Jack Smith, Donald Trump, and the Kobayashi Maru

Every now and then I get to give the Kobayashi Maru speech to a young associate. There are two types of young associates: those who immediately know what I am talking about when I mention the Kobayashi Maru speech, and those who stand there, deeply concerned, wearing a tolerant-of-this-Boomer1 expression but completely mystified by the reference.

The Kobayashi Maru speech is about no-win scenarios. The life of the law is full of them. Good lawyers can often avoid them or mitigate their impact, or negotiate a resolution that makes them unnecessary, but can never completely eliminate them. Sometimes you are going to lose. Sometimes you KNOW you are going to lose. This concerns young associates. Ken, they say, we’re going to lose this motion. What am I supposed to do? The answer is that you prepare competently, advocate vigorously, and fight for your client’s rights. You act like you have a chance because the client needs you to do that and the system depends on you doing that. You act like you have a chance because doing a vigorous, competent job can preserve your client’s trust in you, ease the impact of a loss, and sometimes even achieve a seemingly impossible win.

I’ve been thinking about the Kobayashi Maru speech since Trump was indicted.

Yesterday, on our Emergent Situation Episode of Serious Trouble, Josh and I sparred a bit over the moral and political philosophy of Jack Smith’s decision to prosecute. I pointed out that the somewhat predictable assignment of the case to Judge Aileen Cannon — who proved herself to be an arguably lawless Trump partisan when she entertained his attempts to derail his own investigation — will make it extraordinarily difficult to convict him. If Judge Cannon presides over the case she can derail the prosecution in myriad ways, some of them unreviewable, if she wants to. Moreover, there’s reason to doubt that a Florida jury will convict Trump. Finally, and perhaps most importantly, striking Trump down with a federal indictment may make him more powerful than we can possibly imagine. Trump will use the prosecution to energize his base, propagandize “independents,” and fundraise from rubes. It’s very possible it will make it easier to win the Republican nomination and plausible it will help him win the Presidency, which he will use to pardon himself and further demolish the rule of law.

Does that ...