Ring-Fenced Case Realism
or what Donald Trump's lawyers need to know about Merrick Garland
Just about every day, someone on the Left or a Democratic politician vent their frustration how long it is taking for Attorney General Merrick Garland to arrest or indict former-President Donald Trump.
Barring Donald Trump actually shooting someone on Fifth Avenue, no one is arresting him. That said, it is almost a certainty that D.C. grand jury investigating the Mar-a-Lago documents case will indict Trump.
Unfortunately, its proceedings, like the D.C. grand jury investigating the January 6th Insurrection, are secret. The information about the Mar-a-Lago case and January 6th grand juries that is being reported is based upon examining docket entries and sitting outside the two grand jury rooms and taking note of who goes in and for how long.
Less secretive has been the Georgia election meddling grand jury in Atlanta, the case filed by Donald Trump in federal court in South Florida, and John Eastman’s lawsuit against the the January 6th Committee in California. Of the three, only the Atlanta case is a criminal proceeding. The case Trump brought before Judge Aileen Cannon and the case John Eastman filed in the Central District of California (federal) are civil suits with the purpose of stopping federal investigations (one by the FBI and the other by Congress).
And while the Department of Justice is carefully watching the Atlanta grand jury case, its interest in the cases brought by Donald Trump and John Eastman is largely on how it impacts the DOJ building a ring fenced case against Donald Trump et al. for violating the Espionage Act (the Mar-a-Lago documents case) and obstruction and seditious conspiracy (January 6th).1
What the hell is a ring-fenced case?
While it usually refers to a virtual barrier to legal or financial liability for a corporation, its figurative meaning in the context of a criminal prosecution is a case where there is no viable defense. Federal prosecutors, who have a 95% conviction rate, file criminal indictments so ring-fenced that less than 2% of all federal cases even go to trial.
Merrick Garland is no stranger to building ring-fenced cases and closing evidentiary gaps that might allow for a hung jury or an acquittal.
Let me tell you a story.
Merrick Garland was the supervising U.S. Attorney in the Oklahoma City bombing case. He wanted to prosecute the case himself, but was ordered to return to Washington, D.C.2 According to the U.S. attorneys working on the case in OKC (and Denver3) and the people who worked with Garland in the Clinton Justice Department, Merrick Garland's supervision was very hands-on and during the trial itself included lengthy telephone conferences.
The biggest problem with prosecuting Timothy McVeigh was a man named Richard Matsch, the federal judge assigned to oversee the trial. Matsch had been described a “curt” amd “irascible” and as a judge with a firm grasp on his gavel if a defense attorney or prosecutor was inclined to try to slow down the proceedings.4
Judge Matsch was also seen as a judge who tended to lean pro-defense at times. That perception among prosecutors is a myopic one. Most judges give the defense the benefit of every ruling they can, when they believe there is a ring-fenced case against the defendant.
One such ruling that Matsch made was that he would not allow the U.S. Attorneys prosecuting McVeigh to use a handwriting expert to confirm that multiple pieces of handwriting, including signatures, were Mcveigh’s (Timothy McVeigh did not use his name in carrying out his criminal atrocity).
McVeigh’s trial counsel, Stephen Jones, probably thought he had found that legal lever upon which he could move the jury to acquit, when Judge Matsch granted his Motion in Limine to preclude the use of a handwriting expert. Without such an expert, it was going to be harder to convict Timothy McVeigh on 8 counts of murdering federal agents.5
During closing argument, however, the U.S. Attorneys buttoned up that evidentiary hole by digitally cutting and pasting individual letters on various pieces of evidence spelling out "Timothy McVeigh" and then showing Timothy McVeigh’s signature from his military I.D underneath. According to the legal technology firm that put this together for the U.S government, Stephen Jones banged his head down on the defense table when the presentation was completed.6
McVeigh’s slim crack of hope for an acquittal (or more likely a hung jury) was slammed shut in the 45 seconds it took prosecutors to spell his name out from various pieces of admitted evidence.
The above is pure Merrick Garland. Methodical and laser-focused of the the realist goal of a prosecution — convictions without appeals.
In the case of Timothy McVeigh, it was fairly easy. In the end, McVeigh abandoned even fighting the death penalty.
In the case of Donald Trump, Garland knows that he will need an indictment that is indefensible and unappealable. Unfortunately, none of the lawyers Trump has hired to date seems capable of telling Trump that is what he is up against.
Those would be the main federal charges. Multiple federal crimes were committed in both cases.
Garland had actually begun doing so. He was directing the collection and organization of evidence, witness interviews, etc. on site in OKC.
The entire federal bench in Oklahoma had recused itself and the trial took place in Colorado.
https://www.washingtonpost.com/wp-srv/national/longterm/oklahoma/stories/judge.htm
https://en.wikipedia.org/wiki/Timothy_McVeigh#Arrest_and_trial
The reason I know about this is that I worked at a Philalphia law firm in the late 1990s and early 2000s as a paralaegal and sat through this legal technology firm’s presentation on what they could do.