Donald Trump's attorneys and the problem of perjury

This post originally appeared in Westlaw Today. 

Donald Trump's attorneys and the problem of perjury

2024 PRINDBRF 0243

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By David Schultz, Esq.

Practitioner Insights Commentaries

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May 08, 2024

(May 08, 2024) - University of Minnesota law professor David Schultz discusses the ethical dilemma Donald Trump's attorneys could face if the former president commits perjury during his New York City hush money business fraud trial.

There will come a point in Donald Trump's New York City hush money business fraud trial where his attorneys have to make two choices. The first is whether to put Donald Trump on the witness stand and to testify. The second choice for his attorneys: What to do if Donald Trump commits perjury? While both of these decisions entail risks, for Trump's attorney the second comes with significant ethical and legal problems.

While Donald Trump can be very persuasive he also distorts the truth. The Washington Post documented more than 30,000 lies or falsehoods1 while he was president of the United States. The Trump Organization was already found liable in 2023 for tax fraud2 in a previous New York court proceeding and earlier this year he was also found liable for fraud and assessed more than $355 million.3

While there may be no or few political repercussions for failure to tell the truth, there certainly is when it comes to testifying in court under oath for any person, including Donald Trump. False testimony is perjury, punishable as a criminal act under New York State law.4 Were he to commit perjury he would face a series of sanctions5 beyond those at issue in his trial.

But for his attorneys, there is a dilemma. What to do if they know he is going to, is likely to, or is committing perjury. What are their duties?

In general, both the American Bar Association's Model Rules of Professional Conduct6 and the New York State Rules of Professional Conduct7 addressed the issue of perjury in rule 3.3. Both make it an ethical violation "to offer or use evidence that the lawyer knows to be false." Rule 3.3 imposes upon attorneys an affirmative obligation to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal" to correct the perjured testimony." Additionally New York State makes subordinating perjury illegal.8

When it comes to a witness that an attorney knows is going to commit perjury, the answer is simple — you do not let the witness testify. If one catches a witness falsely testifying the task of an attorney is to encourage the witness to correct the testimony or to take other appropriate steps to correct that testimony.

Finally, if after a witness testified and the attorney comes to know that the testimony was perjured, there is an affirmative duty by an attorney to correct it.

The problem is different with a criminal defendant. The U.S. Supreme Court has ruled that a criminal defendant has a constitutional right to testify. The question is does the defendant have a constitutional right to falsely testify and potentially commit perjury? The answer according to the Supreme Court9 is yes. But the question is what should an attorney do?

As with witnesses, there are three scenarios.

If attorneys know that their client is going to falsely testify their first duty is to encourage them to tell the truth. But nonetheless, if the client insists on testifying falsely what should the attorney do?

One option suggested by New York State Rules of Professional Conduct and the ABA model rules is for attorneys to use what's called the narrative style. The client is called to the stand, sworn in, and then the attorney simply lets the defendant testify.

Of course, the narrative style sends a clear clue to the prosecution that perjury is being committed. Additionally, New York state rules say in some situations that defense counsel must inform the court prior to defendants testifying that their client may in fact falsely testify. If Trump's attorneys catch him falsely testifying on the stand or know afterwards of false testimony they too must take corrective action. Doing nothing is not an option.

When it comes to Donald Trump's trial, this is going to be a challenge for his attorneys. They are already under significant pressure from the judge to restrain their client and to encourage him to conform to the gag order and not obstruct the court proceeding. Increasingly the fear is that Trump's behavior may be so severe that it forces a mistrial thereby pushing a new trial into the distant future and perhaps beyond the election.

The judge's efforts have been directed mainly at Trump but increasingly the judge is also focusing on the attorneys who are expected to manage their client. There thus may be a point where if Trump decides to take the witness stand and if the attorneys take no action knowing that he is likely to or maybe committing perjury they face disciplinary action under the ethical rules in New York as well as possible prosecution for subordination of false testimony. Their choice then is let Trump testify and risk perjury for their client and risk ethical and criminal sanctions for them.

