Arguing in the alternative

I was a little surprised to learn, in a first year law school class, about arguing in the alternative. It may not be intuitively obvious that you can defend yourself on multiple, sometimes contradictory theories, but it makes a certain amount of sense in our adversarial legal system.

Charged with murder you answer that you didn’t do it, you weren’t even in the state, you have an alibi witness. You also argue that even if you did kill the guy it was legally justified self-defense, and if not self-defense, it was done without malice aforethought and therfore was not murder, and if it was murder under the law then the murder law is facially overbroad and therefore unconstitutional.

You can throw up as many contradictory defenses as you can think up, placing the burden on the prosecutor to overcome each one, beyond a reasonable doubt. Being creative, within the universe of legal possibilities, is a lawyer’s legal responsibility to a wealthy client (lawyers for the poor usually don’t have the same luxury to create).

A lawyer for Trump just sent a motion to the Supreme Court asking the Federalist Society Six to carefully consider a recent Washington Post interview with January 6 Committee Chairman Bennie Thompson, who showed his nefarious political bias by admitting (note damning action verb!) that if the evidence points there the committee would make a criminal referral for the former president.

I didn’t do anything wrong, and if I did, these evil fucks are still persecuting me! I don’t know if Binnall is a legal genius, but he’s throwing everything he’s got against the wall to see what sticks. He’s throwing it to six judges who’d probably be happy for a legal figleaf with which to fully clothe their beleaguered, eternally brawling, party leader.

And why not? The lawyer is just earning the fees Ronna McDaniel [1] will use political donations to pay.

[1] For RNC executive compensation schemes, see this very Trump Org type setup

https://www.propublica.org/article/republican-national-committee-obscured-how-much-it-pays-its-chief-of-staff

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