By Dr. Ken Broda-Bahm:
The news cycle has been drowning in it. For the first time in history, a former U.S. President faces criminal charges. Donald Trump was arraigned this past Tuesday on April 4th, after being indicted on 34 charges involving the falsification of business records in furtherance of another crime, all surrounding payments of hush money to several individuals in the weeks preceding the 2016 election with the goal of concealing alleged extramarital affairs by the candidate. Public opinion on the charges is predictably quite split, with one group seeing it as a long-delayed comeuppance and another group seeing it as a grave threat to the rule of law and the Republic. Interestingly though, even among the group that can be counted on to support the charges, that support is a little soft. While a majority approves of the charges, around three-quarters across the board say that politics played some role, and 52 percent say it played a “major role” in the indictment. In addition, many legal experts are saying there is some novelty to the theories supporting the charges, and in particular, the elevation of the charges to felony status.
One side is tarring any and all legal inquires as a “witch hunt” while large parts on the other side are wishing that this initial legal salvo against the former President would have focused on perceptually more important cases, such as his planning and incitement on January 6th or his request (and threat) to a state Attorney General to “find” a specific number of votes after the 2020 election. On both sides, there seems to be a gap between the perceived of legal merits and perceived social importance. This need to consider a claim both in terms of its legal and social legitimacy applies to the high profile cases, but also applies to all cases. In prosecuting lower-profile crimes, and in bringing claims in the civil arena, the question is not just whether a claim can be proven based on the evidence and the law, the question is also whether doing so is worth it. There is a level of perceived legitimacy that should not be ignored. In this post, I will focus on three questions that should be answered in the context of your trial story.
These three overlapping questions may not always be legally relevant to the case, but to jurors (and other humans) processing the case, they are likely to matter at a level of social importance and relevance.
1. Why Is the Case Being Brought?
“Because we can” isn’t the best answer. “Because the facts and the law support it” is a better answer, and might also be very accurate, but it still may not be fully satisfying. In any story that we are receiving, the motivations of the parties matters, and that includes the motivations of the plaintiff bringing the case, and potentially the motivation of the defendant in not resolving the conflict earlier. So part of the examination of the main witnesses ought to focus on this “why” factor.
In New York’s case against Trump, for example, the public message has been that it is not so much about the harms of false business records inside the Trump organization as it is about the message that no one is above the law, not even a former President.
2. How Does This Case Matter?
Beyond an answer to the factual questions on the verdict form, what is the result of this case? Yes, a particular dispute is being resolved, and the parties involved are getting an answer that they couldn’t get outside the courtroom. But beyond that, there ought to be a broader social principle that is being served.
In the Trump business records case, while the legal principle might involve the importance of accurate business records, the broader social principle might involve the importance of accurate information about our leaders. For example, former President Bill Clinton was impeached for lying about an affair, but he did not pay anyone else to lie about it, or create false records to conceal those payments.
3. Who Benefits (Other than the Parties in the Suit)?
Legally, just the parties involved in a lawsuit are supposed to experience the consequences of the verdict. But socially, jurors know that there is likely more at stake. For example, they know that social resources are being applied to this resolution — they are part of those resources. So it should be clear that there is a broader social effect. For example, one reason the “Reptile” approach to trying plaintiffs’ cases has some effectiveness is that it tries to center that appeal on the broader effect of legal cases in promoting safer practices and products.
In the case of this initial indictment for Trump, the defense narrative of “who benefits” focuses on Democrats, and specifically the one who campaigned on the issue of indicting Trump. For that District Attorney, though, the emphasized benefit might be more broad: the public benefits from more information and from the principle that Presidents and former Presidents aren’t able to break the law without consequences.
Of course it is still very early in the process, and only the barest information on the indictment and supporting facts have been released as of this writing. A responsible position, for both sides, might be to say, “Let’s see what the evidence has to say.” Unfortunately, the storm outside and around the courtroom will probably receive more attention than the facts themselves. The lesson for all cases, though, is that this layer of social importance matters.
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Other Posts on Legal Legitimacy:
- Know Your Jury’s RFD (Reason for Decision)
- Address Fundamental Skepticism on Rule of Law
- Enjoy the Calm, Prepare for the Storm
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Image: Shutterstock, used under license