On Tuesday night, in a striking bit of cable news programming, MSNBC host Ari Melber invited Trump attorney Joe Tacopina to the studio to defend his famous client, who may be about to be indicted by one (or more) prosecutors. The segment featured a lot of excuses, and some clearly flawed logic. Tacopina notably argued that Trump’s lies about the Stormy Daniels hush payment weren’t actually lies for at least two reasons: first, because the former president wasn’t under oath when he said them, and second, because he didn’t want to violate a confidentiality clause.
You can’t really blame Trump’s attorney. Prosecutors get to select and curate the facts they take — or don’t take — to trial.
You can’t really blame Trump’s attorney. Prosecutors get to select and curate the facts they take — or don’t take — to trial. Defense attorneys don’t get to pick their facts. They often have to take the facts as they are, and figure out what to do about them on the fly.
That may also answer the obvious question of why Tacopina decided to do a live TV hit in the first place, and try to thread this very tricky needle. The answer? It probably wasn’t his choice. His mission was likely to explain away Trump’s lies while also preemptively undermining the accusations in New York and Georgia.
Did he succeed? Maybe a little, but not because he successfully rebutted any main prosecutorial arguments. Instead, it may have helped distract from the primary issue: whether Trump did anything worthy of prosecution by the New York County DA’s Office.
Distraction and deflection is a good strategy when you have a client that is hard to defend: state a general truth and hope that most of the people listening follow it like a salmon follows a shiny lure. Sure, Trump lied about Stormy Daniels — but he had to, so it’s fine.
Even Tacopina would probably concede (in private) that his defense of Trump wasn’t perfect.
Even Tacopina would probably concede (in private) that his defense of Trump wasn’t perfect, but it was the best he could do under the circumstances. Unsworn lies are still lies. And lies not said under oath can still be crimes, if they are made to law enforcement authorities. Unsworn lies made to private persons can be crimes too, if, for example, the lies are used to defraud victims. In fact, the very crime that reportedly is being contemplated by the New York County District Attorney is one that criminalizes falsifying business records. The statute does not require the falsification to be sworn. But whether a crime or not, whether uttered to law enforcement or written in a business record, lies are still lies.
Tacopina’s theory about Trump’s confidentiality clause excuse may carry a little more weight, but not much. Keep in mind that any confidentiality clause that Trump says forced him to lie was almost certainly a clause he insisted upon in his agreement with Stormy Daniels. It’s not likely that Daniels was involved in negotiating or demanding confidentiality. She would not have been the party offering confidentiality as part of the bargain. Trump is the one who has a documented history of using such tactics.
But confidentiality clauses do not require people to affirmatively make false statements — they require people to keep things confidential. They require silence, not lies. The appropriate response to a question covered by a confidentiality clause would be “no comment,” not a false comment. Beyond that, a contract requires a benefit provided by each party to the other party. And a confidentiality clause would seem to only benefit Trump, not Daniels. That’s a gift, not a contract. The benefit Trump received under his contract from Daniels was her silence. The benefit Daniels received from Trump was his money. Arguably, if silence only benefited Trump, it was his to waive if he felt like telling the truth. Daniels probably would not bother to sue; she only benefited from this story going public. After all, could she have profited from her “Make America Horny” nationwide tour without her Trump story? No. With other politicians, or even celebrities, an admission to false statements could be a career-ender. But with Trump, it’s kind of baked into who he is. His fans know it. They don’t care. This puts his defense team in a difficult spot, as we saw on Tuesday. But no matter how many times you try to hide behind legalese and semantics, lies are lies. Often lying is not a crime. Sometimes, it is.
