Discover more from Trump on Trial: the Law and Public Opinion

Analysis of legal issues and litigation strategy in the prosecution and defense of former President Donald Trump.

Mad King Lear’s Road To Acquittal: Why The Truth Of Trump’s Guilt Might Not Matter.

Jul 24, 2023

In 2018, the Pew Charitable Trusts published the results of a poll conducted by a bipartisan team of pollsters, Benenson Strategy Group and GS Strategy Group, that found that 83% of the American Public believed in the Presumption of Innocence.[1] But support for that principle, does not mean that people who read an account of a crime or see video of violent conduct on television or social media, don’t form an opinion as to the guilt of the accused. We all do, and there is nothing wrong with that. Indeed, in some situations, such as the detention of one accused of a violent crime, it is necessary to make a determination that an individual has committed a crime long before a jury has reached that conclusion based on evidence presented in a court of law.

While acknowledging that former President Donald Trump is entitled to be presumed innocent of crimes he has been charged with, and others he may be charged with shortly, for purposes of this discussion, I will presume that there is sufficient evidence beyond a reasonable doubt that: (1) Trump violated the Espionage Act, obstructed justice, and caused others to make false statements, as detailed in the indictment in the Southern District of Florida and (2) committed various federal crimes related to the Jan. 6, 2020 conspiracy to overturn the election in Washington D.C. that are likely to be charged very soon, as detailed in the “Model Prosecution Memo” published by a distinguished group of lawyers and law professors in Just Security earlier this month.[2]

Indeed, this article starts with the assumption that the evidence of Trump’s guilt of the crimes he allegedly committed in Florida and Washington D.C. is overwhelming and more than sufficient to satisfy a jury that he is guilty of grave offenses beyond and to the exclusion of every reasonable doubt.

Nevertheless, the truth of Trump’s guilt might not be sufficient to guarantee a guilty verdict in either district. Why this is so, and what the government should do to address the hurdles standing in the way of its efforts to hold Trump accountable, is the subject of this essay.

Unlike last week’s Substack, which addressed how Trump’s lawyers could use the Classified Information Procedures Act (CIPA) to hinder the government’s efforts to introduce classified evidence in the South Florida prosecution,[3] I will not begin with a discussion of facts that have come out publicly or the elements of the crimes being charged. My thesis is that none of this matters. Those reading this essay likely know enough about the allegations already to form their own opinion about this essay.

As I stated in an OpEd in the Miami Herald published in June, “Donald Trump’s Path to Winning at Trial Begins and Ends with Jury Selection,”[4] the case could end in a hung jury if the government fails to identify a lone wolf, a person who is willing to lie to sit on the jury in order to prevent a conviction no matter what the evidence showed. But here I address an even more difficult challenge, the likelihood that the jury will contain persons who believe that they can be fair, but nevertheless will reject much of the testimony presented.

Experienced trial lawyers, jury consultants, social scientists, will tell you that the party that presents the more compelling story often wins despite the losing party having the better entitlement to prevail based on the amount or quality of the evidence presented. That’s just reality. Jurors are human. Their verdict is based upon their judgment and experience. Most judges say that jurors get it right—that is, do justice—most of the time despite their limitations.

No story can be credible, much less compelling, if it is not tethered to evidence presented at trial, even if that evidence is only a witness’s demeanor on cross-examination. We will discuss how that can play out at trial later, but this is a foundational principle that must be kept in mind.

1. The Story the Government Will Tell

In the espionage, obstruction, and false statement prosecution in Fort Pierce, the government will paint a picture of a powerful man, accustomed to people obeying him or risk of losing their job, who believed that the laws that applied to others did not apply to him, who nevertheless had a need to impress others, and who—was a hoarder. The prosecutors will paint this picture through the testimony of employees and some of his closest former associates and advisors.

In the Jan. 6 conspiracy prosecution in Washington, D.C. the government will paint a picture of a man who could not accept that he lost an election to a “lesser man;” who had no belief in or commitment to our nation’s democratic institutions; and who was willing to subvert the electoral process to remain president. The government will paint this picture through various means, in particular, testimony from co-conspirators who will detail Trump’s role in the creation of a false slate of electors and efforts to convince Vice President Pence to throw out the votes of the real electors in favor of the false ones, making it possible for the House of Representatives to overturn the election of Joseph Biden and install Donald Trump as president. According to the authors of the Model Prosecution Memo, this scheme could have worked.

