My old buddy and fellow curmudgeon, Mark Herrmann, ponders whether there is any tactical benefit to the antics on display at the two current civil trials against Donald Trump. This is not the way most clients behave, or are instructed to behave by their lawyers, if they have any desire to obtain the best possible outcome.
Lawyers know that judges matter, so lawyers handle judges with kid gloves. Lawyers laugh at judges’ jokes. Lawyers tell their witnesses to obey the judge’s instructions: “Don’t fight with the judge. Do whatever the judge says. If the judge asks you a question, don’t evade; answer it directly. The jury will be watching; you cannot win a fight with the judge.”
So what has Donald Trump chosen to do in the two civil cases — Letitia James’s fraud case and the E. Jean Carroll defamation case — that are ongoing in New York? He’s chosen to antagonize the judges.
There are some unique aspects to cases involving Trump, beyond the obvious that the facts and law are against him (pounds table). The first is that he’s engaged in two somewhat parallel endeavors simultaneously, litigation and candidacy. While they do not necessarily require him to sacrifice one for the other, he’s used litigation to his advantage in his candidacy to present himself as the weak and pathetic victim of the government, to castigate the government for being evil and to fund raise in order to pay the lawyers who never get paid beyond their initial retainer.
But why not try to win, or at the very least achieve the best possible outcome? Is it because he knows that he’s going to crash and burn, those nasty facts and law getting in the way.
But what about the stunts he’s performing in the courtroom. If you did it, would you get away with it? Would a judge, any judge, be as tolerant of your refusal to abide the judge’s admonitions or would you get your yap duct-taped right before they slipped the shock collar ’round your neck?
In the ordinary case, of course, the client is a regular guy: Joe Bag o’ Donuts. Poor Joe has no chance in a spat with the judge. In Trump’s case, the situation is different: As always, the judge is an authority figure, wearing the robe and presiding over the proceedings. But in Trump’s case, the client, too, is an authority figure — the former president of the United States.
Is it possible that Trump can get away with his shenanigans?
The conventional wisdom says that Trump is about to get hammered for his multiple tactical mistakes.
Then again, the conventional wisdom has never before seen a case in which a former president was being tried. And the conventional wisdom said that a candidate who was caught on tape boasting about grabbing women by the genitals would never be elected to office.
Maybe the conventional wisdom is wrong.
There are two lessons (possibly more) that are being taught as a result of Trump’s shenanigans. The first is that defying judges is a cool, fun and effective thing to do. Otherwise, why would Trump do it, because he’s a stable genius? The second is that Trump gets to do things that others, mere mortals, do not. Neither of these lessons serve either the interests of the legal system or clients, most of whom do not have millions of other people’s dollars to throw into the courthouse toilet.
Mark is betting that the consequence of Trump’s tactics will ultimately prove extremely detrimental. No doubt the lawyers will be blamed, because blaming others for his failures is his superpower, but is he right or has Trump already written off the losses in his quest to retake the White House. Is conventional wisdom wrong and Trump smarter than the average bear?
*Tuesday Talk rules apply, within reason.