Donald Trump is the client from hell, and it appears that he is getting the kind of legal representation that flows from that.
Donald Trump is the client from hell, and it appears that he is getting the kind of legal representation that flows from that. In his civil-fraud trial in state court in New York, his lawyers have already been sanctioned by the judge for bringing the same losing argument over and over again, and his lawyers have been reduced to asking the judge to stop rolling his eyes as they questioned witnesses. Maybe the eyerolling spat can be blamed partly on the judge’s partisanship, and the repetitive motions may be a result of lawyers who can’t say no to their clients’ demands, but other examples of bad lawyering are nobody’s fault but the lawyers.
In the federal case in D.C. over Trump’s effort to reverse the outcome of the 2020 election, his legal team on Monday filed a pair of motions to dismiss the indictment, one on statutory grounds that the indictment doesn’t allege the elements of the crimes, and one on constitutional grounds that the indictment seeks to criminalize political speech. In both cases, Trump’s lawyers inexplicably failed to raise serious defenses.
As I have detailed here and here, the central charge against Trump in this case is an alleged “scheme to defraud the United States” under 18 U.S.C. § 371 on the theory that he tried to thwart the presidential-election process by various dishonest means, including trying to get Congress to throw out Joe Biden’s electors and substitute his own “alternative” slates. The problem for special prosecutor Jack Smith is that the United States Supreme Court held unanimously in United States v. Gradwell (1917) that corruption of the elections process is not covered by this statutory crime. Gradwell has never been overruled. As recently as Arizona v. Inter Tribal Council of Arizona, Inc. (2013), the Court noted that under Gradwell, section 371 “did not reach election fraud.” Smith could try to get the Court to overrule Gradwell, or he could try to find some way around it, such as arguing that Gradwell focused on federalism issues, but the counting of electors by Congress suggests that Gradwell should be read narrowly. Either would require him to ask, essentially, for a new legal rule for this case, and the latter stratagem would still force him to narrow the case by dropping efforts to prosecute Trump’s attempts, as the indictment puts it, “to get state legislators and election officials to subvert the legitimate election results and change electoral votes” at the state level.
Smith would have to do one of those things if Trump’s lawyers had challenged the indictment under Gradwell. Amazingly, they did not even cite the case in their brief. Either they didn’t bother to do adequate legal research (or read National Review), or they somehow thought that an old case wasn’t still good law, even though it was a unanimous decision of the nation’s highest court that has never been overruled. Either is inexplicable and indefensible.
The second thing missing from the motions to dismiss is a challenge to Jack Smith’s effort to hold Trump criminally responsible for the Capitol riot. Paragraphs 96-121 of the indictment, covering seven pages of allegations, detail Trump’s role in summoning the crowd on January 6, inflaming them, and not doing enough once the riot started to calm them down. Most of these allegations are explicitly incorporated in the conspiracy to defraud count in the indictment, and all of them are incorporated by reference in the other three counts involving obstruction of an official proceeding and conspiracy against civil rights. Paragraph 104, for example, which is incorporated in all four counts, quotes at length from the president’s public speech, alleging that he “made multiple knowingly false statements integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification.”
This is, by any standard, an effort to criminalize that speech. Public political speech can, of course, be criminalized, but only in certain narrow circumstances. When the charge is that the defendant used his speech in order to encourage others to commit unlawful acts, there is a longstanding test under Brandenburg v. Ohio: There must be direct incitement of “imminent lawless action.” And yet, while Trump’s team challenges the indictment in general as a prosecution of statements of political opinion, it does not even bother to cite Brandenburg or argue that Trump cannot legally be held responsible for the rioters.
I’m not getting paid to defend Donald Trump. I don’t particularly care what happens to Donald Trump. I’m making these arguments just because I care about the law and bothered to do my homework. It is baffling to me that Trump’s own lawyers aren’t challenging aspects of the criminal charges against him that run foursquare into the teeth of Supreme Court precedents. But sometimes, bad clients end up getting the representation they deserve.