adjusting expectations

One thing we’ve learned over the past few years is that lawyers who are good on social media and television aren’t necessarily good in the courtroom. In fact, the very traits that make a good media lawyer — bold assertiveness, hardass rhetoric, creativity with insults — not only don’t work in the courtroom, they are often forbidden in the courtroom. People watch a lawyer perform on TV and think “Wow, I wish I could get that guy to represent me” — well, be careful what you wish for. Hire a lawyer in haste, repent at leisure — in an orange jumpsuit.

But there’s another side to this distinction, one that works in favor of defendants, not against them: People are convicted all the time in the court of social media opinion who would never be convicted in a courtroom. In jury trials, the defense attorney only has to get one holdout. Another way to think about that, in relation to a very famous defendant: around 35% of Americans strongly support Donald Trump, while a single juror is only 8% of a jury. If you’re Donald Trump’s defense attorney and the prosecutor has an iron-clad case against your client, you only need to have gotten one diehard Trump supporter — probably someone smart enough or devious enough to disguise his or her passion — onto the jury, and your guy walks.

And that’s if the prosecution has an ironclad case. What if the case isn’t ironclad? What if there’s room for doubt? Then you don’t even need a Trump supporter: you just need one person to take seriously what the judge tells the jury about our legal system’s presumption of innocence. Moreover, as Ken White has explained, prosecutors have to prove, not just suggest, that Trump explicitly intended to overthrow a legal election, not that he ranted and raved, or that he had a reckless disregard for truth. Everyone, including his strongest supporters, knows that he has a reckless disregard for truth, but that’s not a crime. And, given his long history of refusing to allow any significant duscussions to be put in writing, he may well be able to make a strong case that he was only acting on advice of counsel. (A defendant who makes such a plea gives up attorney-client privilege, but if nothing is in writing, then that may not hurt him. We’d just end up with conflicting bald assertions. Former attorney says X, former client says not-X.)

This is why prosecutors offer plea deals: Jury trials are a kind of judicial Russian roulette. They will not want to offer any plea deals to Donald Trump, but in the end I suspect that that’s what they’ll do. And I also suspect that Trump will refuse to accept the deal, preferring take his chances in court.

So, to people who read the news and see all these co-conspirators copping pleas and think that justice is finally coming for Orange Man: maybe you should adjust your expectations? Like you, there’s nothing (aside from peace in the Middle East) that I’d more like to see than Donald Trump cleaning toilets in prison. But unlike you, I don’t believe it will happen. Based on my understanding of the actual law, not how things are discussed on social media, I figure that there’s less than a 15% chance of his ever being convicted of anything, and a near-zero chance that he’ll ever serve time. Alas.