2. The Story that Trump’s Lawyers Will Tell

Consistent with what Trump has said publicly, Trump’s lawyers will paint a story that jurors can relate to. Like everyone else, Donald Trump had the right to keep the government’s nose out of his stuff. Consequently, he had the right to remove his stuff from the boxes before they were returned to the government. Eventually, the government would have gotten all its stuff back.

They will paint the picture of the deep state trying to prevent Trump’s election by trumping (sorry—couldn’t resist) up criminal charges despite the fact that no person or government entity was ever harmed. Through cross-examination of the government’s witnesses, Trump’s lawyers will show that Trump lawfully come into possession of the documents when he was President, lawfully learned their contents when he was President, and his continued possession of the documents did not compromise any national security interest since he never provided the documents or their contents to any foreign power.

In the case of the Jan. 6 conspiracy, Trump’s story will be trickier to pull off. It will depend on the success of the efforts by his political surrogates to disseminate a narrative that this is a political prosecution. Trump’s advisors may believe that if this story reaches the pool of people (the venire) from which the jurors will be selected, the jury will know Trump’s defense even if the court in Washington D.C. limits or shuts down his efforts to make this argument directly. This won’t be that difficult to do given the fact that an ABC News poll, conducted shortly after Trump was indicted, showed that a plurality of Americans, including some democrats, believe that the prosecution is politically motivated.[5]

Trump’s lawyers will also paint a picture of fear. Fear felt by the deep state of the consequence to them if Trump were reelected—which demonstrates the reason for the prosecution. Fear felt by government’s witnesses of the consequences of not testifying in the government’s favor.

Some of the government’s witnesses will be former close advisors as well as political actors outside Washington who made deals with government in order to avoid prosecution or entered guilty pleas in exchange for a promise of probation or a reduced sentence. There will also be witnesses who were privy to conversations or events who have no criminal exposure, but were compelled to testify and will admit that they felt intimidated by the government. The jurors will understand that no one wanted to sit next to Trump and face spending the rest of their life in prison and how motivated the witnesses are to please the prosecutors.

3. What Causes Stories to Resonate with Jurors

The party with the most compelling story usually wins. But any narrative must resonate with its audience to be believed. Whether a story resonates with any person, depends greatly upon the filters everyone uses to evaluate information they receive. Psychologists and social scientists and experts on sales and communications refer to these filters as cognitive biases, and there are at least 50 biases that impact a person’s perception of reality. What follows is a discussion of the biases most likely to impact the Trump prosecutions.

a. Confirmation Bias

When human beings have little time for reflection, our brains rely on shortcuts (known as heuristics) to allow us to reach decisions quickly. One of those shortcuts causes us to base our judgment on what we have learned from others or from our own experience. As neuro-imaging studies had shown, one such shortcut, confirmation bias,[6] is hardwired into our brain and likely arose when early humans had to make quick decisions, where making the wrong decision could mean death.[7]

This heuristic has a powerful hold on our minds. It causes us to rely upon what we know to be true, even when there is concrete evidence that what we think is true, is not. How many times have survivors of a disaster said that their survival was a miracle or the work of God, disregarding the fact that they were the only person to have lived where 300 others died. This is not just a statement made by the survivors of a tragedy. It is a sentiment often expressed by first responders when they rescue a child under the rubble of a collapsed building

Millions of people believe that the 2020 election was stolen, that Trump actually won, and that there is evidence to prove it. When confronted with the fact that 86 judges who considered challenges to the election rejected those challenges and dismissed the lawsuits, many of whom were Republicans, election deniers will assert that these decisions were based upon technicalities unrelated to the merits of the claims. They won’t consider the report prepared by a distinguished group of Republic conservatives who reviewed the 86 decisions and found them to be on the merits. Those conservatives are dismissed as RINOs, Republican in Name Only.

