“I don’t think a jury would convict him without proof of harm. I’m not sure I would…It has to be one-hundred-per-cent irresistible as a matter of law. There can be no fact, no event, no piece of evidence that could support any room for ambiguity.”
—NYU law professor and legal ethics expert Stephen Gillers, reflecting on the chances of conviction arising from an indictment of Donald Trump for violations of the Espionage Act and other statutes making the mishandling classified information a crime.
Gillers’ position is similar to that of Alan Dershowitz, who also said last week that while there appears to be sufficient evidence to charge Trump (based on the heavily redacted affidavit Trump was mocking in his meme above), it would be unwise to do so. It would also be unethical prosecutorial conduct unless there is a significant likelihood that Trump could be convicted. It is unethical to make “the process the punishment,” and Attorney General Garland knows it.
This is why the raid on Mar-a-Largo was suspicious as well as a terrible precedent in the first place. In the absence of any demonstrated urgency, the raid looked like an effort to “mess Trump up a little” by treating him like a drug kingpin or a Mafia crime boss rather than with the deference every other former POTUS has received. This made it political theater rather than legitimate law enforcement, executed by a struggling administration apparently terrified of the previous President and his passionate supporters.It is encouraging that Gillers would announce such skepticism, because the professor’s left-leaning bias has been a depressing marker of the ethics rot affecting most of our scholarly groups, including legal ethicists. (Review, for example, this Ethics Alarms post from 2020.)
In the New Yorker article by David Rhode titled, “The Dangers of Trump-Prosecution Syndrome,” a former Justice Department official agrees with Gillers saying, “The jury could say, ‘Who cares?’” But it’s obvious who cares: the people who furiously, fervently, hate Donald Trump beyond all logic, facts and reason, and who have been trying to bring him down by any means necessary since 2016.
This meme nicely sums up how the entire episode appears to a large segment of the country…
…because, at its essence, that’s what it is.
Rhode, as is typical of The New Yorker, can’t disguise his own anti-Trump bias. “Trump’s claims of planted evidence and “deep state” plots are false and dangerous,” he writes at one point. The claims of Deep State plots against Trump are “false”? Wow. It takes oodles of denial to write that today. What is dangerous is having a politicized domestic law enforcement agency of immense power abusing that power as the FBI has done repeatedly.
He also describes Trump as a “reality-television star turned President.” That’s a tell: Rhode is resorting to one of the earliest “resistance”/Democrat/ mainstream news media Big Lies used to smear Trump going back to the beginning of his first campaign (it’s #1 on the Ethics Alarms list.) Describing Trump as a reality TV star when he ran for President is like saying Dwight Eisenhower was a college president before he ran. Trump was a successful businessman, entrepreneur and corporation executive, and those roles provided the background and experience that arguably qualified him to run.
Later, Rhode writes, “During the Trump Presidency, Republicans, sometimes mockingly, accused liberals of suffering from ‘Trump Derangement Syndrome,” or what they claimed was an exaggerated fear or hatred of Trump.”
Gee, I wonder what would ever cause them to think that?
Ethics Alarms 
Anyone who thinks a jury would likely acquit Trump short any 100% proof of harm isn’t paying attention. “They” got to plenty of loyal Trump staffers for the J6 kangaroo court to get them to spill all sorts of nonsense for the cameras – staffers who on record were very vehemently in support of Trump’s innocence prior to being hauled in front of the inquisitors.
“They” will very easily get to any of the jurors and a few subtle suggestions of consequences and they’ll have a jury doing precisely what they want them to.
But the J6 hearings aren’t a good analogy, MW. Even B-celebrities like Robert Blake are usually acquitted when they are guilty of serious crimes beyond a reasonable doubt. Trump is a celebrity/President. Unless there is smoking gun evidence of his trying to sell secrets to China, he’s safe.
Even in DC, Jack?
I find myself skeptical, to say the least. But you never know, a unicorn jury who could be fair to Trump might be eeked out somehow. It’s not impossible, just quite unlikely.
Even in DC.
Juries are taken from voting rolls, and registration in DC is high. Still, less than 50% vote. It won’t be hard to find a jury of apolitical types who aren’t Trump Deranged. DC juries tend not to convict.
As long as Trump has a good lawyer, the jury selection process should weed out the most egregious partisans. And given Trump’s history of hiring exemplary lawyers…oh, shit.
All that may in fact be true; however, I don’t think it’s possible for Donald Trump to get a genuine fair trial in any court in the United States of America because there is absolutely no place in the USA where the long-reaching tentacles of anti-Trump propaganda hasn’t infected a pure bias of some kind against Donald Trump.
