Posts Made By: James Brown

Originally Posted by Rod Kaufman

Er, ah, just for the record, you do understand that Trump's defense, as per his lawyer, is that he believes "in his heart of hearts" that he actually won the 2020 presidential election and that his lawyers told him to do it. You do realize that, right?

State of mind does indeed seem to be an element for some of these crimes, an element the government must prove beyond a reasonable doubt.   So, it is mandatory for Trump’s team to present all defenses that their client believes to be true and applicable.

Whether or not we armchair jurors think a defense is bogus or unpersuasive after reading biased press summaries is meaningless of course.  Fun to chat about but meaningless.  I would not count on a conviction until you see the nature and quality of the evidence presented to a jury.  Jim   

Originally Posted by Jim Moscheck

David, David, David, these things would only matter if Thomas wasn't a conservative.

Careful Jim - it is pretty clear that pro publica is targeting Thomas because he is conservative.   Not a peep about liberals like Kagen and Sotomayor, and of course RBG who all accepted extensive travel and so on.   David has a good point, the appearance of impropriety is wrong for a judge, but Thomas is not alone in accepting these sort of gifts.  You would not know that though, based upon the links Rod favors.  Jim

Originally Posted by Richard Davis

Democrat ass kisser stated:

until you post a fact demonstrating that Trump's constitutional rights to a fair trial are being ignored.

Simple, all the CRIMINAL Leaks by the DOJ to the NY Times and the WaPo that have occurred against Trump.  All the Grand Jury Leaks by the corrupt DOJ under the corrupt leadership of Merrick Garland, who is corrupt, biased, and despicable to the core.  Bought and paid for by Joe Biden's WH. He sure is paying back Joe Biden.

Rich:  

This warrants a reasoned response w/o name calling.  Leaks by the defense can impact a defendant's rights to a fair trial.  The concern, of course, is that potential jurors might be biased by leaks toward a pre-conceived notion of the merits of the prosecution case before evidence is presented.   This is why leaking grand jury proceedings is a crime.

Any leak is not a bright line miscarriage of justice though.  In other words, any grand jury leak does not automatically equal denial of a fair trial and dismissal of the charges in each and every case. These issues must be painstakingly examined and debated up to and during the trial, and on appeal afterward.  The nature, scope, and pervasiveness of the distribution of the leak must be examined.  This "examining and debating" process is the heart of due process and a fair trial.  This is why Trump can hire any lawyers he wants, and he ought to hire the best.  

Please understand that I am not condoning grand jury leaks.  The leaks themselves are a crime that should be investigated and prosecuted if possible.

More specifically:  Let's agree for now that grand jury leaks happened from a Trump grand jury.  The judge decides w/n the leak is problematic.  Trump's lawyers can and will argue that the leaked material is highly prejudicial, widely distributed, pervasive, and that all possible jurors are irredeemably tainted. The prosecution will argue that the leaks were immaterial and that the prospective jurors never heard them anyway.  The trial judge will consider all the evidence and arguments and decide whether or not any leaked evidence must be excluded.  In an extreme case, the trial judge can dismiss the charges if no fair trail can occur because all possible jurors are tainted.  Only after the arguments are made will the trial judge make his or her ruling.   That ruling might be eligible for appeal immediately.  Maybe not.  None of this has happened yet in Trump's case(s).

Before trial, all potential jurors will be grilled on whether or not they heard the leaked material and how it impacts their opinion about the issues.   This process will take days.  If an improperly biased juror lies and slips through the cracks and affects the outcome of the trial, and evidence of this miscarriage of justice arises later, the verdict can and likely will be tossed on appeal.  That happens now and then.  None of this has happened yet in Trump's case(s).

Due process is the process of all these checks and balances being implemented.  Trump and his team have full access to all of the tools any defendant has.   He can try to exclude leaked evidence, he can try to exclude biased jurors, he can argue that trial in whatever jurisdiction is inherently unfair.   If he loses those arguments before the trial court, he can present them as arguments on appeal.  If he loses on appeal, he can argue before the Supremes that the wrong standards were applied by the appellate court.   In other words, Trump is being afforded full due process.  That is not really debatable today since we are so early in the prosecution.  For all we know, leaked evidence may be excluded at trial.  Tainted jurors will definitely be excluded.  Imagine you or Rod being in the jury pool.  I think either of you would be automatically excluded based upon your posts in this forum alone!  

