In Mark Harris’ baseball novel Bang the Drum Slowly— there is an underrated film version starring Michael Moriarty and Robert DeNiro—the ballplayers relieve the tedium of life on the road with a mysterious card game of their own devising, called “TEGWAR.”
Stationing themselves in their hotel’s lobby, the players produce a deck. One deals a hand.
Before long, a star-struck fan will edge over to watch. Cards are slapped on the table. The players’ cries of glee (“Banjo! The first natural banjo since Joe DiMaggio in St. Petersburg!”) and frustration (“That’s a Double Honeybee!”) fill the air.
Eventually, the rube is invited to take a seat at the table. What baseball fan would pass up that chance?
Once he is in the game, the fan is flummoxed. His perplexity is treated with understanding.
“You’re probably used to playing Southeastern TEGWAR,” one of the ballplayers will commiserate.
“In the majors, everyone plays Western Canadian TEGWAR, a faster game.”
The fan is—and he will remain forever—one tantalizing step behind.
“TEGWAR” is an acronym. It stands for “The Exciting Game Without Any Rules.”
It’s a game Donald Trump and his lawyers are masters of.
Playing By the Rules
Prosecutors face two overlapping but distinct sets of challenges. First, they must investigate and evaluate a situation: gather facts and witnesses, interpret, document, analyze, and then decide on a course of action.
Then, they have to advocate: to marshal the witnesses, convert facts into admissible evidence, and, ultimately, work within the rules to shape and present a persuasive story to a court or jury.
Prosecutors, and especially elite federal prosecutors, take special pride in their mastery of the first set of tasks. That is where they spend their time.
Only two percent of their cases actually end in jury trials.
Thoroughness, attention to detail, identification of contingencies, scrupulous legal research, and planning are paramount.
When producing these intricate pretrial dossiers has been your life’s work—and it has been for Attorney General Merrick Garland and the career prosecutors who will manage the Trump case—this focus on preparation is hard to resist.
The storytelling function fades to an afterthought.
It seems that whenever you’ve done all that homework, the story will unfold inevitably. Besides, you want to display your work—that work is how the elite federal prosecutors recognize each other.
Federal criminal cases often turn into marvels of complexity, featuring casts of thousands and mountains of documentary exhibits, and lasting for months. Prosecutors presiding over these productions see themselves as deploying the expertise of chess grand masters.
And, the fact is, they almost always win.
The resulting self-confidence is one reason that the (hundreds) of former federal prosecutors offering media commentary on the performance of Donald Trump’s shambolic teams of defense lawyers have been uniformly derisive.
But another reason is that they don’t seem to understand that Trump’s lawyers are not playing chess.
Trump’s lawyers—and Trump—are playing TEGWAR.
TEGWAR’s Alternative Universe
For Donald Trump, TEGWAR is a way of life. Apparently, he saw very early that he had no choice.
In any game with rules, he would be the loser.
He isn’t smart enough, or strong enough, or brave enough, or focused enough, to win. And since fairness among players is not one of his concerns, who needs rules anyway?
Trump may play TEGWAR because he has to, but he has had quite a run playing TEGWAR. He’s good at it—a natural.
If Department of Justice (DOJ) allows itself to be baited into a game of TEGWAR, you can’t bet against Trump. The danger is that our embedded federal prosecutorial traditions might make the DOJ eager to snatch at his bait.
The prosecutors’ mania for thoroughness, for example, inescapably breeds complication.
The tendency is to charge every possible charge, using every statute you can find, against every co-conspirator who played any role.
But all criminal defense lawyers remember the “First Maxim” of the late Dave Niblack, a former Wisconsin state public defender whom I am proud to call a mentor: “Whenever you are litigating anything other than guilt and innocence, you are on the right track.”
Honoring that maxim, the TEGWAR players, directed by Trump, can guarantee that each of the prosecutors’ diligent paragraphs generates reams of motions invoking newly invented “rules.” (“The Fourth Amendment has always required a Double Banjo!”).