Notes:

1 https://bit.ly/3QCUFyS

2 https://bit.ly/3JSbXnP

3 https://bit.ly/3UvWu1x

4 N.Y. Penal Law § 210.15 (2022).

5 Id.

6 Model Rules of Pro. Conduct r. 3.3 (Am. Bar Ass'n 2023).

7 N.Y. Rules of Pro. Conduct r. 3.3 (N.Y. State Bar Ass'n 2022).

8 People v. Sadacc, 489 N.Y.S.2d 824 (N.Y. Sup. Ct. 1985).

9 Nix v. Whiteside, 475 U.S. 157 (U.S. 1986).

By David Schultz, Esq.

Can Trump Really Flip Minnesota?

            If ever there were a state known as deeply blue in presidential elections, it would be Minnesota. Yet Donald Trump has declared his intention to flip the state in 2024 and he plans to speak at a Minnesota Republican Party event on May 17. Is Minnesota a swing state? Surprisingly, perhaps yes.

Minnesota is the most reliable state in presidential politics for the Democrats. The last time a Republican won the state was Richard Nixon in 1972. Even in 1984, when Ronald Reagan won a blowout election, Minnesota stayed true blue voting for its favorite son, Walter Mondale.

If one looks at Minnesota right now, one sees a state with a trifecta if not a quadfecta. Democrats control both houses of the legislature as well as the governorship and all the Supreme Court justices are also appointed by Democrats. No Republican has won statewide office in Minnesota since 2006 when Tim Pawlenty last won the governorship. All this would suggest that Minnesota is not a swing state.

But consider an alternative view. Back in 2016, Hillary Clinton lost to Bernie Sanders in Minnesota’s Democratic caucus but chose not to come back and campaign. Donald Trump campaigned heavily in Minnesota only to lose the state by 50,000 votes, or one and a half percent. That suggested that perhaps Minnesota is winnable for a Republican candidate.. But to counter that, in 2020, Joe Biden won the state by seven percentage points.

If we look at the characteristics that make for a swing state, Minnesota demonstrates many of them. For example, it has a high percentage of white working class in terms of voters compared to Wisconsin, which has 56% white working class voters, Michigan at 53%, Minnesota hovers around 50%.

The racial composition of Michigan is 77.5% White Caucasian, Wisconsin 84.3%, and Minnesota right in the middle with 81.6%. In terms of college degrees, Michigan has 32% of its population with a college degree, Wisconsin 33%, and  Minnesota 39%. Minnesota demonstrates many of the characteristics that we see in Wisconsin and in Michigan, two more famous swing states.

 Minnesota also bears many other characteristics of other swing states.

Over the last twenty years control of the state legislature has flipped back and forth between the Democrats and Republicans. The current Democratic Party control of the legislature was a result of exceedingly close elections back in 2022. Democrats hold a 34-33 majority in the Senate and had less than 2000 votes  shifted Republicans would have controlled the Senate.  In the House, just a shift of about 2,500 votes might very well mean Republican control.

There are 87 counties in the state. Democrats are winning on average between eight and 12 of those counties in statewide elections, giving Republicans significant regional support. This is another characteristic of what we see in other swing states.

There is certainly no guarantee that Minnesota is actually in play in 2024. But Donald Trump's decision to compete here and to come to Minnesota for the annual Republican Lincoln dinner are indications that he wants the Democrats to defend the state.  For every dollar and every minute that Joe Biden has to spend in this state he can't spend them in another swing state.

            If Biden's goal is to expand the election, to force Trump to defend North Carolina, and  Florida, Trump is forcing Biden to defend Minnesota. Additionally, campaigning in Minneapolis and St. Paul, or up in Duluth, this  also benefits Donald Trump because the media markets for those two regions reach far into Wisconsin.  Running ads in the Twin Cities and Duluth media markets thus also have the benefit of being a two-fer.

            The reality of winning Minnesota is irrelevant. It is the tactic of forcing Joe Biden to campaign here for were he to take the state for granted. Minnesota might go the route of what it nearly did in 2016. When Hillary Clinton took the state for granted and nearly lost the state.

In Alabama, embryos are now persons you see, imagine all the possibilities…

 

In Alabama, embryos are now persons you see, imagine all the possibilities…

If age be defined by the time of conception...

Will an embryo frozen five years ago be required to go to school.

Will be eligible for a driver's license if from 16 years ago it was frozen.

