No lawyer likes to lose a jury trial, but if you really don’t like losing jury trials, you can always become a career federal prosecutor.
Do that, and you will be equipped with a lavish array of plea-bargaining carrots and sticks that can virtually guarantee that you are never threatened with a trial where the outcome is in doubt.
Only about two percent of your cases will ever go before a jury.
And even the two percent figure exaggerates your jeopardy. you will also enjoy the power to decide whether any crime ever becomes a criminal case in the first place. Unless the facts make it look like a sure winner to you, you don’t have to present the charges to the grand jury for indictment.
In his recent New York Times op ed, “Prosecute Trump? Put Yourself In Merrick Garland’s Shoes,” Harvard law professor and former Assistant Attorney General Jack Goldsmith provides a fascinating specimen of the career prosecutor’s mindset at work in surveying that second route to professional security.
Goldsmith’s Times essay tacitly anticipates that Attorney General Garland will not bring a criminal case against Donald Trump, recognizes that Garland will be arraigned in the court of public opinion (and the court of history) for that decision, then proceeds to offer a Brief in Garland’s defense.
There is no reason to think that Goldsmith doesn’t believe everything he says, but his op ed is an advocate’s document—one that takes full advantage of the barrister’s license to frame, emphasize and elide.
Having authored hundreds of those pleadings myself over the years, I know a tour de force when I see one.
Goldsmith chooses his trees carefully, his depictions and dispositions of the trees are artful, and the result is a highly polished product that successfully obscures the forest.
A defender in Goldsmith’s role is permitted to make the ridiculous claim that his client is being unfairly criticized for “gathering as much information as possible.” In fact, literally no one is against information-gathering, and Garland’s slow-walking the grand jury processes is itself impeding the harvesting of evidence.
The actual criticism of Garland stems from the apprehension—one which Goldsmith incidentally augments—that no quantity (or quality) of gathered evidence will ever spur Garland to decisive action.
Although cloaked in a rhetoric of prosecutorial modesty and deference, Garland’s declination of a Trump prosecution as defended by Goldsmith would constitute a radical arrogation of the jury’s power to decide cases, accompanied by a determination to duck as much accountability for the outcome as it is possible to duck.
Just Do Your Job, Not the Jury’s
Apparently, the argument will be that Garland’s prosecutors would have brought the case if only the poor dears on the jury could have been trusted to decide it. What we have here is “Leave this to us,” closely followed by “We only did that because of you.”
Goldsmith suggests that a declination decision neatly fits the parameters set out in the DOJ’s Principles of Federal Prosecution—and, so, would forward Garland’s “cherished aims to restore norms of Justice Department ‘independence and integrity’”.
That argument is problematic in several respects.
To begin with, it isn’t obvious that a manual designed to promote consistency across a vast number of routine federal cases is the best gauge for evaluating a situation that has never arisen in the history of the Republic in order to ensure that it never happens again.
Yes, you make a mistake about difference when you introduce an extraneous distinction into a case where the salient features are uniform—prosecute a Black defendant when you leave the similar white offenders uncharged.
But you also make a mistake about difference when you ignore a difference—the alleged offender is a child, particularly vulnerable to coercion—in order to preserve apparent uniformity across all offenses and offenders.
When a situation is unique, you have to face that fact.
And Goldsmith’s method of assessing the jury’s likely reaction to the evidence echoes a quintessentially Trumpian modus operandi. (Remember “People say you have the power?”)
In any real Brief, Goldsmith’s assertion that “Many have noted” that Trump can “plausibly” argue that he truly believed that massive voter fraud had taken place would require an identification of, and citation to, the “many.” (The “many” also appear elsewhere in Goldsmith’s essay, as in “many will be critical.”)
Who are the many? What makes their claim of Trump’s belief in a stolen election “plausible”?
Besides, while a “mistake of fact” or “claim of right” might excuse some illegal acts, it doesn’t automatically excuse every subsequent illegal act in all circumstances. Willful blindness doesn’t excuse criminality. The mistaken believe that the laws don’t apply to you doesn’t provide a defense.
Even if you agree that Trump sincerely believed his fantasy of a stolen election, he should have gone to court, not mustered a mob, pressured state election officials, and fostered the “hang Mike Pence” caucus.
The Principles of Federal Prosecution explicitly state that so long as the evidence is objectively sufficient to warrant a conviction, a negative assessment of the chances that a jury will agree to convict should not be seen as barring prosecution.
Given a sufficient amount of evidence, predictions about the chances of conviction are judgments on the expected performance of the advocates, not on the capacities of the jury.
The prosecutor’s job, whenever the evidence is there, is to present it in a comprehensible, persuasive way to a jury of twelve citizens. The January 6 Committee has provided a sketch of how it can be done succinctly and forcefully.
Of course, it is true that, as Goldsmith warns, in an adversary trial Trump’s lawyers will drag red herrings across the trail. They will only be doing what we defenders always do, following Niblack’s First Law of Criminal Defense: “As long as you are litigating something other than guilt and innocence, you are on the right track.”
There is no challenge more routine.
To duck the trial prosecutor’s work by claiming for yourself the power to decide the case pre-emptively, isn’t deference; it’s overreaching in the cause of self-protection.
A jury’s acquittal of Trump would prevent punishment; Garland’s decision to forego prosecution would go beyond that, and eliminate jeopardy. They are not the same thing.
Trump will have blazed a trail to impunity for his successors by the simple strategy of never admitting an inconvenient truth.
