Here come the second guesses and recriminations from critics of the lawyering from the Trump trial in Manhattan. And if Alan Dershowitz is right, things might get much, much harder for Donald Trump than he can imagine as he moves to his appeals cases. But the first thing he ought to do, Dershowitz says, is fire his attorney, Todd Blanche.
Beyond Monday morning quarterbacking, this is about preserving the record for Trump's appeals. And the best Dershowitz can figure after spending time in court and reading transcripts of the trial is that Todd Blanche didn't preserve enough of the record, as outrageous as it is, to use for Trump's appeals. And as a result, he believes Blanche should be sidelined.
Further, he says Blanche should have fought much harder in court starting with objecting more to the outrageous conduct of the judge and the prosecution.
On Thursday, former President Donald Trump was found guilty of 34 counts of bookkeeping entries in his accounting books which, under normal circumstances could have been considered misdemeanors, if anyone would have bothered to charge them.
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In this case, however, those issues became moot when the statute of limitations expired. However, legal alchemists at the Biden DOJ and the Manhattan District Attorney's Office conceived of an idea to reanimate the charges by linking them to an unspecified state or federal felony that Trump might have thought about as his CFO made the bookkeeping moves. Prosecutors never specified what that imaginary charge was until closing arguments and jurors were given the option of choosing for themselves the predicate crime.
Another problem for the defense was that Trump didn't make any accounting moves, his CFO did, and when the judge offered both sides the chance of getting Trump's former CFO out of jail for the trial, prosecutors certainly didn't want to get hear from him, wanting to rely instead on former Trump Attorney Michael Cohen, who is a "serial perjurer." In the end, the defense didn't think they needed the CFO. They were wrong, says Dershowitz. And there were many other issues he was concerned about as well.
There's nothing normal about this. It was a novel case for a singular defendant.
Before the verdict, as you can see in the video below, Dershowitz had reservations. After the verdict, he was upset.
Dershowitz told Newsmax that "His lawyers did not do a good job... [Y]ou can't win an appeal if the lawyers below didn't create a record for appeal. And they didn't do that here, particularly the missing witness, the issue of, the failure to allow the expert witness to testify."
He said the defense attorneys, "[N]ever got a missing witness instruction, nor were they able to argue that the key witness to the uncorroborated statement of the only witness to the elements of the crime, was never called by the prosecution."
That's a big deal.
One of Trump's attorneys says some of the issues lawyers are concerned about were preserved and appeals issued. However, Alina Habba told Fox News host Laura Ingraham that those appeals were under seal and the lawyers were gagged.
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It's unlikely that Dershowitz will be satisfied with that assurance.
He says Blanche should have objected to having to go first in closing arguments, not knowing the charges against his own client because of the collusion between the judge and prosecution. And Dershowitz seemed to suggest that Blanche should have done that in front of the jury, saying that the prosecution hadn't proven its case and he would reserve the right to respond when he found out what the hell they were going to say.
That would have been an interesting gambit, for if he had fought harder to make that point, he might have gotten a chance to rebut the prosecution by Dershowitz's reckoning. Under the judge's interpretation of New York law, the defense goes first in closing arguments, and the prosecution gets the last word because they're given more time to make their case. It's fundamentally unfair to the defendant, who's the only person in the room whose liberty is at stake.
It's unusual for attorneys to object to assertions made in closing arguments. Though a stylistic difference, Dershowitz believes Blanche should have objected liberally when the prosecution was allowed to argue in court that "it's a fact" that Trump engaged in campaign violations because Michael Cohen pleaded guilty to them to get a plea deal. Read more about this in any of the previous myriad stories I've written about this verdict. Furthermore, the judge prevented the defense from putting on a factual witness on this issue — an appealable issue.
"What I'm worried about is the defense attorneys weren't experienced in New York law," he said on his podcast, "The Dershow with Alan Dershowitz," on Locals.com. And he ruefully observed, "Apparently, this is one of the first cases in which they made closing arguments in New York law [and] seemed to have waived a lot of issues." He said, "And if you waive a lot of issues, an appellate lawyer like me can't raise them and there's nothing more upsetting to an appellate lawyer to have read a record and say, 'Oh, my God, this was a serious mistake, a real error, but he waived it — didn't protest it.'"
Dershowitz seemed to suggest that he may have offered help with the trial but they didn't accept it. "And here the trial lawyers didn't seem to want to have anything to do with outside people who wanted to give them advice or might have suggested things that they could do. They were real lone rangers, a little bit arrogant and the possibility is that they may have waived some issues that are very, very, very serious."
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"I can tell you, I was in the courthouse enough, and I know enough about this to know this was not a distinguished performance by a great defense lawyer," he told Newsmax. "Trump could have gotten a lot better and I hope he gets a lot better on appeal," Dershowitz told the outlet.
PJ Media's reporting on the Trump trial has been terrific. We'll keep telling you the real story and not act as political fluffers just to get invited to fancy cocktail parties. We'll make our own martinis, single malts, and beer, thank you very much.
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