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On The Affirmative Defense [1]
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Date: 2023-08-06
Obviously I’m not a lawyer. I’m just a guy who reads a lot of stuff. So, I’d like to clarify a few small points as I understand them.
Back in the late 90s I was involved in a few cases where I was helping clients prosecute hackers. Generally, I couldn’t discuss any of the details of what was going on, but I paid close attention to legal cases regarding hacking, and – in particular – to a lawyer named Jennifer Granick, who frequently spoke at some of the same conferences I attended (Black Hat, NSA security conference, ShmooCon) she was always chock full of facts and advice. Later, I got involved in building honeypot systems, and teaching about them with Lance Spitzner, and the subject of entrapment came up, a fair bit. Lance and I both had questions for Granick, which were clearly and thoroughly answered. That was where I heard of the concept of an “affirmative defense” and Granick’s opinion was that no attorney worth a dry lentil would ever use an affirmative defense – throwing oneself on the mercy of the court would be better.
I’m going from memory, here, but the idea of an affirmative defense can be summed up as “Well, yeah, I did it – but I’m still innocent because ${reasons}.” When a defendant pulls that line, the prosecutor will pounce on it like a mongoose on a baby snake, “Ah, so we have established that you did do that thing. Now, we’re arguing about mitigating circumstances and your defense now depends on those mitigating circumstances being sufficient.” Granick described it as playing Russian Roulette with 5 live rounds in the cylinder.
Obviously, I’m not going to waste my time sampling the proto-fascist punditsphere’s opinions about the Trump indictment, so I might miss one of them that is offering surprisingly good legal analysis (hey, it may happen!) but from here it looks like there’s a whole lot of jerking knees and not a lot of reading and thinking going on. Most amusingly, it seems that Trump, who is not a thoughtful man, is parroting some of what media figures are saying – including (womp womp!) affirmative defenses. For example, Trump on the stolen documents: “so what, they were mine!” Ah, well, that’s an affirmative defense: you just admitted that you did, in fact, have the stolen documents – and now your argument is “the mitigating circumstances are that they were mine.” Except, now that you’ve admitted they were stolen, all I now have to do is point out where they’re not yours and it’s game over, man. [Private Hudson’s reaction in ALIENS is actually a good reaction for Trump’s lawyers and whenever I hear Alina Habba say pretty much anything, I tend to voiceover it with my rendition of Hudson. “Now we’re in some really pretty shit…” Even though he was in a completely different movie, Hudson had a better grasp on the situation that Trump’s lawyers appear to.]
If you have been following what’s been going on, many of Trump’s writhings have been predicated on affirmative defense. For another example, “so what if he tried to have a surveillance video server deleted, it was his!” Never mind that servers are not “deleted” unless they’re virtual machines (in which case there are backup images) – that’s an affirmative defense. 1) He tried to have the server deleted, but 2) it’s OK because it’s his. Well, thank you for admitting he tried to have the server deleted because that’s what we needed to show in order to have you on tampering with evidence and really it’s irrelevant whose machine it was, so you can argue that point ’till the cows come home, you’ve already convicted your client.
Now we come to the 4 most recent indictments. This is where things become actually painful – the proto-fascist punditsphere and Trump appear to be taking the line that “it’s freedom of speech!” which sure as hell sounds like another affirmative defense, to me: “sure, I said that thing but it’s OK that I said it because 1st Amendment!” Yeah, except that’s not even what he was indicted for. He was indicted for conspiracy not lying. Whups.
[scribd]
It’s relevant that Trump told a bunch of lies, because the lies were part of the conspiracy. But it was not the other way around: the conspiracy was not entirely the lies. Smith’s writers are very clear:
It’s right there in the text: he disseminated his lies to make his claims appear legitimate and erode public faith in the election. So, the lies were part of the conspiracy, but..:
The conspiracies are to defraud the government in violation of section 18 USC, which is the part of the US Code of law that establishes the government’s power to operate non-fraudulent elections. And, to impede an official function, and to violate the constitutional rights of voters to have their votes counted.
Lying? Oh, you lied? So what.
Now, admitting that a bunch of lies were told is not really relevant to any of this except inasmuch as it explains why Trump and his followers were lying. They were lying in order to further the conspiracy, but it’s the conspiracy that’s the problem.
This is not an affirmative defense, though – it’s actually more of a “red herring” than a defense. What’s particularly funny about all of this is that Smith’s team were careful to say that politicians’ lies are apparently expected and Trump had a right to claim – even falsely – that the election had been rigged. So what? That doesn’t justify your attempting to turn around and mount a coup. And, I suppose it must be said: Hunter Biden. So what?
