The NRA Fires a Shot

I’ve been following with interest the New York Attorney General’s lawsuit against the NRA. We are still early on in the litigation, so it is too early to comment on the strength of the case.

There was an oral argument on some preliminary motions today. What was said there gives me an opportunity to talk to my non-lawyer friends about what makes a strong or weak argument in court and why you may decide to raise a weak one.

In a motion to dismiss, the defendant attempts to show that there is no reasonable basis on which the plaintiff (or prosecutor) can prevail at trial. At the conclusion of a motion to dismiss argument, it is entirely appropriate to suggest to the judge that the lawsuit had no merit; it was “frivolous.” If the judge finds this to be correct, the court may do a number of things at the conclusion of the proceedings, such as assessing costs and attorney’s fees against the plaintiff.

In today’s oral argument, the NRA lawyer took a different tack. He suggested that the lawsuit “is 163 pages of corruption allegations against a political enemy.” This argument would be appropriate AFTER a dismissal had been granted, supported by evidence of course. At this stage of the proceedings, the argument has ZERO positive impact on his case as far as the judge is concerned.

If the argument is not going to help your case now, then why make it? You probably have guessed the answer. It energizes those who support his position, his base. By this evening, you’ll hear it as a sound bite on the news. Mission accomplished.

I bring this up now, because you will be seeing this approach of appealing to your base repeatedly in the coming months. If or when lawsuits are filed against Trump or the Trump organization for financial illegalities, I guarantee that the emphasis will not be on the legal one – that the proceedings are frivolous – but that these are allegations against a political enemy. And the true believers will buy it.

You heard it here first, folks.

(Update: the motion to dismiss was denied.)

[Written on January 21, 2021]