Trial tactics 101

All of this hollering for witnesses and a real criminal trial in the Senate stirred up the old trial lawyer embers in me and got me thinking how I’d handle the case for the defense.

Understand, for the attorneys trial is warfare. For the Senate, it may be a search for the truth, but for the attorneys, it’s presenting the facts, both good and bad, in the best possible light for their client with only one objective — to get an acquittal.

In order to present the facts, an attorney has to know the facts. So let’s start with what we know — and what we can surmise.

You can be absolutely certain that everyone in the close quarters of the Oval Office knew what was going on. That means aides, assistants, secretaries, White House political staff, fund raisers, visiting political players, etc., etc.

Political power in Washington is measured in face time with the big guy. There are cabinet secretaries who have never had face time with the president, so it’s virtually impossible for some little cookie to slip in and out of the Oval Office for 15-minute segments with the man without everybody knowing.

It probably drove the Secret Service bonkers. Their job is to protect the president and not see or hear anything that doesn’t relate to their job. Monica, who is 20-something and is in love or lust or whatever you call it, was to put it mildly a security risk, so what do they do?


To begin with, they need to know what’s going on, so they tap her telephone. Since she could also be a plant, they probably have her on a 24-hour surveillance. Then they do a background check on her, check out her rsum, and probably want her medical records just to assure themselves that she’s not carrying something contagious. They want to make sure she’s not a looney who might be violent or dangerous, so they do a psychological profile on her, which means they need her psychiatric records. To protect him, it would help if they knew something about her background, or her family background.

They probably would also do an electronic surveillance to find out who else is tapping her phone or watching her. Initially, they may have been the only ones interested, but the word quickly gets out. Other agencies have contacts in the White House, or moles or some junior level player who wants to be a senior level player someday and is keeping all his or her options open on both sides of the aisle and spilling it all out to somebody. Chances are, before long, there is an FBI phone tap, perhaps a CIA tap, perhaps the special prosecutor has a tap, maybe a congressional investigator or two. There are so many people on Monica’s telephone the phone company practically has to set up a switchboard in her basement.

Now, somewhere along the line, the special prosecutor wants to build in deniability, so he uses an intermediary like the attorneys for Paula Jones or some other anti-Clinton crowd, and that’s another group to keep an eye on.

The more you know, the more ammunition you have, and you want it all because initially you never know what’s going to be useful.

Now you take what you know, or what you surmise, or what you suspect, and you go to your contacts in all of those agencies. As I said, every agency has ambitious people in it, people who are looking to move up and who are planning their next move. They are also always people who are disgusted at what’s going on and who will talk. They’ll get you the documents, and there are always documents. There are phone tap logs. There are summaries. There are confidential departmental memos. There are e-mails. There are requests for budget or payment. There are expense sheets. There are credit card bills. There are phone bills. There are requests for overtime. There are always paper trails.

Then you start discovery. You serve subpoenas. You take depositions. You ask them to admit facts but it only works if you already have the info because then you know when they’re lying.

Your best defense is always to put the prosecution on trial. It helps if they’re dirty, and in this case, guaranteed they’re all dirty. Illegal phone taps. Illegal bugging. Almost guaranteed they did a black bag job on her apartment, went through her papers looking for that little love note saying, “I’ll always remember our night in . . . .”

Next, you turn to your own case. You start out with the assumption that your client has forgotten something significant, or is lying to you, or feels like such a fool that he’s in total denial or probably all three.

For example, there is no question that at some point Monica became a problem. She was very emotionally involved and getting reckless, and it was only a matter of time before she did something very foolish and public. They had to move her out of there, but the last thing they wanted was a woman scorned. Office affairs are tough to break up and can get very messy, particularly when she’s young and he’s president of the United States.

You can ask him, but you can just bet he’s not going to tell you everything, particularly when he’s a lawyer himself. So if you’re going to do your job and defend him, and since your client is as much of the problem as the prosecution, you need your own sources inside the White House, or somewhere you’re going to get blindsided on something big.

You begin to see how quickly the case grows. It’s not neat, and it’s not clean. Every witness raises another potential cross-examination and a rebuttal witness or two and takes forever.

To complicate it, there are few set rules, so right now the prosecutors and the defense are trying to manipulate the rules to give themselves an edge.

There is one thing I forgot, and that’s the press. As counsel, you of course have an ongoing campaign of leaks because public opinion is an essential part of this defense, and you want to keep the prosecution’s deeds on the front page.

I’d say that so far, the defense has the edge, because I can’t think of anything more unwieldy than a prosecution team of 13 large egos, some of whom are quite bright and some quite stupid. But trials are iffy propositions, and things can change very quickly.

Alas, it shall never be, but it sure would be fun to try it.

The Malibu Times is the first newspaper in Malibu, serving the community since 1946.

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