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Found guilty on 34 counts by a New York jury, former President Donald Trump is now the first U.S. president convicted of a felony.
What many should be wondering is, how did Trump's capable lawyers, with good track records, let this happen? Step after step, the defense made terrible trial decisions.
The defense allowed Stormy Daniels to testify as to the details of her sexual encounter with Trump without objection beforehand or during her testimony—an amateur mistake that a late "motion for mistrial" does not fix. In cross examination, the defense then tried to undercut her credibility by shaming her profession. In 2024, years after the "Me Too" movement began, this is simply not smart. Plus, she more than held their own.
The defense tried to portray Michael Cohen as crazed by a hatred of Trump and willing enough to lie. This was an ill-thought-out cross-examination tactic as it did nothing more than give Cohen plenty of opportunity to tell the jury all the reasons why he thinks Trump is guilty.
The defense put up Robert Costello as Trump's only significant defense witness, and to have him behave badly and have the judge almost hold him in contempt is baffling. If the defense's point was to show Cohen was not to be believed, then having Costello appear as a shifty lawyer didn't help.
Finally, the defense allowing Trump to sit at the counsel table with his eyes closed (sleeping or not) communicated to the jury Trump doesn't think they are very important. Every trial lawyer knows, if you communicate disrespect to jurors, they will make you pay. (See: Exactly what happened in the E. Jean Carroll case.)
So why did smart, capable lawyers allow all these things to happen? Because Donald trumped his lawyers; he was directing the defense.
Yes, that's right, he had the right to dictate his own defense strategy, oversruling those who knew better.
Two years before her 2020 death, Supreme Court Justice Ruth Bader Ginsburg wrote an opinion that may have led to Donald Trump's doom in this New York trial.
In McCoy v. Louisiana, RBG wrote for the United States Supreme Court that a criminal defendant calls the shots as to his defense. Before, the generally understood standard was that although the defendant has the absolute 5th Amendment right to testify, the defense attorney decides the scope and strategy of defense, including what other witnesses to call. Most of us defense attorneys easily work around any conflicts by collaborating with our clients to have a unified jury presentation. But we ultimately decided "the defense."
Not so, ruled RBG. "[A] defendant has the right to insist [in a defense] even when counsel's experience-based view is [different]. These are not strategic choices about how best to achieve a client's objectives," RBG continued, "They are choices about what the client's objectives in fact are."
McCoy was a Louisiana death case. In 2011, Robert McCoy was facing the death penalty for three first-degree murders. McCoy's seasoned death penalty lawyer thought his client's best chance to avoid the death penalty was to concede the killings, but argue they were unintentional. McCoy had other ideas—he wanted his lawyers to present an alibi defense and say that the police framed him.
McCoy's lawyer did what he thought best but lost anyway, and the case went to the Supreme Court. There, RBG said McCoy wins: "When a client expressly asserts that the objective of 'his defense' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt."
What this means is that Donald Trump had the right to favor his own objectives over the advice of his own smart legal team.
But does Donald Trump really care about his conviction? He's spent months minimizing the possibility that this jury will find him guilty of his crimes. What he cares about is outside of the courtroom.
Every day, 2024 presidential candidate Donald J. Trump gets to appear on TV and whine that the judge is "conflicted," the trial is "rigged," the jurors are "biased." He complains that he can't campaign.
But if he was campaigning, he could only talk to a few thousand voters at a time. Instead, the first former president to ever be convicted of a felony—let alone 34 felonies—has been making headline news for weeks.
RBG laid the groundwork for Trump to do what he thought was best, not what his lawyers may have known was best for a good criminal defense.
But was a good criminal defense ever really Donald Trump's point?
Robert J. McWhirter is a certified specialist in criminal law with the State Bar of Arizona and a constitutional historian. He has lectured extensively nationally and internationally on trial advocacy and practice. He has also written several books on the Constitution, including his latest, Fixing the Framers' Failure: The 13th, 14th, and 15th Amendments and America's New Birth of Freedom (Twelve Tables Press, 2022).
The views expressed in this article are the writer's own.