Will it be eligible vote if from 18 years ago it was frozen.

If 21 years ago it became a person, will be allowed to drink or smoke in Alabama today.

If more than 21 years ago it became a person, how might it affect the rule against perpetuities?

If the embryo is 18 and male and plans goes to college, will he have to register for the draft?

When will the embryo be eligible for Social Security and retirement?

Will it be referred to as he, she, it, or they?  What if  the embryo is the basis of twins, who will it be?

If the embryo turns out to be trans, how will we know what bathroom it can use?

Will it be a US citizen if frozen in Alabama, but birthed in Mexico?  

Will it be able to inherit?  When will it be required to pay taxes, look for a job, or be charged with a crime?

If it is Catholic when does it acquire original sin or be eligible for first communion?

Will it be considered an orphan if its parents were to die or will its parents be charged with abandonment if they failed to bring the embryo to birth? Could the government charge parents with abandon it if the parents opt not to bring the embryo to birth?

If the embryo were stolen, would it constitute kidnapping? Should an embryo at age 18 be able to attend  a senior prom?

If the age of marriage is as young as 16 in Alabama and it was frozen that long ago, will I be able to marry another  embryo, but only if it's of the opposite sex?

Will an embryo be charged with murder if implanted into a uterus and it forces a miscarriage?

These is what happens in Alabama  you see, if embryos are persons  Can you suggest to me other possibilities?

Black Swans, unknown unknowns, and October surprises

 Black Swans, unknown unknowns, and October surprises.  These are the names of factors that could change the course of the 2024 presidential election.  And we may not even know what they are

According to political scientists there are models that predict winners in presidential elections. These models generally look at presidential approval rating and public attitudes towards the economy in the second quarter of an election year.  We know this based on past or “normal” elections. However, the 2024 election cycle is like no other election cycle in American history. There are a whole host of black swans, unknown unknowns, and potential October surprises that could change the course of the election. These are variables that we have not seen previously in presidential elections or events whose course could evolve and change in ways to impact the election.

 

What might be some of these unknown unknowns?   Here are ten possibilities.

 

Will Trump stand trial and be convicted of any crimes before the 2024 election? Going into the election, Donald Trump faces four criminal trials and 91 criminal indictments. His base is with him. However, the battle is for those few swing voters in those five or six swing states that will decide the election.   It is perhaps less than 150,000 voters. Polls indicate that among those swing or independent voters, a Trump conviction could sway and alter their vote, perhaps throwing the election to Joe Biden. If and when those trials occur, we do not know and their timing could very well affect the election.

 

Will the US Supreme Court allow the use of the insurrection clause to remove Trump from the ballot? The insurrection clause was drafted to address problems following the Civil War and to keep members of the Confederacy from serving in office.  States such as Colorado as well as many others are trying to use the insurrection clause as a way of keeping Donald Trump off the ballot. The Supreme Court will shortly be deciding whether or not that clause can be used for that purpose.

 

How will the conflicts in the Middle East Ukraine and possibly tensions with China in North Korea impact the election?   Matters of foreign affairs are always unpredictable. We don't know at this point if the evolution of the Middle East conflict could drag the United States into a full blown war. We don't know how the future progress of a Russian Ukraine fight will evolve. And while the US is distracted by the Middle East and Ukraine, will China or North Korea use this as an opportunity to make moves on Taiwan or to extend their zone of influence in Asia? Any in all of these variables matters of war and peace could impact the election.

 

What will happen to inflation at the gas pump or the grocery store?  The economy is always one of the biggest variables in an election. Last year with inflation running high, presidential approval for Biden was sinking.  Right now, inflation seems to be subsiding. The economy is doing well. However, gas prices are going up again. Inflation has not brought down the price of groceries. Will Americans continue to be disgruntled about the economy? And how will it evolve over the next few months and especially in the closing days of the election? With that, how might international conflict especially in the Middle East also impact gas prices?

 

Will young people or people of color show up and vote in 2024?  People of color and young people (under the age of thirty) showed up to vote in record numbers in 2020. Biden needs that record turnout again to be able to win. He also needs women to show up and to vote for him much in the same way that they showed up for him in 2020 and how they showed up for Democrats in 2022.  Enthusiasm for Biden is not great. What motivated these voters four years ago was opposition to Trump.  Can Biden find a key to get these voters to show up and vote for him, especially in those critical swing states?

