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.