Lincoln vs. Trump and the Role of Judicial Notice

On August 29, 1857, William “Duff” Armstrong was charged with murder. As it happened, Armstrong’s father had studied law with a rising figure in criminal practice in the American Midwest. A man who would later be elected President of the United States. A man by the name of Abraham Lincoln.

Upon hearing of Armstrong’s predicament, Lincoln, a family friend, immediately offered his services pro bono. The claim at trial was that Armstrong had slain a man named James Metzker with something called a slung shot, which was akin to a medieval-style ball and chain.

But there was a problem for the prosecution. The main witness to the alleged crime claimed he’d clearly seen Metzker’s demise and clocked his executioner from a distance of 150 yards in the dark. He was able to bear witness effectively in these conditions, so said the witness, because of the clarity provided by moonlight.

Defense Attorney Lincoln produced an almanac conclusively proving that moonlight could not have given the witness the clarity alleged. Because the fact was so manifest, Lincoln felt confident moving for something called judicial notice.

Paraphrasing, judicial notice means an alleged fact is so indisputable and so driven by an authoritative source that the agent claiming the fact should bear no burden to actually prove it. This is a tool of judicial economy to give courts the latitude to save time and other resources by “taking notice” of a claim and accepting it as proven.

In the Armstrong trial, the claim of insufficient moonlight was taken as gospel by the court. Armstrong was promptly acquitted.

Fast forward 160 years and we can glimpse a day not long into the future when judicial notice might operate contrary to the legal interests of the chief executive.

Recent events make it quite likely that Donald J. Trump will face impeachment. And here we refer to actual, full-on impeachment proceedings … not of the “shame on you Bill Clinton for enjoying illicit oral sex” species, but of the “shame on you President X for we truly disapprove” species. Trump is likely to face a courtroom challenge to his presidency, because Heaven knows he won’t surrender short of the legal requirement to vacate office.

If, as seems likely, Trump is charged with election fraud, he could attempt to defend himself by claiming he’s an honest bloke. Here’s where judicial notice might visit darkly upon His Orangeness. An enterprising prosecutor could claim, with reasonable expectation of success, that Trump has proven himself dishonest by his many publicly documented lies. If the judge of record has a baseline endowment of testicular/ovarian fortitude, the argument will succeed and Trump will be doomed by judicial notice, the same tool employed by one of his forebears to exonerate a more anonymous and yet more substantive man. No matter what happens, Trump will misrepresent it until he no longer has access to a national megaphone.

And then Caesar will weep, for there will be no more pants to set alight.

William Sommers, hailing from Birmingham, is an independent author, satirist, and political commentator with an acutely diminished sense of self and a CV to match. He has no official writing credits aside from being a founding member of The Colosseum.

Manager, traveller, lawyer, pilot, retired military officer, family man, and perpetual student engaged in random acts of expression.

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