When combined, these pleadings will summon up a choking miasma of verbiage that drains momentum and obscures any prosecutorial theory of the case.
We will see the teachings of Wigmore on Evidence as rendered by the Marx Brothers, in marathon format. Every ruling will generate two new issues to litigate.
Whatever else a juror’s experience in the most important trial in American history will entail, it will include enduring long periods of excruciating boredom while the judge and the lawyers sort out these legal issues outside the jury’s presence.
Meanwhile, the prosecution’s meticulously constructed chains of inference will provide more tasty food for TEGWAR innovations.
In any chain some links—some witnesses or documents—will be weaker than others. The TEGWAR player will choose the weakest link, and make that the only link that matters.
In TEGWAR, there is no barrier against simply making up a link—for example, against exploiting a witness who isn’t even there (“Hunter Biden! Hilary’s laptop!”).
Framing Counts
In the courtroom (as in the court of public opinion, simultaneously in session) “framing” counts.
In the end, the outcome of the Trump drama will depend on whether DOJ can resist its endemic preference for trying to overwhelm with charges and evidence, recognize that it confronts a situation in which less really is more, and stick to the disciplined production of minimalist cases, one charge at a time.
Framing starts pretrial, even pre-indictment. Don’t join the Russia investigation obstruction with the Jan. 6 insurrection, and Mar-a-Lago document troves. Keep it simple.
It was illegal to take the documents. White House counsel told him it was illegal to take the documents. He took the documents anyway. He was given every opportunity to return the documents. He willfully refused. He kept them.
By all means, issue an invitation to Trump to appear before the grand jury and explain under oath why he took the documents.
That invitation is part of the public storytelling. He won’t accept the offer. He knows that a grand jury witness under oath isn’t free to play TEGWAR.
At trial, take advantage of the potential powers of primacy and recency: the tendencies of jurors in many contexts to remember best what they heard first and last. Remember that the prosecutor’s opening statement comes first, and then use it succinctly to set the narrow focus.
Remember that you don’t have to anticipate and knock down in your case-in-chief every fantastical theory the defense—in all likelihood without the testimony of Trump, who doesn’t dare face cross-examination under oath—attempts to raise.
In a federal criminal trial, the prosecution has the right to present a rebuttal case after the defense raises new matter.
If your rebuttal evidence is the most recent thing the jurors (and the public) hear, so much the better. Saying it last might be just as good as—maybe better than—saying it twice. You can streamline your case without risking lost impact.
The Story at Trial
Research tells us that jurors impose a narrative, story-like, organization on trial information.
Beginning in the trial’s first moments, they assign meaning to evidence by the incorporation of that evidence into one or more plausible accounts or stories of “what happened” during events.
But as New York University law professors Anthony Amsterdam and Randy Hertz reminded us in their brilliant anatomy of a terrific closing argument by New York Legal Aid defender Tom Klein, jurors can consider not only the story of the event, but the story of the trial itself.
TEGWAR might blow some smoke between the jurors and the event, but what happened at the trial, the jurors saw with their own eyes, right there, in the courtroom.
Every story is better with a Hero. In the story of your trial you have to remember that the Hero is not the prosecutor. (Sorry.) Your Hero can be the Jury.
And the jury’s heroism takes the form of its determined insistence on simply sticking to the point, despite the multiple temptations and distractions offered by the advocates of TEGWAR.
The stakes for DOJ and its leaders are very high. To lose this trial would be a nightmare.
Their anxieties are understandable, and under the circumstances, reversion to the familiar “kitchen sink” approach to litigation is a natural—probably the most natural—reaction.
Of course, the DOJ lawyers must feel that if they follow that tradition at least if they lose no one can say they didn’t use everything they had, that they left some stone unturned, that they didn’t take their best shot.
But this is case where “taking your best shot” entails accepting the risk of looking bad.
You have to bring the case. And it’s too important to let TEGWAR warp its outcome.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes comments from readers.
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