Crowd-Litigating The People v. Donald J. Trump (N.Y. Sup. Ct.)

Correct me if I am wrong. But it appears that People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct), will be the first major case in U.S. legal history to be crowd-litigated. Interventions of law professors and litigators with something to say are not coming on appeal. Instead amicus briefs are being filed now, complete with citation to cases and statutes, and factual analysis, on Twitter, blogs, and op-eds. Major examples are the series on JustSecurity, Prof. Lee Kovarsky’s Lawfare post on preemption, and Prof. Jed Shugerman’s New York Times oped to which Prof. Kovarsky is responding. Eric Columbus maintains an indispensable running list on Twitter. It is reasonably apparent that these writings are not only intended to educate the public, but to communicate with the prosecutors and defense attorneys involved in the case. This is entirely appropriate; if the prosecution is defective, it should end promptly; if it is righteous, the best case for it should be made.

This is a case where, as it happens, there is no shortage of genuine expertise. Defender organizations and prosecutor’s offices who work in the state courts in New York are unusually productive of legal scholars. A quick Google search shows that among many others, alumni of the Criminal Defense Division or Criminal Appeals Bureau of Legal Aid Society of New York include Barry Scheck, Sheri Lynn Johnson, and JaneAnne Murray; veterans of the New York County DA’s Office include Deborah Tuerkheimer, Jeannie Suk Gersen, and Sandra Guerra Thompson. Alan Michaels seems to have been a prosecutor in a now-important New York County decision invlolving the statute at issue in the prosecution.

While none of the above are necessarily following the Trump case, for this crowd litigation to occur, it is necessary for there to be a body of lawyers who are expert in New York practice. Although the criminal laws of no two states are identical, New York law is unusually distinctive. Unlike many states, it does not model its laws on the Federal Rules of Evidence or Criminal Procedure, but instead has its own complicated amalgam of evidence and criminal procedure statutes and rules, along, of course, with caselaw.  The New York Penal Law is an early version of the Model Penal Code, but, to keep things interesting, New York courts regularly find dispositive cases decided under the repealed and supplanted codes. Without a background in New York criminal practice, general smartness or criminal law experience elsewhere may well be unhelpful—inaccurate--in commenting on a New York prosecution, unless it is preceded by full research.

I suspect this continuous workshopping of the case will primarily aid the defense. The prosecution had years to prepare the case, and if they did not think hard about the potential roadblocks and defenses, then their reputations will justifiably be marred. For that reason, given their resources, I assume the case was carefully prepared and war-gamed.  The lead defense attorney, Todd Blanche, is richly experienced, but his website suggests he is now a sole practitioner after years of working with large firms and the U.S. Attorney’s Office in the Southern District of New York.  The scrum of lawyers seen at counsel table at the arraignment may be more in the vein of too-many-cooks rather than a coordinated team.

As a game-theoretic question, I assume the actual prosecutors and defenders will at least glance at these materials. Conceivably, every lawyer or professor comment will be something already spotted and evaluated.  But it would be embarrassing to be surprised, or to lose, on a point which had already been addressed and discussed in the legal community.