After I wrote this, I found a few holes in this framework. But I am pretty sure I could fill them in and it still works. I didn't do the greatest job of articulating the end. The entire basis was to show that these aren't for criminal prosecutions; these are specifically for the civil RICO case.
All evidence in a case must satisfy the FRE. Regardless of if they did in a prior case. My presumption in this framework is that the main difficulty in introducing these docs are the authentication factor. Because they wouldn't be originals. And because the spooks in government aren't going to authenticate them for him. Although I did not base this theory on using them from some other criminal case, - but rather his own search and seizure case - you prompted an interesting thought. Evidence introduced in prior cases would not lack the authentication problem. It doesn't overcome FRE 403 "substantially _______" nor does it overcome FRE 1003 "unfair" determination either. But that is likely only a problem with a corrupt judge. Although I find it unlikely that they would get far enough with a corrupt judge to get an evidentiary ruling...they'd boot it under 12(b)(6).
I still don't buy this. But this is the best framework I could come up with to demonstrate the theory is viable. Not sure what other means it could work; hence, I think people are misreading the meaning of what was said.
Authenticating the documents isn’t the battle you think it would be - government documents are admitted regularly and it isn’t a huge struggle.
Presumably, the government will have them admitted (if the case goes that far) as part of their case against DJT, namely showing that they are indeed actual government records maintained in violation of the espionage act.
Ya, but I am not talking about any Trump criminal trial. The government can authenticate its own.
But in Trump's RICO suit, how can he introduce these documents? Who is going to authenticate them? You know those agencies aren't going to help him out. And if they lie and say they are not authentic, how can he prove otherwise? Plus, without those docs, his RICO suit might get 12(b)(6)'d cuz it would be conclusory allegations instead of facts. I can't believe for a second that he could simply mark them as an exhibit and have them admitted...
The FRE of evidence would have nothing to do with surviving a 12b6 motion, the admissibility of the documents wouldn’t matter in that context.
If he did need to admit them, he would subpoena the custodian of records for whatever agency maintains them to authenticate them. They would probably do so my stipulation or affidavit as it’s so routine. He’s former POTUS so it’s very difficult to argue their authenticity (as POTUS he would have had access to all manner of documents).
Just because it’s admissible doesn’t mean the substance of the documents just fly in - if he is admitted the documents for the truth of the matter asserted in the documents, he would essentially need to subpoena the author of the documents to avoid hearsay problems (unless it falls into a hearsay exception).
But none of that would have any bearing on. 12b6, and none of that would help him in a separate RICO case.
After I wrote this, I found a few holes in this framework. But I am pretty sure I could fill them in and it still works. I didn't do the greatest job of articulating the end. The entire basis was to show that these aren't for criminal prosecutions; these are specifically for the civil RICO case.
All evidence in a case must satisfy the FRE. Regardless of if they did in a prior case. My presumption in this framework is that the main difficulty in introducing these docs are the authentication factor. Because they wouldn't be originals. And because the spooks in government aren't going to authenticate them for him. Although I did not base this theory on using them from some other criminal case, - but rather his own search and seizure case - you prompted an interesting thought. Evidence introduced in prior cases would not lack the authentication problem. It doesn't overcome FRE 403 "substantially _______" nor does it overcome FRE 1003 "unfair" determination either. But that is likely only a problem with a corrupt judge. Although I find it unlikely that they would get far enough with a corrupt judge to get an evidentiary ruling...they'd boot it under 12(b)(6).
I still don't buy this. But this is the best framework I could come up with to demonstrate the theory is viable. Not sure what other means it could work; hence, I think people are misreading the meaning of what was said.
Authenticating the documents isn’t the battle you think it would be - government documents are admitted regularly and it isn’t a huge struggle.
Presumably, the government will have them admitted (if the case goes that far) as part of their case against DJT, namely showing that they are indeed actual government records maintained in violation of the espionage act.
Ya, but I am not talking about any Trump criminal trial. The government can authenticate its own.
But in Trump's RICO suit, how can he introduce these documents? Who is going to authenticate them? You know those agencies aren't going to help him out. And if they lie and say they are not authentic, how can he prove otherwise? Plus, without those docs, his RICO suit might get 12(b)(6)'d cuz it would be conclusory allegations instead of facts. I can't believe for a second that he could simply mark them as an exhibit and have them admitted...
The FRE of evidence would have nothing to do with surviving a 12b6 motion, the admissibility of the documents wouldn’t matter in that context.
If he did need to admit them, he would subpoena the custodian of records for whatever agency maintains them to authenticate them. They would probably do so my stipulation or affidavit as it’s so routine. He’s former POTUS so it’s very difficult to argue their authenticity (as POTUS he would have had access to all manner of documents).
Just because it’s admissible doesn’t mean the substance of the documents just fly in - if he is admitted the documents for the truth of the matter asserted in the documents, he would essentially need to subpoena the author of the documents to avoid hearsay problems (unless it falls into a hearsay exception).
But none of that would have any bearing on. 12b6, and none of that would help him in a separate RICO case.