One legal analyst predicts that Donald Trump will continue to use his lawyers to push the envelope in court to make more money from his supporters.
Trump's lawyers in the New York fraud case submitted their motion for a mistrial Wednesday, attacking Judge Arthur Engoron and his law clerk. The accusation is about political contributions they say were made by the staff of the judge and their claim that the judge is "biased" against them, as evidenced by his decisions on objections and motions.
Glenn Kirschner, a former federal prosecutor and host of the "Justice Matters" podcast that explains complex legal issues to laypeople, spoke to MSNBC Wednesday about the "why" part of the motion.
"One, they need to make motions that they believe have some merit, even if it's a foregone conclusion that Judge Engoron is not going to grant a motion concluding that he is hopelessly biased, which is really what he would have to conclude if he were to grant this mistrial motion," explained Kirschner. "But often defense attorneys will make motions — any attorneys will make motions —to simply preserve the issue for appellate review because if you don't make the motion in the trial court, you have waived your opportunity to raise it in the appellate court."
He also points out that a "mistrial motion" could sound like a big deal, but it's typical because it's one of the tools available to defense lawyers.
"Mistrials are almost always denied, but they have then preserved their right to raise it on appeal," he continued. "The other thing is it feels like Donald Trump is perhaps directing his lawyers to be as inflammatory as possible, seeing that this is yet another opportunity to get some disinformation, maybe even propaganda, in the public square. And some of these court filings begin to sound like Donald Trump's 2:00 a.m. social media posts."
Alicia Menendez, filling in for Nicolle Wallace, asked to explain Trump's objections to the law clerk sitting so close to the judge and the accusation that something is untoward.
"Trump's lawyers write that the judge's clerk is, 'judging,'" she read as Kirschner shook his head at the absurdity. "Saying the law clerk is given unprecedented and inappropriate latitude. Do you think they're going to be willing to let this go, Glenn?"
Kirschner said that Trump and his team will "play this for all it's worth — if only with Donald Trump's base in an attempt to grift more money from them."
However, he explained, a judge has a lot of latitude when it comes to running the proceedings and many judges use their law clerks for a lot of activity during the trial. Trump's motion objects to the law clerk passing notes to the judge during the trial. Some do research, others suggest questions the judge can ask, and some even draft opinions.
"I mean, the law clerks are kind of the behind-the-scenes unsung heroes, and so, he may have a somewhat unusual practice of having his law clerk right there available to him to consult in real-time," Kirschner said. But there's "nothing improper about it."
See the full panel discussion with Kirschner and MSNBC legal expert Lisa Rubin below or at the link.