I wish I could say that the criminal justice system always works, but of course that would be stupid.  It is the best system, not a perfect system.  Wrongful convictions occur.   Due process is giving the defendant all of the tools and rights to assure that ten guilty men go free for every one innocent man that is convicted.  Trump has all of these tools and rights at his disposal.

Jim

Originally Posted by Richard Davis

Did you say something above??  I'm guessing it was just a screed by another Democrat to try and excuse the corruption and bias of the DOJ, which is obvious to any person with a functioning brain.  

Disappointing.  I took a lot of time to meet you on common ground.  My bad.  Maybe other participants will find my thoughts interesting.

Originally Posted by Russ Carroll

Use smaller words next time and bold every third word or so. Change up fonts and character size, too.

Most appreciated the detailed response as I did. It’s insightful to hear an actual attys view on this stuff.

when you said on one thread you thought Smith was too aggressive, did you mean charging Trump on marginal facts or was it that he’d charge him with too many things? 

Ok, but you have to recognize that this is personal opinion.   My previous post was more legally defensible than this one.

I worry that Smith has charged Trump with non-routine, almost "untested" crimes.  Smith is arguably charging Trump with the sort of things that other politicians could have been charged with in the past, but never were.  The government's point of view would be that Trump's behavior has gone way above and beyond what other politicians do or did. 

For example, lots of politicians appear to have illegal possession of classified documents, but only Trump (allegedly) lied about it or actively concealed it, or generally forced the government's hand by digging in instead of cooperating.  While this may be true, I do think that Trump's lawyers will work hard to build some sort of defense around the discretionary prosecution of Trump when others who did similar things with documents (but to a much lesser degree maybe) were never prosecuted. Frankly, I am not sure how this is used in court though, if at all.  The government has to prove real crimes beyond any doubt.  If others committed those same crimes but were not prosecuted, that is not actually a defense.  Matters a ton to the public though.  1/2 of the public I should say.

Regarding the defrauding the US charges recently filed by Smith, lots of politicians (or their people) wildly claim they were cheated out of an election.  Clinton, Gore, definitely Stacy Abrams.   The government will argue that they have good documentary evidence that Trump not only lied, but he knew he was lying.  Could be, but again, I would imagine that Trump's lawyers would be salivating over the perceived selective prosecution.  No idea how that is fashioned into a trial defense.  But Garland does have to withstand the heat.  If the public headwinds get too strong will he proceed?  What if the majority does start to think that these prosecutions are pure political BS.  Given Biden's vulnerability, will Garland stand firm or fold his hand?

I have never been a prosecutor, but I would guess that many less aggressive prosecutors would have chosen not to bring these cases.  Jack Smith is known to be super aggressive.  As Rich likes to note, Smith did get overturned in an extremely high-profile VA bribery case.   Garland chose Smith for a reason, and I personally will not be terribly surprised if it backfires.   A lot depends on how bad the evidence really is against Trump, and how good his lawyers turn out to be.  Jim

Originally Posted by Rod Kaufman

"I worry that Smith has charged Trump with non-routine, almost "untested" crimes. 
That's what they said about those charged and convicted with seditious conspiracy.

"As Rich likes to note, Smith did get overturned in an extremely high-profile VA bribery case."
After he got a conviction by a jury only to have it overturned on a technicality after a two year appeal to SCOTUS... 

The Supreme Court does not do "technicalities."   At least not unless you consider critical Constitutional protections to be "mere technicalities."  You gonna admit to that viewpoint?

I can provide a link to the Supreme Court case, if you would like to read it.  it was a unanimous decision.  Like I mentioned the other day, Smith was not sanctioned, but he did aggressively push a novel interpretation of the federal bribery statute way beyond Constitutional bounds, according to the unanimous Court.