Again, a semi-dramatic reading of the whole indictment is here. It’s practically poetry. Smith and his writers have carefully scoped the indictment down to just what matters, and for what there is plentiful evidence. Much of that evidence is self-incrimination from the various un-indicted co-conspirators. I expect they’ll have their moment under the bright lights once their boss is signed, sealed, and delivered.
Smith’s work is impressive, though really it’s mostly recapitulating what the Jan 6 Committee already did. There’s more than that, of course, since Trump’s co-conspirators can’t keep their mouths shut, and the very nature of their conspiracy made it impossible for them not to take positive actions. This video, for example, is so pathetic, it’s almost funny: [video] Trump’s fake Michigan electors recorded video of themselves being kept out of the state house by the Michigan State Police and security. Briefly, the dialog was:
Fake Electors: “Let us in, we’re the real electors!”
Security: “No you’re not, the real electors are already in the building. We know who they are. You’re not coming in.”
Fake Electors: “Waaaaaa! Let us innnnnnn!”
Security: “No.”
Now, 16 of the fake electors are facing charges in Michigan. One of them has come up with a clever affirmative defense, namely, “someone forged my signature on that document!” (carefully not mentioning whether she was outside the statehouse or not).
All of this is interesting and relevant, because it shows how Trump’s co-conspirators did not really have a plan. There was no indication that, if they occupied the capitol and delayed the vote count, they had any idea what they’d do next. Trump appears to have thought he’d call in the military under the insurrection act, and give someone a whiff of grapeshot, except … who? How would that help? If Trump’s goons had held the capitol, were they going to re-enact Jean D’Anjou’s last stand at Camerone? (I refuse to glorify the pointless defense of a pointless building in Texas) If the fake electors had managed to get into the state house and cast their fake summaries, they’d have wound up in handcuffs in the back of a couple of cop cars. Remember Bolsonaro’s coup attempt? They took over the house of parliament and then stood around until they got tired and hungry, then surrendered, and were arrested. “Go home and wait for the FBI to come for you” is how it actually worked out, anyway.
I am also really tired of the media acting like Trump’s goons are a big scary threat. Sure, they’re goons and they can hurt someone, but they’re surrounded by a continental landmass crawling with cops and military. What are they going to do? Don’t they understand that their golem god could be tried in absentia?
Meanwhile, I was thinking “wow, Trump will get expunged from history like Catilinus was.” The only reason anyone still remembers Catilinus is because Cicero verbally beat the shit out of him over and over and over. Will Trump go down in history as one of the great punching bags of all time? Because, I’m sure at the time, the Catiline plot was important and there were all kinds of details, in the end, nobody recorded a lot about the details compared to what Cicero had to say. Anyhow, I went back and found some audio recording of an Australian fellow (Who knew Cicero had an Australian accent?) reading Cicero’s first anti-Catilinus rant. And, damn it’s good. It goes into great depth about what a selfish ne’r do well Catilinus was, who spent fortunes on self-aggrandizement and debauch, but accomplished nothing more than going down in history as a blot on Cicero’s caligae. At moments I felt confused: [wik]
Born to an ancient patrician family, he joined Sulla during Sulla’s civil war and profited from Sulla’s purges of his political enemies, becoming a wealthy man. In the early 60s BC, he served as praetor and then as governor of Africa (67 – 66 BC). Upon his return to Rome, he attempted to stand for the consulship but was rebuffed; he then was beset with legal challenges over alleged corruption in Africa and his actions during Sulla’s proscriptions (83 – 82 BC). Acquitted on all charges with the support of influential friends from across Roman politics, he twice stood for the consulship in 64 and 63 BC. Defeated in the consular comitia, he concocted a violent plot to take the consulship by force, bringing together poor rural plebs, Sullan veterans, and other senators whose political careers had stalled. Crassus revealed the coup attempt – which involved armed uprisings in Etruria – to Cicero, one of the consuls, in October 63 BC, but it took until November before evidence of Catiline’s participation emerged. Discovered, he left the city to join his rebellion. In early January 62 BC, at the head of a rebel army near Pistoria (modern day Pistoia in Tuscany), Catiline fought a battle against republican forces. He was killed and his army annihilated. Catiline’s name became a byword for doomed and treasonous rebellion in the years after his death. Sallust, in his monograph on the conspiracy, Bellum Catilinae, painted Catiline as a symbol of the republic’s moral decline.
At least Catiline didn’t play golf.
I did love Cicero’s description of how he got started exposing Catilinus, and all the people sitting near him gradually got up and moved off, leaving him sitting alone except for Rudy Giulianus.
[This is cross-posted from my regular blog over at freethoughtblogs]
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