 

Will abortion continue to be a major issue, especially for college educated women in 2024? What college educated suburban women do determines the outcome of elections.  If they show up, Democrats do well if they stay home Republicans do well. These women stayed home in 2016. They showed up in 2018, 2020, and 2022. They showed up mostly concerned about reproductive rights issues and the Democrats did well. Will they be motivated this year to show up and vote and  will abortion still be the issue?

 

Will the border crisis change in 2024? Donald Trump is running on the issue of the border crisis. Biden's reelection could very well rest upon whether Congress reaches a deal on securing the southern border and on public’s perceptions regarding how well the Biden administration is addressing the immigration issue.

 

Will there be any Supreme Court decisions in 2024 that could impact the election? Back in 2022, it was abortion and the repeal of Roe vs. Wade that changed the trajectory of the midterm elections. Could there be a similar vote this year such as on presidential immunity from prosecution or  the insurrection clause? Or could there be some other Supreme Court vote that suddenly grips America's attention and mobilizes voters?

 

Will there be any health problems that impact the 2024 presidential candidates? Both Donald Trump and Joe Biden are elderly candidates. It is not inconceivable that health problems by one or both of them could impact the election. The recent special counsel report on Joe Biden painted a devastating picture of his mental health. But what if one or both of the candidates is taken ill and has to leave the race and has to be replaced. How might that affect the trajectory of the election?

 

What is the Taylor Swift impact? Could Taylor Swift influence the impact of the 2024 election by her decision to endorse Joe Biden? Would it be enough to motivate her supporters, younger women, many of them who don't otherwise vote, and could that change the course of the election, especially in those critical swing states?

 

Overall, any or all of these factors could be the black swans, the unknown unknowns, or the October surprise that changes the course of the presidential election in 2024. 

The Politics of the 2024 Minnesota Legislative Session

            The DFL party in Minnesota has a trifecta. In 2023, they used that political Trifecta to go big

before they went home. With a $17 billion plus surplus, they had the money to enact and support all types of pet projects that they've been wanting to push for years. Such projects blew through the surplus and committed the state to structural increases in spending for years to come. Additionally, they used their Trifecta to push social legislation, including for abortion and other matters that were of interest to their constituents, especially the progressive wing of the Democratic Party.

            But the politics and the constraints of the 2024 session are different.

The most recent fiscal forecast indicates while there is a surplus this biennium there'll be structural deficits in the future.  While that should be a note of caution for the Democrats, not to go on a spending spree. There are also many who view perhaps 2024 as a last opportunity.

While the Minnesota Senate is not up for reelection, the House is and there is a possibility that it  could fall to Republican control.  If it were to do so, the Democrats would lose their Trifecta and their ability to be able to do what they want in terms of fiscal spending or articulating their policy agenda.

For some then this means go big and go home again. Use the 2024 session as perhaps the last hurrah to enact future spending programs that will further the Democratic agenda and commit the State to specific programs.

On the other hand, assuming the Democrats hold control of the House, they will again have the trifecta in 2025, facing that structural deficit that they were warned about.  The dilemma—spend  or save now with the implications for how it plays out  waiting until 2025.

In 2024 the Trifecta was also the product of the political interest and alignment of the Governor, Senate, and House.  That same alignment does not exist this year. When looking at the interests of the House, the Senate and the governor, we get very different perspectives on what they would like to do.

Governor Waltz has indicated his support for a whole host of things including an abortion amendment. He said he supports legalizing sports gambling and supports perhaps other programs.

His interest is defined in part by the fact that he is going into the second year of his second term.  Unless he plans on running for a third term and wins after this term, he goes into lame duck status. In many ways for Waltz, this may be his last term to define his legacy, especially at a time when he fancies himself perhaps a future presidential candidate.

In the House Speaker Hortman’s  interests and her instincts are to make this a quick legislative session. Do perhaps the bonding bill and clean up some of the legislation from last time. But don't commit to new spending. Don't commit to any social legislation.

But she faces pressures from her Progressive Caucus to do both. And if she's able to impose fiscal restraint upon the Democrats, that will make it even harder for her to impose restraint upon the pushing of social programs. A tradeoff is certain to be made there.

