My client was in some kind of denial. The charges were serious; the evidence was strong. But he was certainhe would be acquitted, and that negative vibes would hurt his chances. He had a sort of manic “The Secret” energy that made me worry what he might do if disappointed.
As the jury came out to read their verdict, the deputies started backing away from him. Sharing the same thought, I took off my glasses so they wouldn’t break if I got punched in the face. I wondered what might happen if the client’s shock belt went off while he was on top of me.
Guilty on all counts. No punch in the face. About as good an outcome as I could have hoped for.
But now I was in a position intimately familiar to Donald Trump’s attorneys: How do you prepare a client for felony sentencing when he can’t admit guilt or express remorse?
Sometimes, instead of saying sorry, you focus on the good things your client has done. In one particularly moving hearing, for instance, I saw a man’s brothers and sisters testify to how he’d raised them when their mother was terminally ill. And there are plenty of people who’d happily sing Trump’s praises. Not just MAGA types, but people he’s employed, or those who have benefitted from his charitable work.
One problem is that this charitable work does not always withstand sunlight. For instance, a reporter found that Trump’s pledges of charitable giving were rarely matched with actual giving. When Eric Trump used one of his father’s golf courses to start a charity for children’s cancer, later reporting found that Trump gouged the organization to goose his profits. In 2019, a judge fined the Trump charitable organization $2 million for using funds to assist in his 2016 election campaign.
Maybe good character evidence isn’t the way to go.
Other times, especially in death penalty cases, an attorney must simply argue mitigation. Yes, the client did something terrible. But his terrible crime was the product of his circumstances, whether that’s drug and alcohol addiction, extreme poverty, childhood abuse or, surprisingly often, a traumatic brain injury that drastically changed his personality. But it’s a bit of a tough sell politically to seek this kind of mercy as a man raised in limitless luxury, who probably wants to distinguish himself from the traumatically brain-injured in seeking the presidency.
The third route is probably the best — don’ t focus so much on who Trump is, good or bad. Focus instead on how rare it is for someone to go to jail for felony falsification of business records. Even Norm Eisen, one of Trump’s most dogged legal critics, concedes that only about 10 percent of people charged with this crime receive jail time.
And even then, the falsification of business records charge is almost always accompanied with a conviction for a more serious crime that provides the real basis for incarceration. Whatever you might think of Donald Trump as a person, it is objectively true that this is a first conviction for a nonviolent offense. A custodial sentence would be an outlier, and Judge Juan Merchan is aware of how closely such a decision would be scrutinized.
All that said, one way to snatch incarceration from the jaws of freedom is to let the client speak his mind. In my case, it fell to me to prep the client I described above for sentencing. We went over the sort of things that defendants ought to say at sentencing a few dozen times. Don’t admit guilt, but express sympathy for the victim and his family. I made many visits to the jail. And yet, when he testified, he insisted loudly that he had done nothing wrong, that the victim had it coming and that even a blind person could tell he was innocent.
It’s not hard to imagine Trump going on a similar tear. In the time since his conviction, he’s repeatedly fundraised off his felony, arguing that a corrupt justice system had railroaded him for non-crimes. If he can make it through a sentencing colloquy without name-checking Judge Merchan’s daughter as a minion of Barack Obama, he’ll have exceeded my expectations.
Given that, putting him up to speak on his own behalf is an extreme risk. In my case, when the client finished talking, the judge, a lenient sentencer, gave him life without parole. Plus some extra years. I begged him to reconsider — surely life without parole was long enough without stacking on extra years! He replied, softly and calmly, “Better safe than sorry.”
If Trump’s lawyers have one goal in the coming weeks, it’s persuading this judge that, as extraordinary as Trump may be in other respects, his crime is run-of-the-mill and close to victimless.
In many other contexts, it makes sense to let Trump be Trump. Here it may be best to let Trump be quiet.
Andrew Fleischman is an attorney at Sessions & Fleischman in Atlanta.