Question: Did Trump’s Lawyer Decide To Throw The Case?

Granted I’ve stepped a bit (maybe a lot) into the rabbit hole but bear with me.

Trump as we know has been in need of first rate legal talent in recent years and has had considerable trouble getting it.  Party because tony, big name firms don’t want the orange Trump stench to color the reputations of their firms, and cost them business.  Word is many have had richer people than Trump say they don’t want their names associated with a firm willing to defend him.  Rich, really rich people and businesses that actually pay their legal fees and provide far more income than Trump or even Trump and some of his friends would bring in.  Which leads me to the other issue which is Trump having a long history of stiffing his lawyers when it’s time to pay his legal bills.

Given that, anyone with half a brain, the (very) few really good, and even some of the not-first-rate but still experienced and above ambulance chaser level lawyers have taken to asking for, and even sometimes getting decent upfront retainers to work for him.  It’s likely lead lawyer in the rape case currently being tried, Joe Tacopina (I’ll refrain from name calling on him for this one article) managed to secure a retainer from Trump.  But, maybe it wasn’t a typical agreement.

What do I mean?  Tacopina would have asked for a lot, and certainly more than he was worth.  Trump, who desperately hoped this case would never make it to trial might well have negotiated a split retainer.  An amount around what Tacopina wanted but paid in installments.  Say, half to two-thirds upfront off the bat with the remainder to be paid if and only if the case actually went to trial.  And the remainder paid out only if the case was dismissed and never made it to a courtroom.  Particularly if there was a bonus in it for him if Tacopina managed to get the case dismissed or at least managed to drag it out until Carroll died (she is now 79 after all) Tacopina might well have gone for that.

However, matters ground forward.  Slowly but inexorably and despite every delaying tactic Trump and his legal team could muster things progressed to the point earlier this year when it was almost certain there would be a trial.  Attempts at delay never stopped of course but a fed up judge finally made it clear that come late April proceedings would commence.  Here’s the thing.  There were tons of motions filed and arguments before the judge between Trump’s lawyers and Carroll’s about what evidence would be introduced at trial and what would be excluded.  Billable hours to put it in lawyer’s terms.

I for one don’t think it’s a crazy notion to think that even if Tacopina got a decent, full retainer upfront that earlier this year representing Trump, all those billable hours he and others at his firm were putting in had become a money losing proposition.  Then all those procedural motions kept going against Tacopina/Trump.  In those last couple of weeks before the trial started even a third-rate lawyer would have known their case was in deep sh!t.  And while not first rate Tacopina is quite a bit better than a third-rate lawyer.

His ONE hope was to discredit Carroll once he had the chance to cross-examine her.  From where I sit he probably thought his only chance was to bet big, “all-in” on the old-school rape defense strategy.  If so it was a sucker bet from the start.   First of all, the #MeToo era came about.  Defense attorneys in rape trials used to get away with all manner of vile tactics.  Slut shaming.  Taking advantage of victim’s trauma which we know can manifest for years if not the rest of their lives that cause even the tiniest inconsistency in their account of the rape.  And of course since most rapes, even now never get reported or time passes before they do and any chance for physical evidence like a medical exam and/or rape kit isn’t there for documentation all the old-school stuff usually worked.  And in an ugly form of reinforcing rapist’s ability to get away with their crime(s) caused women to be even more reluctant to speak up.

Well, that’s started to change.  There’s a long way to go but at least we appear to be headed in the right direction.  More importantly, prospective jurors by which I mostly mean men have a better (not good mind you, but better) understanding of why women don’t go to the police.  Often they appeal even to their most trusted friends they might (might mind you) have confided in when the rape took place to keep it secret.  And that many women don’t even get counseling.  Given that, the old-school attack tactics don’t play with juries like they used to.  If still too slowly, awareness and attitudes, particularly with juries are changing.

Now however, even men increasingly understand an appalling fact.  That they know someone who has been if not raped then sexually assaulted without “penetration” during their life!  Often to their horror they find one (or more) is a loved one.  It makes this awful crime hit home in a way it didn’t used to.  With an ever increasing number of regular people.  Juries are made up of mostly regular people.

Again, knowing that and with a better understanding of why women don’t report rape and/or other sexual assault the old-school defense stuff can and sometimes does backfire.  So Tacopina faced that problem going in.  At least part of him had to know it was a roll of the dice.  Still, he’s an attack dog lawyer by nature or Trump wouldn’t have him as the lead lawyer to begin with and he clearly intended to go with his instinct to do what he’d done in the past, #MeToo be damned.  If he had any misgivings I’m sure Trump ordered him to get over it and that would have quieted any doubts.  However I can’t help but wonder to what degree Tacopina knew it was a risk to handle the case that way.  But from his point of view as long as he was getting paid he didn’t care.

However, he had another problem his nature may have blinded him to.  The typical rape victim isn’t an E. Jean Carroll,  someone with a long professional life of being well known and sometimes sharing the spotlight that shines on other famous people and stories.  Carroll was already a minor celebrity in her own right when the rape happened.  The trauma did in fact negatively impact her career but still she continued to work.  And over time after this case was filed and moved forward she’s done countless interviews and face plenty of questions.  Admittedly mostly from sympathetic interviewers but with all that foundation being prepped for the attacks she and her lawyers anticipated from Team Trump she was going to be a tough witness for Team Trump to break.  I’m certain I’m far from the only person who believed that before the trial started.