I’ll use myself as an example; I don’t like Donald Trump one bit in fact I’ve never liked him and I think he’s a rhetorical loose cannon and a narcissist, I consider myself to be a true advocate for innocent until proven guilty, I am dead set against the notion that someone is guilty until proven innocent, I’m driven by facts not innuendo, etc, etc. All that said I truly don’t know if my personal bias against Donald Trump, the person, would somehow be used as an overriding bias to convince me of his guilt if I sat on a jury.
The United States is full of anti-Trump people that will believe anything that is put in front of them if it supports their anti-Trump bias. Also; the United States if full of pro-Trump people that will categorically reject any accusation leveled against Donald Trump. I don’t consider myself to be part of either of those extreme camps and still I’m not sure that I could be completely “impartial”.
Anyone who thinks a jury would likely acquit Trump short any 100% proof of harm isn’t paying attention.
I think this is right.
Especially in Washington DC, who voted 5.4% for Trump and over 92% for Biden. It’s hard to imagine how a jury that would be accepted by anyone other than a partisan Democrat or Democrat-leaning independent as “fair and impartial” could be found in DC.
We have seen this befiore, with Rick Perry being indicted.
https://ethicsalarms.com/2014/08/17/ethics-dunces-abc-news-jonathan-karl-and-the-sunday-morning-roundtable/
There was absolutely no legal support for the indictment, and yet prosecutors took the case to a grand jury anyway.
The claims of Deep State plots against Trump are “false”? Wow. It takes oodles of denial to write that today.
Not so much denial as faith in the so-called Deep State. It’s amazing how the Left today has such rampant faith in government institutions they used to eye with great suspicion on their most generous days. In fact, most of the Leftist positions today (universal government health care, climate change, voting rights, et. al.) are all based more on faith than fact, and compare most favorably to religious devotion. It beggars belief how the roles of the Right and Left have flip-flopped.
What is dangerous is having a politicized domestic law enforcement agency of immense power abusing that power as the FBI has done repeatedly.
No question. I am fairly convinced that it is mostly due to “woke” leadership, but I consider that a rebuttable presumption. The rot may extend root-to-branch.
Like you, I think the FBI raid was timed to “blacken” Trump, and not-coincidentally, push him right back to the front page where the Leftists in Congress can run against him, the boogeyman of Democrats, rather than their opponent. And not-coincidentally, we have seen the Democrats’ congressional prospects improve slightly as a result.
If this had been the plan all along, it could not have been better timed. Which is why I think it is, in fact, the plan.
‘we have seen the Democrats’ congressional prospects improve slightly as a result.”
If you trust the polls. Right now the favored media narrative is that the Red Wave won’t happen—the GOP came up with similar fantasies in 2018 to keep its voters upbeat.
I don’t necessarily “trust” the polls, but changes in them are notable, if small. In recent days, they have started swinging toward Republicans again, which is exactly what I would expect. We can expect to see some more noise, but I won’t worry unless I see multiple toss-up Democrat leads outside the margin of error and Biden polling 45+%.
Neither appears likely to me.
And yes, the media is driving the “here come the Democrats!” talk. Prof. Jacobson at Legal Insurrection makes the point that it was ever thus: https://legalinsurrection.com/2022/08/operation-demoralize-is-back/
Or, maybe the raid was timed to distract from other things, such as . . . oh . . . the Inflation Reduction Act of 2022, one that will do no such thing.
jvb
Here is one of the points that Jonathan Turley raised this morning…
The Department of Justice and their supporting media literally lied to the public. This is a very important point.
When it comes to Donald Trump, it’s all about the anti-Trump narrative. The DOJ specifically and very intentionally lied to the public while at the same time illegally leaking cherry picked anti-Trump information contained in the affidavit to the media to smear President Trump. The trickling out of supposedly damaging narratives about President Trump has a verifiable pattern. The political left has shown its pattern of propaganda lies within their narratives so many times over the last 6+ years that it’s beyond me why anyone would blindly accept any anti-Trump narrative that the political left, their DOJ, their FBI, and their lapdog media actively push? The witch hunt continues.
Are these delusional people so embroiled in their Trump derangement that they don’t understand what real collusion is?
Collusion: secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others.
Conspiracy: a secret plan by a group to do something unlawful or harmful.
Soft Coup: A soft coup, sometimes referred to as a silent coup, is a coup d’état without the use of violence, but based on a conspiracy or plot that has as its objective the taking of state power by partially or wholly illegal means, in order to facilitate an exchange of political leadership – and in some cases also of the current institutional order. Additionally; a soft coup is used by populists who seek the centralization of power but do so under the pretense of improving democracy.
I always thought the paradigm was that a crime is investigated to find the person who committed the crime. The apparent paradigm shift now is you investigate the person to see if a crime has been committed. Can we predict what 87000 IRS agents will be doing?