NO DEAL THIS TIME AROUND

Five years ago, I was giving a talk at the Amagansett Public library about the memoir I had just published. The book included a chapter about the deal our team had made for the resolution of an anticipated felony indictment of our client Vice President Spiro T. Agnew. At the end of the talk, an audience member asked whether, if asked, would I represent President Trump? I said I would do so only if he agreed in advance that my assignment would be to negotiate his resignation.

I guess it's not surprising that having been part of the small team that wrought the Agnew deal, in the last couple of days I've received inquiries from friends and others about whether I could foresee Trump making an Agnew-type deal to escape the devastating indictment just handed down by the Florida grand jury.

My answer is a consistent,"Are you kidding? No fucking way!"

The Agnew deal was a very close question, and the possibility of a Trump deal is not. The situations are way different. In no particular order, here are some of the reasons.

                                 I

The nature of the potential charges against Agnew were virtually insignificant compared to the criminal exposure of Donald Trump.            Agnew was accused of accepting "pay for play" payments while Governor of Maryland  whereas the charges against Trump involve conduct adversely affecting national security. The retention of, and dissemination of the information contained in documents involving nuclear and military secrets is horrendous. Trump not only endangered our national security system and its participants, he then lied about it, and conspired to obstruct justice by causing other people, including his own lawyers, to do likewise. If convicted, he could possibly spend the rest of his life in federal prison. It is inconceivable that the DOJ would deal away conduct so serious.

                                  II

In Agnew, we had a triable case. The evidence against him, so far as we knew, was testimony from individuals, who were concerned about their personal criminal liability. They had not yet been exposed to cross examination. Indeed, the vice president had not yet been indicted.

In contrast, the evidence against Trump is not  deniable. Much of it consists of Trump's own statements, as well as photographs, tapes, and documents that conclusively prove an effort to deceive the government and obstruct justice. The content of the stolen documents is written in simple English that any juror or judge can read and understand. If there were a summary judgment procedure in the criminal law, this case would fit neatly into that pattern.

The only thing that Trump has going for him is the possible politicization of the judiciary. Whether Judge Cannon can rise above her disgraceful performance in earlier proceedings (involving documents seized from Trump pursuant to a lawful search warrant) is a serious question.  She was taken to the woodshed by the conservative 11th Circuit, is said to be smart, and presumably has some self-respect.

At worst, while a sitting judge can certainly cause delay and confusion if she works at it, one thing she cannot do is change the overwhelming evidential showing in this indictment. One has to assume Judge Cannon is a loyal American, and will rise above the political nonsense being spouted by some of the MAGA nuts who abound.

                                      III

The current political tribalism is vastly different from that in 1973. In the making of the Agnew deal, the conflict was all on the prosecution side. Attorney General Elliott Richardson was directly involved in every detail. He was openly concerned about the national interest. He knew that a prosecution of Agnew could take 2 to 3 years to complete, and during that time, Agnew would remain next in line to a President who was hanging on to his job by his fingernails because of the Watergate scandal. 

Richardson's conflict was with the local Maryland prosecutors who wanted to add this high-end scalp to their belt. But the A.G. was  concerned with larger issues, and so was the presiding judge who abandoned precedent, and agreed to the terms of the deal.                                      

The rupture within the Department of Justice was influenced by, and I believe resolved by, a set of facts that were (and still are) unprecedented: We had applied to Judge Hoffman for an order enjoining the government from presenting evidence to the grand jury because there had been a cascade of leaks from government sources that produced numerous press accounts prejudicial to our client. Many of those public reports began with “High DOJ officials have told us" or similar language. We contended those leaks contaminated the grand jury, and we could never get a fair vote out of that body. 

Judge Hoffman denied our application to enjoin the presentation of evidence to the grand jury, but he said "Look fellas, you say the government leaks, the government says it does not leak, how can I determine which is true?" We responded that we had prepared an order that solved that problem: let's take the deposition of the reporters and let's take the depositions of the DOJ officials who have publicly said they didn't leak information, and we'll get to the truth. We presented an order to that effect and the judge signed it.

That order was catastrophic to the DOJ  because Richardson had ordered the FBI to examine into the leak issue. They found 137 people in the DOJ and IRS who knew of the Agnew investigation. The FBI interrogated all of them, and they all signed affidavits swearing that they didn't leak. But it was very clear that one or more of them had thereby committed perjury, and everybody knew it, including the Judge who told both Richardson and his Chief of the Criminal Division Henry Petersen, on the record “Look,  your team has leaked and you have to face that."

The result was that if Richardson could not get rid of this case, he would then have to deal with a question of seeking out the leaker(s) and deciding whether or not to seek perjury indictments against the people in his own department. That was the final straw and the "national interest" team put the matter to bed and made the deal.

No such internal division (so far as we know) exists in the Trump case. Now the division is between the Department of Justice on one side and the MAGA wing-nuts on the other. (Anybody who could read this indictment and still support Trump is virtually "unamerican", certainly by classic Republican standards. And  that is especially true of people who serve in public office.) The result would be that any deal between the DOJ and Trump would unleash a firestorm of criticism from both the wing-nuts and the Responsibles. Both sides would be assaulted by harsh criticism and nobody but Trump would benefit.  It will never happen.

                               IV

Right now, the discussion is about Jack Smith and Merrick Garland’s Florida indictment (and I suspect they have another one coming out of the grand jury in the District of Columbia concerning the events of January 6.) But 

Smith and Garland are not the only game in town. Trump has pleaded Not Guilty to a 32 count felony indictment brought by Alvin Bragg in New York County in connection with hush-money payments to Stormy Daniels, and there is every expectation that Trump and some of his colleagues will be soon be indicted in Atlanta by District Attorney Fani Willis for Trump’s efforts to overturn the will of Georgia citizens who selected Biden by some 11,000+ votes and sent legal electors to Washington for the January 6 count. So any "deal" would have to involve not only the Smith/Garland team, but Bragg and Willis as well. 

Not a chance.

                                      V

Once the parties agreed to the Agnew deal, execution was simple enough. We went to court, the client agreed to plead nolo to the indictment we had reviewed before hand, and one of our team members was in the clerk's office on the phone, confirming that Agnew’s resignation letter had been submitted to a member of the staff of the Secretary of State. The entire procedure took less than a half hour.

But Trump has no office from which he can resign. He could promise not to run for office again, but a Trump promise is worthless. I guess lawyers could work out an agreement whereby he consents to state and federal injunctions should he appear on any ballot, but that's a tricky proposition. I can think of several objections of a technical nature, but I need not go into that swamp here. It's enough to say nobody in his right mind would take Trump at his word.                                    

                                  VI

Finally, Trump is Trump. In order to make a deal in a criminal case, the defendant has to admit to something. Not everything, but something. Trump's megalomania prevents that from happening. He is functionally incapable of admitting to any kind of criminality. It will never happen.

                                       VII

In conclusion, I add this irrelevant aside: Putting this blog together, I had to refer back to several prior posts to make sure that I had the facts, dates, and names right. In that process I came across this three-month-old prediction that tickled me. I was writing about a theoretical Trump second term and had this to say about the Grifter-in-Chief:

“At the end of his second term, would Trump take the Resolution Desk to Mar-a-Lago, crammed full of confidential papers? Answer: of course he would.”

A bientot.

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Details of the Agnew deal are set out in my memoir: "The Client Decides," available at Amazon and on Kindle.

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