She wasn’t some average nobody.  E. Jean Carroll is smart, tough, has spent enough time in and around famous people and the spotlight that she wasn’t likely to wilt when attacked.  Tacopina and Trump miscalculated on that.  “Bigly.”

So getting back to where I started I can’t help but wonder whether the case had become an actual burden (financially) for Tacopina as the trial approached.  It’s not like Trump would shell out more money once it became clear Tacopina failed to prevent a trial.  And Tacopina would have had trouble from the judge if he simply up and quit with weeks to go.  The judge had already made it clear on the record he wasn’t putting up with any more delaying tactics.  A motion to withdraw from Tacopina would not have been well received by Judge Kaplan.  So Tacopina was stuck.  And maybe he thought the odds might still be in his favor because of his mistaken belief that his “tough guy” routine would overwhelm Carroll.

But from all accounts the jury was riveted by Carroll during her testimony on direct.  And at the end of his first day of cross-examination Tacopina knew he couldn’t crack her, but worse had likely bolstered her credibility with the jury!   Tacopina had to know at that point he was in a Harlem Globetrotters vs. the New Jersey Generals game and Team Trump was the Generals.  Everything that had taken place and that which was to come was spectacle and the outcome was pre-determined.  Oh, Carroll’s lawyers still were presenting more of their case but Tacopina had only one witness he planned to call when it was his turn.  Funny thing, that witness suddenly cancelled!  Something about being too sick.

I’d be willing to bet that the “illness” was not getting the promised appearance fee to show up in court.  Especially if Tacopina had to front it out of whatever Trump had paid him.  Trump had run away to the UK, and one doesn’t have to be a great or even good lawyer to know given how the trial unfolded from the get-go it was a bad look for him not to have at least sat at the defense table.  And there was no way in hell Trump would be taking the stand.  Even TRUMP knows what a sh!tty witness he is when put under oath.  That’s why Tacopina was so insistent last Thursday the defense wouldn’t put on a case.  Even after Trump issued his “I have to go back and confront my accuser” comments from his golf course in Ireland Tacopina knew it wouldn’t happen.  Is anyone outside of MAGA world surprised that the judge’s virtually unprecedented legal generosity giving three days to petition the court to re-open the case to allow Trump to testify had the deadline pass with no motion?

So, final arguments went forward as scheduled today.  The reporting is that Tacopina’s closing argument is more old-school stuff.  Vile, despicable stuff like we got from him during his cross of Carroll, and for that matter other witnesses Trump had sexually assaulted but not outright raped.  Hell, he even tried making stuff up, stuff that hadn’t been brought up during the case! (Which generally is a no-no) Like Carroll got the idea of accusing Trump from a Law & Order SVU episode!  He even tried to flim-flam the jury with “poor Trump, why would he risk his star The Apprentice show” even though the rape took place in 1996 and The Apprentice didn’t air until 2004!  (I have a feeling the jury will notice that!  And it won’t bode well for Tacopina’s credibility or Trump’s case)

It’s my contention Tacopina knew it was over by the end of his first day of cross-examination of Carroll.  That if he hadn’t decided before the trial started to “Git er done” and wash his hands of the whole mess then he decided right then and there after his first day of cross examination of Carroll he was going to lose and the best thing for HIM was to get this over with as quickly as possible.  He also knew losing would mean being fired and that he’d never see another dollar in payment from Trump including any money owed.

So, like an athlete throwing a game/match he decided to tank his case.  Sure, Trump will appeal with a different lawyer.  (Who wants to bet against me that Trump will have a “You’re FIRED!” text cued up when the jury comes back and if he loses Tacopina’s phone will light up with it before the judge even has a chance to confirm with the jury’s foreperson?)  Sure, just as with an athlete people will take a hard look and believe they “threw it” but believing it and proving it are two very different things.  Being a lawyer Tacopina knows that better than anyone.  The jury will have the case for deliberation tomorrow and I’m betting Tacopina is hoping they are back with a verdict by the end of the day.  A little paperwork and he can be done with Trump.  And stop losing money.

If he was already losing money representing Trump before the trial started and because of how pre-trial motions went thought he was likely to lose he might have made the decision to cross-examine Carroll the way he did not just ouf of instinct and habit but to get a quick verdict.  And as I’ve said for damned sure he knew his/Trump’s case was lost after that first day of Carroll’s cross.  Ever since he’s just wanted to get it over with.

And if there’s one profession that has expertise on how to get away with losing on purpose it’s lawyers!

Again, all this is speculation but if you’ve read this far think over what I’ve said.  I say it’s more than a little possible that somewhere along the line Tacopina started losing money defending Trump and realized was on the wrong side of the odds of winning/losing the case.

And simply wanted to get it over with as quickly as possible AND chose to help it along to that result.  Give the jury every reason to rule against his client – and quickly.