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Trump’s refusal to concede a crucial fact could tank his legal defense

Micromanaging a defense attorney is always a recipe for disaster.

As former President Donald Trump’s criminal trial in New York begins another week of proceedings, The New York Times reports that Trump has been venting behind the scenes that his lead lawyer, Todd Blanche, “has not been following his instructions closely.” More specifically, Trump believes Blanche is not being aggressive enough with the witnesses, the judge and even the jury pool.

During my time as a federal prosecutor, I occasionally saw defendants try to micromanage their cases and run roughshod over their defense attorneys. This approach is always a recipe for disaster. In other words, it looks like Trump may be not only his own worst enemy, but his own worst advocate.

The more zealous and effective attorneys will tell the client, ‘I know how to try criminal cases; you don’t.’

Although criminal defense attorneys must always consult with their client on trial strategy and tactics, it is the attorney who, at the end of the day, typically controls those strategic and tactical decisions. The defendant only gets to make a handful of decisions him or herself, including decisions that may go directly against the advice of his counsel. For example, it is exclusively up to the defendant whether to plead guilty or not guilty, whether to accept or reject any particular plea offer and whether to testify or not testify in his own trial.

But all tactical trial decisions — whether and to what extent to cross-examine prosecution witnesses, what witnesses (if any) to call for the defense, what evidence to introduce (i.e., business records, phone records, text messages, emails, photographs, etc.) — are the province of the defense attorney, not the client.

I have seen defense attorneys struggle with difficult, obstinate or overbearing clients. I’ve seen some defense attorneys rise to the challenge and refuse to cater to a client’s ill-advised tactical demands. The more zealous and effective attorneys will tell the client, “I make the tactical decisions, and I will make them in your best interest. I know how to try criminal cases; you don’t.” I’ve also seen defense attorneys who were not up to the challenge — who let the defendants call the shots — and the client often went down in flames.

One prime example of Trump hurting his own defense is the fact that he will not let his attorneys concede that he had relationships or encounters with Karen McDougal and Stormy Daniels. This pits Trump against those two women in the eyes of the jurors. By not allowing his attorneys to concede that he may have had relationships with these women, Trump will force the jury to believe him or believe them.

That’s a problem for a defendant who made tens of thousands of false claims in just his four years as president. McDougal’s 2018 interview with CNN suggests she will come across as a credible witness. In the interview, she was reluctant to directly criticize Trump, and answered questions in a slow, careful way. Her emotions appeared genuine as she described that she had a 10-month relationship with Trump, that she was in love with him, and that he loved her. She came across as a thoughtful, circumspect communicator.

The smarter tactical move for Trump’s attorneys would have been to concede the relationships.

There’s a tactic that is often used to defend cases involving intimate relationships that are part and parcel of, or lead to, the commission of alleged crimes. The argument from the defense attorney goes something like: “My client may have violated the good book, but he didn’t violate the law book.” In other words, concede the dalliance, but fight over the commission of the crime. When former presidential candidate John Edwards was on trial for using campaign funds to conceal an affair, his lawyers adopted this strategy, arguing that he “committed many sins but no crimes.”

Because defense attorneys have to pick their battles, the smarter tactical move for Trump’s attorneys would have been to concede the relationships while still vigorously contesting that the payments made to the women had anything to do with the 2016 election. But Trump’s obstinacy closed off that option. And if the jurors believe McDougal and Daniels over Trump, that may color every other decision they will be called upon to make about Trump’s other claims at trial.

There’s an old saying, “A defendant who represents himself has a fool for a client.” What Donald Trump is doing represents a twist on that saying: A defendant who refuses to let his attorney do what the attorney does best risks tanking his own defense.