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Trump May be Planning to Dare the Judge to Jail Him [1]

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Date: 2023-11-05  

I just saw this story in Rolling Stone (via Political Wire): Trump and His Lawyers Dare NY Judge to Throw Him in Jail

As Donald Trump prepares to take the stand in the civil fraud trial that could destroy his business empire, the ex-president and his attorneys have settled on a strategy built on spite and unbridled antagonism. According to two sources familiar with the matter and another person briefed on Team Trump’s legal strategies, the former president and his lawyers are intentionally trying to provoke the judge into a nuclear-level overreaction.

Their reasoning is:

According to the three sources, several Trump attorneys and other key allies have advised him that the more the New York judge supposedly “overreacts” — including perhaps remanding Trump — the better their case for an appeal will be.

There have been other stories along similar lines in recent days about how the lawyers are deliberately trying to antagonize the judge so as to create an argument for reversal on appeal. Evidently the lawyers (and Trump) have concluded there is no way they can win the case either on the law or the facts. So they are pounding the table; in fact, they are overturning the table and jumping up and down on it.

“When a defendant honestly believes he can’t possibly get a fair trial from the judge, one of the tactics is to antagonize the judge to a point of causing reversible errors,” Dershowitz says. “That is what happened in the Chicago 7 case, and I was one of the lawyers on the appeal in that case. Abbie Hoffman provoked Judge Hoffman to such a degree that the judge made mistake after mistake. And courts of appeal often reverse convictions or verdicts when the judge has made serious errors.”

Dershowitz has no credibility any more as a legal scholar, though as a tactician he has a point. But I think they have misread Judge Engoron here; his handling of Trump’s attempt to weasel out of his most recent attack on the judge’s clerk shows he can keep a level head (though the Rolling Stone article said the judge had become “visibly enraged” on more than one occasion).

If I were the judge, I would, after sufficient warnings, levy a large fine on Trump, six figures at least, and require that it be paid out of his personal funds, not from donations. (The details of how to ensure that I leave to the experts.) Trump appears to think that (a) going to jail will improve his political standing among his base — and raise more funds — and (b) that his lawyers will keep him from actually going there.

The legal team has further assured Trump that even if he were remanded, they would likely be able to deploy a variety of legal tactics to keep him from spending any time behind bars. According to two other sources with knowledge of the situation, some Trump advisers have already reached out to certain outside attorneys to see if those lawyers would be interested in joining that potential fight to keep Trump out of jail. (Some of those lawyers have preemptively turned Team Trump down.)

IANAL, but I would expect that if a judge orders someone in their courtroom to go to jail (be remanded) for contempt, the bailiff hauls the offender off on the spot. Maybe they would be sprung in a few hours, but first they would have to go through the humiliating steps of being processed as a prisoner and placed behind bars. A man of Trump’s age and physical condition, not to mention (OK, and to mention) temperament, would not do well with that experience.

One last interesting comment from Rolling Stone:

Trump has been surrounded by lawyers who for years have begged him to show restraint or caution. In this case, he is buttressed by attorneys who appear more than willing to join in his preferred public relations, legal, and political tactics of innuendo and mud-slinging.

In short, Trump is being represented in court by attorneys who think as little of the legal process as he does. The legal process is not likely to be impressed. But look for fireworks tomorrow.

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[1] Url: https://www.dailykos.com/stories/2023/11/5/2203859/-Trump-May-be-Planning-to-Dare-the-Judge-to-Jail-Him?pm_campaign=front_page&pm_source=latest_community&pm_medium=web

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