Jim

Originally Posted by Rod Kaufman

Stated like a true dyed in the wool Trump cultist...

I get it that you and Greg are rude to each other now and then, but Greg ID'd his opinion as an opinion.  It is a defensible opinion too.  (In my opinion).  

The prosecution of Trump appears so far to be legally brought, reasonably supported by the law, in accordance with due process, and all the stuff I've been arguing all day.  But it is clearly a discretionary prosecution and it is stretching the boundaries of what has gone before.  By discretionary prosecution, I mean that it is the result of an investigation and grand jury process controlled by Smith.  Smith is applying seldom used and even archaic laws.  It is not like Trump was witnessed by dozens shooting a man dead in broad daylight and then brought into jail by the cops, where prosecution is not discretionary as a practical matter.

I'd buy the argument that this is all largely Trump's fault.  Still, it is not credible to deny there are politics at play in Garland and Smith's prosecution decisions.  I don't agree with Greg that this is entirely political, but that is a long way from denying that it is at least in part political.

Jim

Originally Posted by Greg Shaffer

You are once again assuming I give a shit about YOUR opinion.....lol

Well, we are all guilty of assuming other people care about our opinions, right?  

Originally Posted by Brian McFarland

To what end, though?  Certainly not to benefit Biden.  Trump is probably the only GOP candidate that Biden can beat in a presidential election.  If I were Biden and wanted to play politics, I'd want to discourage Trump's prosecution in the hopes that he becomes the GOP nominee. I don't see how this prosecution benefits democrats. If anything, it benefits the other GOP candidates for the nomination.

Hi Brian:  I see your point, and I agree that other Rs should have a better chance of unseating Biden.  I don't trust my own opinion on this though, I have been wrong too often, for example being absolutely flabbergasted that HRC lost to Trump.  I sure did not think it possible.

One political advantage for the Ds is to enhance the discord in the R party.  You see the discord here between Rich and me.  The MAGA/RINO schism is huge and it benefits the Ds to enhance or entrench this schism.

Another political advantage would be a calculus founded in an "absolute certainty," based upon polling data, that Trump will be the nominee.  If that is what the D's confidently expect, it makes sense to hit him hard and weaken him now and at a minimum make him spend money and distract him from campaigning.

Jim

p.s. I am also using political more broadly than pure D v. R partisanship, as detailed below.

Originally Posted by Rod Kaufman

"it is not credible to deny there are politics at play in Garland and Smith's prosecution decisions."

That's not true, at all.
In Smith's case, he's prosecuted prominent Democrats John Edwards and Bob Menendez. Were politics at play in those cases as well? Of course not.
Even the former governor of Virginia, Robert McDonnell, who was targeted by Smith,  was on CNN last night and stated this is NOT a political prosecution.
In Garland's case, he's appointed Jack Smith because he has demonstrated his impartiality when it comes to prosecutions and politics. 
You ought to know better, Jim.

True enough, I wish I did know more. 

Smith may not have traditional D v. R political bias for all I know, but he is indisputably a legendarily aggressive prosecutor who is willing to go after big game and willing to make the arguments that more conservative prosecutors would avoid.   This is ultimately why he has overturned in the McDonnell case.  He no doubt considers it his duty to aggressively prosecute where probable cause exists, and I agree with him.

Garland knows Smith's resume.  He hired Smith because of his aggressiveness and talent, not because he is a partisan hack.   So I may have unintentionally misled you.  In my opinion, Garland would be less than human if he was totally unaffected by the Rs denying him a seat on the the Supreme Court.  I believe and hope that Garland is an honorable man.   That does not mean that his past treatment has absolutely no affect on his decision making process.  Politics transcends mere D v. R partisanship.

Do you think that prosecution of Trump was mandatory?  I do not.  The government could have decided to prosecute, or to just let Trump's malfeasance slide, even after they raided Mara Lago.   I think that the decision to prosecute is in part political under a broad definition of political, for the reasons I mentioned above and to Brian.  Jim