Jun.15

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How Will Trump's Lawyers Defend Him?

So far, Donald Trump is being represented in the Mar-a-Lago documents case by Todd Blanche, a former Manhattan prosecutor, and Chris Kise, a former Florida solicitor general whose specialty is civil cases, not criminal cases. However, it is believed that Trump is trying to strengthen his legal team by adding an actual criminal defense lawyer, if he can find one. This is proving difficult because numerous top Florida lawyers have already turned him down, either because they fear he won't pay them or they fear he won't listen to them or both. Also, many lawyers know that they will have to deal with Boris Epshteyn, who worked as a corporate lawyer for 18 months but thinks he is the world's best criminal defense lawyer. In addition, three of Trump's lawyers—Tim Parlatore, Jim Trusty, and John Rowley—have left his team recently, which makes other lawyers very nervous.

Absent a new top lawyer, Blanche and Kise are left to prepare Trump's defense. Here are some of the likely approaches they will take:

• Motion to dismiss: Attorneys routinely ask the judge to throw the whole case out. It rarely works but it is worth trying. The argument here is that Trump had the authority to declassify anything he wanted to up to 11:59 a.m. on Jan. 20, 2021. That is almost surely going to fail because the wording of the Espionage Act does not mention "classified documents" because the entire classification system came after it was enacted. It talks about defense documents, so their legal classification status doesn't matter. The lawyers might also argue: "Hillary wasn't prosecuted, so why Trump?" The prosecution will tell the judge: "Because Hillary didn't commit any crimes and Trump did." Also, Trump's innocence or guilt has nothing to do with Hillary's.
  
  
• Discovery: The prosecutors are now required to disclose all the evidence they have against Trump, something they haven't done yet. Most likely, Trump's lawyers will file motions for more discovery. Maybe they can discover some evidence that exonerates Trump. It is unlikely, but the lawyers will certainly do their best to see what they can find.
  
  
• Motions to exclude evidence: Special Counsel Jack Smith has piles of evidence, including documents, e-mails, notes from Trump's attorneys, audio recordings, and much more. His lawyers will try to get the judge to exclude some or all of it on the grounds that it was improperly obtained. Smith is a very experienced prosecutor and has a thorough knowledge of what is allowable, but a rogue judge could simply agree with the defense and exclude all manner of key evidence.
  
  
• Prosecutorial misconduct: If Smith or his team did anything illegal or unethical, Trump's lawyers will try to seize on that to get the case thrown out. But again, this is not Smith's first rodeo. He has a pretty good idea of what is allowed. It is unlikely he or his team of veteran federal prosecutors made any rookie mistakes, especially since they surely double-checked each other's work.
  
  
• An alternative narrative: Smith will say in court that Trump simply disregarded the law and took documents that weren't his and actively hid them from the National Archives and the FBI when they tried to retrieve them. Trump's lawyers will try to cook up some other narrative. It could be that he telepathically declassified documents on the way out the door (although that is a weak argument because, again, the Espionage Act does not formally refer to classified documents). They could claim executive privilege allows ex-presidents to take whatever souvenirs they want. They could make up any story they want, but Occam's Razor says that the simplest explanation (Trump thought he could get away with it) is the right one. The lawyers will have to think long and hard to come up with a simpler explanation. Maybe "He didn't know what was in the boxes," although at least one audio recording shows that he knew he had classified documents and didn't care.
  
  
• The trial date: This will be a hot potato. Trump's lawyers will do everything they can to get the trial set for after Nov. 8, 2024. The last thing Trump wants is having Jack Smith provide endless evidence of all of Trump's crimes in the middle of the election campaign. That will be the biggest news story in the entire world for probably a month. Will the judge set the trial date when Trump wants it? We don't know (but see next item). However, South Florida is famous for its rocket docket, where things normally move quickly. But maybe not this time.

A lot of what the lawyers will do is focus on process, not content. Trump clearly had documents he had no business having. That will be hard to refute, so they are probably going to talk about mistakes the other side made that invalidate evidence and stuff like that, rather than arguing that taking secret defense documents after you leave office is one of the perks of the presidency.

Somewhat ironically, Trump wouldn't be needing a defense if he hadn't been as stubborn as the rear end of a pig. In the fall of 2022, Trump hired Christopher Kise as his lawyer. Trump paid Kise $3 million upfront, so he must have had some regard for Kise's skills. Kise immediately got to work and wanted to negotiate with AG Merrick Garland to "take the temperature down," give Garland what he wanted, and hopefully avoid all charges. Trump refused to follow Kise's advice and stonewalled. Kise never talked to Garland and the AG appointed Jack Smith as a special prosecutor a few months later. There is no guarantee that Kise could have made a deal with Garland, but Trump didn't even allow him to try. It is noteworthy that Trump was not charged with possession of any of the documents he did return to the National Archives, only the ones he hid in his bathroom and elsewhere. If Kise had said to Garland: "We will vacate Mar-a-Lago and your people can search the place from top to bottom for as long as you want," Trump might well have escaped charges. But being a big bully has worked his entire life, so Trump figured it would work again.

What is still unclear is why Trump wanted to keep the documents. If he was planning to blackmail the U.S. government by threatening to sell them to Russia, China, or Iran if they indicted him, it appears he didn't even try. If he was planning to sell them to the highest bidder, the auction apparently didn't get any bids, because he still had them. If they had been safely stored in Moscow, the FBI wouldn't have found anything when they executed the search warrant. If Trump wanted them for bragging rights and to show friends (assuming he has any), just keeping two or three would do the job. All we can think of is he was thinking: "Who can stop me from keeping them?" Using them to blackmail the U.S. or sell them to Putin makes some sense from Trump's perspective, but it now doesn't appear that is why he kept them. Nor does it make any sense that he refused to let Kise try to get him off the hook by negotiating with Garland. It is hard to fathom what Trump was thinking. (V)