Another example is evolution. While evolution is still referred to as the Theory of Evolution, it is no more a theory than the Theory of Relativity. As with Relativity, every legitimate scientific inquiry and experiment conducted by scientists for over a hundred of years has proven that evolution is a fact. But despite this evidence, there are millions who believe a handful of scientists advocate either the irrefutability of Genesis or the doctrine of intelligent design.

As we can see from the examples above, confirmation bias is no longer limited to snap judgments made in response to seeing the outline of a jaguar in a forest (our brain also causes us to jump to conclusions based upon visual data that may be false—but better safe than sorry). Today, we are plagued by the effects of confirmation bias even if we have adequate time to examine contrary evidence.

b. Backfire Effect

Related to confirmation bias is the backfire effect.[8] This occurs when the greater the amount of contradicting evidence that a party presents causes the person holding contrary views, to dig their feet in the sand and insist on the rightness of their erroneous belief.

c. Fatigue

People remember what they hear first and what they hear last. This is the principle of primacy and recency.[9] That is one reason why attorneys spend most of their closing arguments reminding juries what different witnesses said and what physical evidence showed. But people have a limited attention span. The longer a trial, the greater the likelihood that jurors will have forgotten what witnesses said. And at some point during a lengthy, closing argument, which is intended to remind jurors what the government proved in months 2-6, some jurors will just tune out. This is why young prosecutors are taught to keep their cases as short and focused as possible. But sometimes the breadth and complexity of a crime can only be described through the testimony of a large number of witnesses and the presentation of thousands of exhibits. So this is another human process that could impact the government’s case in the Jan. 6 prosecution.

4. How Trump’s Lawyers Will Convery Trump’s Story

a. Mar-a-Lago

In last Monday’s Substack, “How Trump’s Lawyers Could Wield The Classified Information Procedures Act (CIPA) As A Sword Against The Government’s Espionage Act Prosecution,” jonmay.substack.com, I explained that the case was not about Trump’s retention and concealment of classified information, but about his continued possession of NDI, information related to the national defense. As I explained, because much of the NDI was classified, CIPA will make it difficult for the government to counter an argument that a particular document was not related to the national defense. At the end of that essay, I promised to explain how Trump’s lawyers will address the obstruction of justice charges.

In support of those charges the government will present a video showing the removal of almost all of the boxes from a storage room before a Trump lawyer could search the boxes for classified information, testimony from persons who heard Trump conspire with others, including lawyers, to prevent the National Archives and a federal grand jury from receiving the NDI documents in his possession, and finally, false statements he directed others to make.

There is one fact, however, that jurors will know, and that Trump’s lawyers will be forbidden from arguing to the jury, or even mentioning. That fact is that President Biden did the exact same thing Trump is accused of and is not being prosecuted. Now, because Trump is not permitted to make this argument, the government will not be able to explain the reasons why the situations are very different. Consequently, jurors will be left with their preconceived notions about the parallel between the two situations; which will only serve to confirm their belief that this is a political prosecution. And the government will have no way to do anything about it.

Some facts the defense will not be able to refute. There is a fundamental principle in criminal defense practice, that you cannot prevail at trial if your theory of the case is inconsistent with incriminating facts that the jury will believe, what Attorneys Roger Dodd and Steve Rench call “facts beyond change.”

One such fact is that Trump knew the boxes he took from the White House contained documents that had not been declassified. To prove this, the prosecutors will play a video interview of Trump where he admitted that he knew the boxes contained documents that were still classified. (Over the government’s objection, under the doctrine of completeness, Judge Connor will likely permit the defense to play Trump’s statement that he had a right to hold onto his boxes because he wanted to remove his stuff). The government will also play the recording of Trump disclosing a classified document to companions on a golf course, and telling them what the document was about, and hearing an aside from one of his aids that they were now in trouble.

In response, the defense will tell its story through cross-examination, asking every witness to confirm that there is no evidence that Trump gave any classified document containing NDI to any foreign government; that there is no evidence that anything Trump did damage our national security. That one fact will trump (there I go again) all other evidence in the government’s case.

b. Jan. 6, 2020 Conspiracy to Overthrow the Election

The government will present testimony that Trump knew he had lost the election but claimed that the election had been stolen in order to convince others to violate the law in order to make right, the wrong done to Trump.