In the Senate Kari Dziedzic was  skilled in the 2023 session in holding the Democrats together with the 34-33 majority.  She is no longer the Majority Leader, replaced by Erin Murphy, whose instincts take her further to the left, as opposed to restraining the impulses of the left wing of the party. Several years ago, she ran for governor as the progressive candidate, only to lose to Waltz in the primary.

The Senate is not up for election.  It faces different political pressures compared to the House in that it may not fear voter retribution. Murphy still would like to be governor and views this position as Majority Leader as perhaps as a springboard for that ambition. She faces the likely opposition from Lieutenant Governor Peggy Flanagan. Both would be vying for support, trying to define themselves as the left candidates.  Were Murphy to caution fiscal restraint and restraint on pushing social issues in the Senate, she might cede the left to Peggy Flanagan, making it more difficult for her perhaps to be nominated in 2024 if she were to run for governor.  Pressures from her progressive wing and her natural instincts drive Murphy  to perhaps outflanking Peggy Flanagan on the left may make it difficult for her to be able to resist the push among some to move the Democratic Party further to the left.

In  2024 there is a different set of politics, with different personal ambitions among the governor, the Speaker of the House, and the Majority Leader in the Senate.  Even though in theory, there is still a trifecta, the interests of these three persons and the two different chambers offer a very different political dynamic than there was last year.

When college was male: Higher education and the war against women

 

It should come as no surprise that as higher education in America has become more dominated by women it is facing more disparagement and less support since World War II.

Prior to World War II higher ed was male. Most professors were male, as were most students. Women were generally excluded from higher education, most of the schools in the United States were for men only, including the most elite Ivy League schools such as Harvard and Yale.  Yes, there were the Seven Sisters female-only colleges  for women, but for the most part, college could be defined as white male. And at the same time, the vast majority of university professors also were male.

As late as the early 1970s, barely a quarter of the college faculty in the United States were female. Among some of the most elite coed schools, there were no female professors. Women comprised about 40% of college students, but many schools still excluded women. But over the past 50 years, the composition of higher education, both in terms of faculty and in terms of percentage of students who are female, has dramatically changed.

For example, what we now know is that in the past few years, especially since 2009, college enrollment has dropped dramatically. According to the Pew Research Center, in 2020 the total number of 18- to 24-year-olds enrolled in college was down by approximately 1.2 million from its peak in 2011.

THE DECLINE IS MOSTLY COLLEGE MALES. THERE ARE ESSENTIALLY 1 MILLION FEWER MALES IN COLLEGE NOW THAN THERE WERE BACK IN 2011. IN 2022 BARELY 42% OF COLLEGE STUDENTS ARE MALE — ALMOST A MIRROR REVERSAL OF MALE-FEMALE STUDENT ENROLLMENT RATIO COMPARED TO 1970. BUT AT THE SAME TIME, WHAT WE SHOULD BE LOOKING AT IS HOW THE FACULTY RATIO HAS CHANGED. AND THAT WHAT WE’RE NOW SEEING, DEPENDING ON WHAT STATISTICS YOU LOOK AT, IS A DRAMATIC SHIFT IN THE COMPOSITION OF COLLEGE FACULTY.

Remember again in 1970, approximately 24% were female. According to more recent statistics from Zippia, for example, we’re now looking at approximately 49.8% of faculty being female, 50.2% male, essentially parity on the surface. An AAUP 2020 survey found that 43% of full-time faculty who were in tenure-track positions were female, but 54% of the faculty who were full-time, non tenure-track were female.

Additionally, female faculty members make 94 cents on the dollar compared to males. Over time, as higher education has become more dominated by female students and faculty, what we’re seeing is a backlash. According to the AAUP  in 2022 only about 26.5% of all faculty are tenured, 10.5% are tenure track, annual contracts are 18%, and part time contingent 45%. The vast majority of individuals now who are teaching in America are what are part-time contingent, no protections with tenure. They are mostly women. The road to equity in higher education is characterized by overall falling salaries and less secure positions for women compared to when colleges and universities were dominated by men.

