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The fight over the jury is in high gear



We can see with greater clarity the outlines of Trump’s defense. He expects to be slammed by Mueller, possibly criminally indicted for obstruction, if not collusion. He knows it’s coming and, street fighter that he is, is laying down his strategy against the oncoming freight train.

And that strategy is—ta da!—self defense! “You fight back, oh, it’s obstruction,” he declared on Wednesday, at his surprise popup at the press gaggle. This is, of course, the man who, when he’s attacked, “will punch back 10 times harder,” a man whose political mentor was the ruthless, perfervid Roy Cohn, Joseph McCarthy’s hitman. Trump got royally pissed at Jeff Sessions after Sessions recused himself because he thought he had (in the immortal words of Rush Limbaugh) “a brawler and a fighter in the attorney general”—someone just like Trump himself.

So there’s the strategy: not a legal defense, but a political one. But If Mueller charges Trump with legal crimes, what good is a political defense? The Nazis tried that at Nuremburg, and it didn’t work. You need a strong legal defense to be acquitted in a criminal prosecution. Well, Trump knows he has no legal defense. Mueller’s got him dead to rights: there’s no way Trump can spin, finagle, bluff, lie or insult his way out of this mess.

But things don’t end with accusations. There has to be a trial by jury. It could be in a public courtroom, it could be in the United States Senate, or it could be in the court of public opinion. And clearly, it’s the latter two that Trump is banking on.

A criminal trial in open public court is highly unlikely to the point of impossible. Most experts believe the only way to prosecute a sitting president is through Impeachment. So the proper legal venue for a trial would be in the Senate, following Articles of Impeachment voted on in the House of Representatives.

Under its current Republican lineup, it’s impossible to believe the House would vote Articles of Impeachment. Trump is already working to shore up his House support among Republicans to ensure that Articles never happen. But being a fighter, he has to consider the dire possibility that Articles do emerge when Democrats retake the House next year. Then, Trump’s strategy moves to the Senate. And that’s where his defense becomes, “Hey, I was attacked by Mueller, by a rogue FBI, by Democrats in the Justice Department, by the swamp creatures of D.C. All I’m doing is fighting back.”

Fighting back is good strategy. In courtrooms, it’s often a defendant’s best defense. “Yes, I killed him, but I did so because he was trying to kill me.” A jury wouldn’t expect someone under attack to just stand there, waiting to be murdered. People are entitled to defend themselves. It’s the American way. There would be a certain amount of sympathy for Donald Trump were he to paint himself as the innocent victim.

But what is the difference between “fighting back” and obstruction of justice? The United States Code, which is the official codification of laws of the U.S., defines a person who obstructs justice as “whoever . . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice…”

With everything we know that Trump did (and there may be additional things he did that we don’t know, but that Mueller does), it’s clear that Trump acted to stop or slow down the investigation. As of last night, we now even know he wanted to fire Mueller last summer! Did he use “threats”? It’s not clear if he actually threatened Comey in that now-infamous one-on-one meeting, but a case can be made that he did. Senator Mark Warner said of that meeting, “the president appears to have threatened [the] director’s job while telling him ‘I need loyalty. I expect loyalty.’” Did Trump use force? No one’s alleging that he did. Were there “endeavors to influence, obstruct, or impede, the due administration of justice”? Absolutely, and they are ongoing.

So Trump is already working on influencing his possible jurors in the Senate, and his strategy seems to be working: the few Republican Senators who opposed him are shifting in their attitudes, with Corker and Graham in particular now more favorably inclined towards him. As for the court of public opinion, Trump, with his “fighting back” comment, has given his Republican base a huge weapon. Of course Trump was under attack (they’ll allege). An unpatriotic cabal of America haters, led by Hillary Clinton, Obama, Comey, the New York Times, Chuck Schumer, Nancy Pelosi and [fill in the blank] conspired to topple a duly-elected President of the United States. Trump was perfectly entitled to do whatever he could to protect, not only himself personally, but the Office of the President.

This argument is strong and, for Trump’s defenders, persuasive. It draws a very fine line between obstruction of justice and self-defense. Of course, not even Nixon attempted to redefine “obstruction of justice” as “fighting back,” the way Trump is doing. Nixon and his lawyers accepted “obstruction” in its traditional sense and gave in to the inevitable, with Nixon resigning before a Senate trial could occur.

Well, this is the stuff trials are made of: quibbles over evidence, over meanings, over intentions. And it’s what defense lawyers do all the time: work to get a jury that will be most favorable to their client. This is how we should interpret Trump’s “fighting back” remark: the battle of jury selection, in the Senate and in the court of public opinion, is underway.

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