this and wants to prevent it. But he can’t . . . and he’d be better off not trying. While it may play well on cable opinion shows, his threatening response to the unsurprising fact that Democrats plan to call witnesses is dunderheaded as a trial strategy.

The senator warned that if Democrats “open that can of worms,” Republicans would counter by having FBI witnesses “come in and tell us about how people pre-planned this attack and what happened with the security footprint at the Capitol.” If the impeachment managers call even one witness,” Graham insists, Democrats would be “open[ing] up Pandora’s Box.”

As anyone who’s been a prosecutor for more than a week knows, there are countless cases in which the relevant conduct or strategy of the law-enforcement officials is abysmal. Such cases are often far more of a black eye for the government than the impeachment case stands to be. In the latter, it appears that errors of judgment were made in assessing the degree of the insurrectionist threat and the need for beefed-up security forces. Clearly, such government miscalculations are not good; but in terms of humiliation, they don’t hold a candle to situations in which police use strong-arm or deceptive tactics to gather evidence, or when they engage in misbehavior that crosses the line into illegality.

In those kinds of cases, the defense lawyers often talk a good game about how, if the prosecution opens this or that “Pandora’s Box,” they will launch a supposedly devastating exposition of the investigative misconduct — portraying the government as engaged in a huge cover-up of corruption or incompetence. More than 99 percent of the time, such threats are lame, for at least three reasons.

First, it does not follow that, if government officials comported themselves badly, the defendant must be innocent. That’s why the defense lawyer’s threat never works as a threat: If the alleged government misconduct or incompetence were actually exculpatory, then the defense would just introduce it at trial as the reason the jury should acquit. When defense attorneys have truly devastating proof at their disposal, they don’t wait to be triggered by some discretionary prosecutorial decision before using it. They don’t threaten to use it . . . they use it. If you are aware of information that might win the case for your client, you prove it regardless of what the prosecutors decide to do.

Second, if what is at stake is not information that might win the case for the defense, but rather information that would just be embarrassing for some government officials, a competent prosecutor is unconcerned. For a prosecutor, the time for worrying about unsavory government conduct is when the decision is made whether to charge the case and go forward with a prosecution. Once you’ve done that, it is a given that embarrassing information might be disclosed at the trial. You’ve already calculated that this possibility is outweighed by the public interest in convicting the defendant of serious wrongdoing.

Third, government misconduct or incompetence is frequently a two-edged sword for the defense. That is why good defense lawyers often do not bother trying to prove it, and even advise clients to plead guilty despite it.

I had a terrorism case in the Nineties in which the defense argued that the FBI “set up” jihadists in a plot to bomb New York City landmarks in order to distract attention from earlier investigative missteps that left the Bureau unable to prevent the World Trade Center bombing. The problem with this defense (in addition to its being factually inaccurate), was that the supposed “set up” only made rational sense if members of the conspiracy had actually bombed the World Trade Center. Sure, the defense lawyers got to have some fun showing that one investigator or another had broken a rule or been negligently dismissive of the terrorist threat. But if this was negligence, that could only be because the defendants were even more dangerous than the FBI had appreciated. That made them look more guilty, not less.

Let’s stipulate for argument’s sake that it is true, as Graham suggests, that the peril posed by various self-proclaimed Trump supporters was more serious than the Capitol police estimated. And let’s assume that the FBI’s ensuing investigation has turned up evidence of significant pre-planning by groups of rioters. How does that help the Trump defense?

Logically, if the danger was more severe than what the security forces prepared for, that would make President Trump’s January 6 speech more irresponsible — to say nothing of his encouragements to supporters in the days prior to January 6 to come to Washington for what promised to be a “wild” time, as well as his public rebuke of then-vice president Pence while the crowd descended on the Capitol. If government officials irresponsibly underestimated the danger, then that renders even more damning the commander in chief’s failure to take meaningful action against the mob.

Let’s remember, moreover, that as president at the time, Trump was getting briefings about security threats based on the government’s best intelligence. For months prior to January 6, such briefings included threats of violence in Washington. If there was an intelligence failure here, then the president was not a victim of it — he was in charge of the government. And to draw the obvious comparison: The Capitol police, whatever their missteps, were at least trying to protect vulnerable people. The former president, by his rhetoric and conduct, was putting those people in greater peril.

Put it this way: If I were a prosecutor on this case, and Senator Graham threatened to “help” the defense by showing that many rioters preplanned their use of force, and that security forces failed to prepare adequately for what was a clear and present danger, my reaction would be: “Knock yourself out!”