Just Do Your Job, Not A President’s
According to Goldsmith, not only may a prosecution be unlikely to succeed, even a successful prosecution is unlikely to “promote national reconciliation” and could “inflame our already-blazing partisan acrimony” and “consume the rest of Biden’s term.”
But achieving “national reconciliation,” calming our partisan acrimony and modulating the President’s workload are above any prosecutor’s grade in pay. And accepting these worries as excuses for inaction requires ignoring two particularly striking examples from our history.
The first of these examples is provided by the aftermath of the decisions of another career prosecutor and apostle of exactly the form of “prudence” Goldsmith (on behalf of Garland) espouses—Robert Mueller.
Mueller, who served as Special Counsel in the 22-month investigation of Trump’s connections with Russia during the 2020 election, found no evidence that the Trump coordinated with Russia but did not take a clear position on whether Trump obstructed justice, according to the American Bar Association’s summary of the case.
If you are happy with the situation bequeathed to us by Mueller’s “restraint,” then you will absolutely love the lawless executive branch we will inherit if Garland determines that Trump is above (or beneath) the law.
Does anyone believe that Mueller’s demure evasions promoted national reconciliation? Calmed our partisan acrimony?
The prosecutor’s role here is to assist the authoritative disposition of the cases necessitated by Trump’s conduct. Mueller did not seek that resolution. The Republican boycott of the January 6 Committee makes that Committee an unlikely vehicle for providing it.
But a unanimous verdict of a citizen jury after full adversary presentation of the facts offers us an unique opportunity.
I’ve seen this in many of my own cases: victims who don’t agree with acquittals—even defendants who don’t agree with convictions—seem to accept that the jurors did their best. Notorious, high-visibility verdicts that many feel are mistaken—think of O.J. Simpson—are accepted by the public as authoritative.
The commentary that suggests that prosecution is just too much trouble says that we should forfeit the only opportunity we have for a comprehensive airing and an authoritative determination of the charges.
A second example that ought to be on our minds is Watergate, and specifically Gerald Ford’s pardon of Richard Nixon.
I was in Washington that year, and I had no love for Richard Nixon, who, after all, had tried to get me and many of my generation killed in Vietnam. (Some 62,000 Americans died there.) But even I had to concede that a Nixon trial—at least if the defenders were any good—would have created distraction at best, dissension at worst: that Ford’s pardon accelerated putting Nixon and his crimes in the past.
But Nixon was not contesting his guilt. Trump in contrast, is proclaiming his innocence—in fact, screaming that others are guilty. Ford’s pardon of Nixon hastened the healing process but that was only because it did not pre-empt a full airing of the charges and the evidence.
Avoiding a trial in Trump’s case can only be justified by ignoring the President’s power to pardon Trump if and when that is what is required, in order to support the prosecutor’s self-aggrandizing claim that that decision is his.
In fact, our heated political climate is an argument in favor of prosecution and jury deliberation.
Tie Goes To….
Goldsmith’s arguments in favor of inaction exploit the fact that in this situation, a tie seems to go to the runner. If inaction is your preference, marshaling the detriments of any and all forms of action is a good strategy for a lawyer in Goldsmith’s position to pursue.
Goldsmith doesn’t actually have to persuade us in order to win; a standoff will do.
But, in the end, this is an evasion.
I’m certainly not the natural person to be citing hymns—in fact, I hear ghostly laughter in the background as I cite one now—but one old hymn, using a poem by James Russell Lowell, does come to mind:
Once to every man and nation
Comes the moment to decide
In the strife twixt truth and falsehood
For the good or evil side.
Like it or not, that’s where we stand now. However uncomfortable that reality may be for Attorney General Garland and his sympathizers, that’s what confronts us.
No amount of tap dancing can change that fact. You do the right thing, or you don’t.
See also: The Simple Case for Prosecuting Donald Trump, The Crime Report, by James Doyle, Jan. 11, 2022
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes comments from readers.
4 Comments
You state “A jury’s acquittal of Trump would prevent punishment.” That implies “he still was guilty in my eyes, because I’m a radical left wing type of guy who despises Trump, so his acquittal just allowed him to avoid punishment in my mind.” Your bias is showing, and mine will show too in what follows.
I’m surprised a lawyer would give an acquittal such a silly definition. If Trump were arrested and tried and acquitted, meaning he was not guilty of the crime charged, the repercussions would be enormous. Remember, he was already impeached twice, and never prosecuted by the Senate (impeachments which liberal Harvard Professor Alan Dershowitz himself said were ill-conceived and even unconstitutional – the second ridiculous impeachment occurring when he was out-of-office and a private citizen for crying out loud). We would now start our slow decline into a banana republic, arresting and jailing political opponents for whatever “crimes” the ruling junta could come up with (however obscure)….
…..Once the Republicans take back control of Congress in January, 2023, which every expert, even Democrats, believe will happen, will Republicans now turn their sights on impeaching Pres. Biden? Will they now start looking into the Jan. 6th riot and demand answers from the FBI as to what FBI personnel or informants were actively involved in that riot (Senator Cruz posed those questions via video conference questioning of a high ranking FBI official. She said she could not answer his questions about whether FBI agents and/or informants were involved in Jan. 6th because it was all a big secret). Most people took that answer to be a “Yes, we were involved, but we’re not going to admit it so we’ll just hide behind this nonsense of secrecy”). [this comment has been edited for space and clarity]
” literally no one is against information-gathering”
Eh-hem…………..Donald Trump?
“But Nixon was not contesting his guilt.”
Apparently, you haven’t seen the David Frost interview?
Pay no attention to my snark.
Excellent, well thought-out article!