Donald Trump, Abe Lincoln, The Phantom Document Trick, And The Almanac Trial

The most recent example of the news media’s self-destructive obsession with embarrassing and denigrating Donald Trump was the alleged “prop” Mexico deal scandal. this week. Writers from both the New York Times and Washington Post, including Post “Factchecker” Glenn Kessler, stated as fact that the paper the  President had held up as he talked about the border agreement with Mexico and said,

“In here is the agreement. We’re getting along great.Two weeks ago we had nothing,”

…was blank, a prop, just one more example of Trump lying to the American people. Other pundits and bloggers, like progressive Josh Marshall,  joined the mockery.

Then it turned out that some shots of the paper showed that it was a folded over piece with a printed document inside. Of course, that paper could have also been a prop, a recipe for gazpacho or something, but the President’s later remarks suggested that he was enjoying the spectacle (#47, 391 by my count, but I’m sure I missed a few) of the biased and incompetent mainstream news media further undermining the public’s trust in journalism by indulging its hatred for the President.

“I just give you my word, inside here … is the agreement,” he said . “That’s the agreement that everybody says I don’t have.” Finally, someone freeze-framed the video where the inner document could be read. The visible words…

“The Government of Mexico will take all necessary steps under domestic law to bring the agreement into force with a view to ensuring that the agreement will enter into force within 45 days.”

So the paper Trump held up was not a prop, an engine of deception, after all. Or was the President deliberately using the covering paper to beguile the news media into calling him a liar? “You were able to read it through the sunlight,” Mr. Trump told reporters at a press conference. “That was not anticipated.”

And suddenly the voice of Wilfred Brimley (from “Absence of Malice”) intrudes on my consciousness, in an altered version of his famous scene in the film, asking the President, “I could ask you if you set all of this up, but you wouldn’t tell me if you did, would you?”

“Mr. Trump, are you that smart?”

Oh no, of course not! He’s a barely functioning demented moron who should be removed by the  25th Amendment. It’s amazing how he keeps making his smug enemies expose their own hate and ineptitude. Just lucky I guess.

There is a legitimate ethical question of when it is wrong to use a prop document while calling it the real one. In law and legal ethics, the device is called “The Phantom Document” trick, or, less colorfully, “waiving papers in the air.” Sometimes a lawyer will hold a paper or a file and say “this” when the actual document he or she is referring to is on the counsel’s table. Or in a folder on the table. Or in a file at the firm office a block away. Or in the home office in another city. Or maybe the document being referred to doesn’t exist at all, like when Joe McCarthy waved a “list of Communists” in the air on television and had no such list.

Not only is the Phantom Document a real tactic, but it remains a controversial one. I am devoting a lot of time to it in today’s seminar, by pure accident, focusing on the most famous, if possibly apocryphal, example of the ploy, successfully used in a murder trial by Abraham Lincoln to acquit his (guilty) client.

William “Duff” Armstrong (1833–1899) was a a friend of Lincoln’s and the defendant in an 1858 murder trial. A prosecution witness said that he had seen Armstrong stab the victim, at night, from a fair distance away in the woods, but was able to definitely identify Lincoln’s friend because “the moon was bright.” Lincoln won the case by producing an almanac—the Farmer’s Almanac people swear it was theirs—to discredit the witness’s account by persuading the jury that Duff’s accuser couldn’t have seen the stabbing clearly because according to the publication, there was no moon.

Some accounts say that Lincoln entered the year’s almanac into evidence, showed the corresponding date to the judge and jury,  and the judge took judicial notice that if the book said there was no moon that night, there was no moon. There is a version of the story where Lincoln used an altered almanac, with a different year’s listings placed under the right year’s cover. At least one historian, however, has written that Lincoln simply held up an almanac so the witness could see it, and said, “Are you absolutely certain there was a moon that night?”

Realizing the he had been caught in a lie under oath and assuming that Lincoln’s almanac would prove it, the witness recanted his testimony, saying that, upon reflection, maybe there was no moon that night, but he was still sure that he saw Duff Armstrong stab the man. That was enough for reasonable doubt, and the jury acquitted, not believing that anyone could make out the identity of two figures from the distance involved in the dark.

In this version, cited by Alan Dershowitz among others, Lincoln never had to enter the almanac into evidence, and many were suspicious that that he had bluffed Duff. The ethics question is whether that was an ethical tactic or a dishonest one. Abe was zealously representing his client, suspected a witness was lying, and used a prop to get him to admit the truth. If the almanac really did show there was no moon, it wasn’t deception.

What if Lincoln couldn’t find the almanac for the year but was sure one would back up his theory? Would it be unethical for Lincoln to wave another year’s almanac in the air as a stand-in for the one that would have impeached the witness?