Defense counsel’s first line of attack will bring out the witness’s motive for testifying. Witnesses often insist that they are telling the truth, even as they concede that they would not be a witness but for the government making a deal with them. Experienced lawyers rarely confront witnesses by accusing them of lying. It is always more persuasive when counsel leads jurors to a conclusion but allows jurors to reach that conclusion themselves.

When possible, counsel will confront witnesses with prior statements denying any wrongdoing. This will give jurors a justification for disbelieving witnesses consistent with their preexisting cognitive bias.

If jurors are convinced that the witnesses are telling the truth, that is a fact beyond change, and Trump’s defense will have to be crafted in such a way that it is not inconsistent with Trump’s knowledge that what he was telling millions of Americans he knew to be false.

This is what the authors of the Model Prosecution Memo call the Big Lie. The lie that launched a thousand followers on a course to overturn a legitimate election. In the face of such witness testimony, will jurors who previously believed the election was stolen, turn on Trump? Or will they see through that testimony and harden their belief that Trump was elected president? If they persist in the belief that the election was stolen, that Trump was reelected, and that this prosecution is an effort to keep Trump from being reelected in 2024, does it matter that he violated the law in an effort to preserve democracy? Such a defense does not contradict the facts beyond change; in fact, it keys into at least some juror’s cognitive bias that the Jan. 6 prosecution is a politically motivated effort to subvert our democracy.

It is important to keep in mind that we are discussing the opinions of millions of everyday intelligent Americans, not right-wing fanatics. And they are reflecting organic processes that affect us all.

The defense is not entitled to a jury made up of people who were unaware of the allegations against the defendant before they walked into the courtroom. The defense is not entitled to a jury made up of people who had no preconceived notions about the defendant’s guilt. So long as a prospective juror can satisfy the court that they can put aside any of their preconceptions and presume the defendant innocent, they are qualified to sit on the jury.

In 99.9 percent of cases, this benefits the government, because it is just human nature for people to conclude that a person accused of a crime must be guilty; otherwise, why would they be on trial? But the government will not come into court armed with that advantage here. In the Trump prosecutions in Washington D.C. and Fort Pierce, Florida, it is likely that the venire will include people who already believe that the government’s prosecution is politically motivated.

I believe that the vast majority of jurors make a genuine effort to follow the court’s instructions, and put aside what they thought were the facts before they were selected to be on the jury. However, assuring the court that they can put aside their beliefs, does not mean they are capable of doing so given the wiring in their brain. Accomplishing that requires cognitive tools that few people have and neither prosecutors nor defense counsel nor the court provide the jury.

There was a time when having a jury consultant sit with counsel to help select a favorable jury was de rigueur among civil and criminal lawyers. In the OJ Simpson case, OJ Simpson’s lawyers used a jury consultant at trial, and the LA prosecutors used a jury consultant also. In the government’s prosecution of General Manuel Antonio Noriega in 1992, we had our own jury consultant help with the selection of the jury; so did the government. But since then, at least in federal court, consultants have become of limited value during jury selection since most judges conduct the voir dire and lawyers are rarely allowed to conduct the kind of examination that would reveal a juror’s biases.

However, consultants are very useful in conducting mock trials in which counsel can try out different arguments to a group of people drawn from the same geographic area that the actual jurors will be selected from. This can be an invaluable tool for lawyers who may have convinced themselves of the persuasiveness of arguments they constructed that no one else buys. It can also be used to determine whether a particular witness is credible. I once used a focus group to prove to my client that testifying, which he was insistent on doing, would be suicidal. He changed his mind after he listened to the “jurors” discussion about his “testimony” from behind a one-way mirror.

But the government can’t do that in this case. Prosecutors will be too concerned that arguments they share with a mock jury will be disclosed (despite pledges not to) to the defense. That will leave them with testing their theories and themes with their colleagues and staff.

So how can prosecutors empower jurors with the tools they need to confront their own biases and look at the evidence dispassionately?

That’s the subject for next Monday’s Substack. Sign up at jonmay.substack.com. It’s free.