As higher education feminized, states cut funding, forcing increasing numbers of female students to borrow to finance their schooling. Student loan debt in 2023 is $1.8 trillion, with 67% of it owed by women.

The feminization of higher education has  been accompanied by the disparagement of higher education in America. As males exit higher America higher education, we see increasing attacks upon college and college degrees. No surprise that governors such as Gov. Ron DeSantis have attacked higher education as it has diversified. The same is true in Texas and across the country. Attacking and defunding higher education is part of the new war against women.

The Corporate American Media Distortion of the ICJ Israel Genocide Case

 Today's blog appeared originally in Counterpunch.

Corporate American media distorted and dismissed the South African genocide case brought against Israel in the International Court of Justice (ICJ).  It did so both prior to the decision by the ICJ and afterward.

The Israeli-Hamas conflict is a tragedy on many scores.  But for many, the Israeli response was unwarranted, leading some to argue that perhaps it was a violation of the 1948 Treaty Against Genocide, of which Israel is a signatory.  South Africa filed a complaint with the ICJ alleging this claim, asking for both a ruling that Israel’s actions do amount to genocide and a preliminary decision demanding Israel halt any actions that might constitute such action.

Immediately much of mainstream American corporate media dismissed the complaint.  Bret Stephens of the New  York Times  labeled the genocide charge against Israel as “moral obscenity.”  Ruth Marcus  of the Washington Post described the ICJ preliminary ruling as a “perversion of justice.”   The Economist argued that the term genocide is being “misused” here.  The Los Angeles Times banned reporters who signed a letter condemning Israel’s action from covering the story in part, because they demanded that terms like genocide and apartheid be used in the coverage.  The Wall Street Journal described the case against Israel as “moral inversion.” For much of the mainstream corporate media, the South African case was simply a political stunt and the ICJ should dismiss the complaint.

Yet the ICJ did rule.  It did not dismiss the genocide complaint. Instead, it declared in part that: “In view of the fundamental values sought to be protected by the Genocide Convention, the Court considers that the plausible rights in question in these proceedings, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article III of the Genocide Convention.”   The ICJ also ordered Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention,” including the killing of members of the Palestinians.

Yet for much of the mainstream American media, the story was not that there were plausible genocide violations on the part of Israel, but that instead the ICJ did not issue  a full order to it to halt all conflict.  The ICJ decision was twisted in its reporting.  While the ICJ did not say stop all military action because there might be some legitimate self-defense actions under international law, it did say stop all acts that might amount to genocide.  Effectively this might be all the actions Israel is engaged in.  Contrary to most  American media reports, this was a major loss for Israel.

So why the bias and skewed reporting?  Some will quickly jump to pro-Israeli and anti-Palestinian biases in the American corporate media.  Perhaps, but this is a simplistic answer.  The real answer is in at least three other forces.

One, is the tendency of the corporate media to heavily rely on the same official US government sources for its information and reporting.  There is an almost government-media industrial complex that forges a consensus, especially when it comes to foreign policy and national affairs.  This complex includes  Washington foreign policy think tanks, professors at prestigious universities, and government officials who form the foreign policy establishment and consensus.  This consensus reflects a bias that more often than not has led to major US foreign policy mistakes. The corporate media turns to them for  their news and reporting, reinforcing a tunnel vision when it comes to debate and discussion on foreign policy issues.

Two, the excessive media concentration in the hands of fewer and fewer for profit corporations excludes a diversity of opinions and alternative voices.  The corporate media reports what the Washington consensus is, excluding alternative and international voices or perspectives.  Not surprisingly, while US media accounts downplayed the ICJ litigation, much of the media across the world and outside the US gave it serious credence.

Three, and perhaps the most important, this bias is what is most profitable.  The days are long since gone when American journalism lived up to its ethos of reporting the news fairly and impartially, reflecting the truth. Instead of publishing “all the news that fit to print,” it may be more accurate to say it publishes “all the news that’s profitable to print.”  The readership of the corporate media lives in its news bubble and biases. Instead of challenging their beliefs,  the corporate media panders to it for profit.

Simply put, it was not profitable or in the interest of the corporate media to fairly report the ICJ genocide case. The biases were deeply imbued in the structure of the mainstream corporate media and a Washington foreign policy consensus that has repeatedly tilted the news.