For over a century, the latter is what legend had Lincoln doing to get his client and friend acquitted. Stephen O. Douglas even impugned Lincoln’s honesty by implying in one of their debates that Abe used chicanery to fool the jury in the case. Then, about a century after the trial, Duff’s descendants found the old almanac Lincoln had used stashed away somewhere in an old house. Lincoln had given it to his friend as a souvenir. The  entry for the date of the killing indeed stated that there would be no moon that night.

If that was really the same almanac Lincoln used in the trial that is. Nobody knows for certain.

Duff Gordon did stab the victim to death, by the way.

And Lincoln knew it.

9 thoughts on “Donald Trump, Abe Lincoln, The Phantom Document Trick, And The Almanac Trial

  1. The eminently quotable “Absence of Malice” (of the many: ”I’m gonna have someone’s ass in muh briefcase” and “One that hired you is me. You got thirty day) is a sleeper, amongst my faves, and one I’ll jump in on whenever I see it’s being aired.

    • Yes. The “briefcase” line was one of my favorites; especially when he immediately apologized to the steno for his language, and immediately went back to inquisition mode… That whole scene was a gem, from the opening walk down the hall to the end.

  2. Similar experience when I was a young associate lawyer: I went with a senior partner to a meeting to negotiate a settlement of potential litigation. The partner pointed at my briefcase dramatically and said, “You don’t want Greg to go straight down to court after this meeting and file a complaint that he’s got in that briefcase asking for a couple hundred million dollars plus costs and expenses and punitive damages. That would just mean a lot of embarrassment and expense for everybody.” The other side settled.

    But in fact, there was no complaint in my briefcase. We hadn’t even even written one yet and our client had been clear that he wanted to avoid litigation at all costs. This partner was a real stickler about legal ethics and being a straight shooter, so I was surprised. When I made a comment to him about it later, he said, “I didn’t say you have the complaint in your briefcase now or that we would file it today. I said they don’t want you to have a complaint in your briefcase and file it today. There’s a difference.”

      • The incident stands for the principle that if you are a lawyer speaking to opposing counsel in your professional capacity, you should assume that he is choosing his words carefully. Maybe he’s not, but that’s the safer assumption.

  3. Unlike most journalists and all conventional politicians, Trump has a sense of humor. He’s also a tease and he’s has a very strong innate intelligence. Of course, all the usual suspects will simply liken him to Benito Mussolini and proceed to the next bit of fake news. The fact Trump is not a politician drives the elites absolutely bonkers. I was just thinking it’s heading to vacation season. Just think: Trump doesn’t have to crash at somebody else’s house on Martha’s Vineyard and suck up to various East Coast assholes. He can go to his own golf courses or his club in Palm Beach. Who knows if he really has a significant ownership interest in any of them. I suspect they’re owned by money partners or various banks, but the point is he doesn’t have to grovel like the Obama’s and the Clintons. He didn’t even go to an Ivy League school, for God’s sake. All of which drives the elites NUTS. And ain’t it delicious.

  4. I know it’s probably beyond the President’s skill set, but I would have loved for him to include the following in his remarks to reporters:

    “70 years ago, Franklin Roosevelt pointed out how his detractors criticized everything about him, including his wife and children, all the way down to his little dog. You in the press make sure to publish as many unflattering things about me as possible. You criticize my wife, you criticize my adult children, you have even allowed criticism of my little boy. The only thing you haven’t been able to criticize is the family dog and that’s because we don’t have one.

    For which you have also criticized us.

    The press laughed at FDR’s lament because the criticism was coming from his political opponents which many in the press opposed themselves. Today it is the press that acts as political opponents which is why you’re not laughing right now and why I’m likely to see a headline tomorrow that reads, ‘Trump Plagiarizes FDR to Criticize Media Coverage’.

    Do you understand the damage you are doing to our system of government when you rush to report anything that might undermine me, regardless of how petty it is? Can you not foresee how damaging this is to the Office of the Presidency and how even the next Democrat in the Oval Office will suffer as a result of the example your relentless antagonism has made? Do you not understand how misinforming Americans about the workings of the Supreme Court, the Congress and the Constitution itself fundamentally damages our country and will come back to haunt all of us, Democrat and Republican? Do you care?

    Or will you just print a headline that reads, ‘Trump Blames Media for “Damaging” America’?”

    I can dream, can’t I?

  5. It would seem to me that any competently written almanac would show the same lunar patterns in a given year. These things have been tracked by the Greeks for at least 3000 years, and the Hebrews for 5000.

    If a random almanac from that year showed no moon, I see virtually no reason to assume that Lincoln did not look it up in that or any other almanac prior to the trial, and was thus truthful when confronting the witness.

  6. Persistent luck is usually called skill. Either that or Trump is the luckiest man alive.

    Has anyone ever said “Jack Nicklaus is the luckiest golfer in history, winning all those tournaments.” I seriously doubt it.

    Giving Trump his due despite the obvious is impossible for the TDS crowd.

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