I have been a criminal defense lawyer for a while now, and, I like to think I’ve seen all there is to see in different types of criminal defense strategies. Every lawyer has her own style. And because a lawyer’s style is a natural extension of who she is deep down, if you spend enough time in court you start to see a wide range. Some lawyers are cerebral, some are passionate, and some are just ridiculous.
Criminal defense lawyers also seem to push the limits of acceptable style more than in other practice areas. We are a group that loves press conferences, wearing cowboy hats to court, repeating slogans, shouting over prosecutors, and just about anything else you can imagine. Maybe this is because criminal courts themselves tend to be looser and filled with people with a more fluid sense of decorum than say, the Court of International Trade. Maybe this also has something to do with criminal defendants fighting for their freedom, and not just someone else’s money. They tend to appreciate a lawyer who really puts it out there and many lawyers oblige. And maybe this has to do with the subject matter. I mean, few other lawyers have to go after alleged victims of sex crimes on a regular basis.
Today, though, I realized that what I considered to be outrageous and flamboyant defense tactics, and even boundary-crossing displays, were mere novice efforts when compared to the brilliant tactics employed by Donald J. Trump.
In a great article in Today’s Washington Post, David A. Fahrenthold, went into great detail about how Mr. Trump has apparently been involved in pretty substantial chicanery involving the use of his charity’s funds. Mr. Trump apparently repeatedly paid legal bills that he or his businesses had amassed with funds from his personal charity. Using the charity money for non-charity legal obligations “clearly fit the definition of self-dealing” and was “brazen” and “shocking” according to very legit lawyers, Rosemary E. Fei and Jeffrey Tenenbaum. Mr. Trump also appeared to have been caught red-handed, as he submitted to various courts copies of checks from his charity that he had used to pay these fees.
What should a defense lawyer do in this situation? Advise his client to plead the Fifth? Get out ahead of the indictment and start negotiating with the U.S. Attorney’s office?
That kind of thinking will get you nowhere.
Mr. Trump attacked the Post, calling the article “biased” and saying it was “peppered with inaccuracies and omissions.” Of course, Mr. Trump did not identify a single inaccuracy — another master stroke. He then, apropos of nothing, railed against the “corrupt Clinton Foundation,” devoting more space in his response to that than anything else.
I’ve never seen a defense lawyer have those kind of stones. This isn’t even a defense. It’s just words thrown in every direction, attacking anyone and everyone nearby. Even the most audacious of us would expect any sane judge or jury to see through that. But that’s the genius of Mr. Trump. He is so brazen that, not only does he act like this, but he gets away with it.
That’s the takeaway. The key to Mr. Trump’s success, and the successful defense of his nonsense is simple and incredible brazenness. Get sued for fraud? How about launching a racist attack on the federal judge sitting on you own case? Would you try that? Because you obviously said no, you wouldn’t succeed. To win it takes instant and absolute dedication to the perfect rightness of your position, no matter how wrong you are.
I’m positive that Mr. Trump will come out from this scandal just like every other in the astoundingly-long list of misdeeds and scandals that he has already survived. He will come out without a scratch.
Maybe this is a Trump University that I should actually enroll in.