U.S. District Judge Lesley Brooks Wells has every right -- indeed a duty -- to demand that U.S. Rep. James A. Traficant Jr. conduct himself as a lawyer would when he's in the federal courthouse in Cleveland.
Traficant has chosen to act as his own lawyer in his conspiracy, bribery and racketeering trial for a variety of reasons. For one thing, it proved to be a winning strategy when Traficant was tried on bribery charges 19 years ago. But having made that choice, Traficant is obliged to school himself in the law and to follow the rules of the court.
Outside the courtroom, however, is a different matter. Efforts by the prosecution and the judge to gag Traficant are destined to fail on several levels.
Victimhood: For one thing, a gag order gives Traficant the opportunity to portray himself as the victim. It burnishes his image as one little guy fighting for his life against the Justice Department's bureaucracy and a federal judge's almost absolute power.
Film clips of him leaving the courthouse the other day carrying himself like a whipped puppy and telling reporters that he couldn't talk under orders of the judge were vintage Traficant. Prosecutors should get a copy of the tape and watch it every morning, because it is exactly the kind of performance they're likely to see in front of the jury every time they give Traficant a chance.
If anything, in the gilded courtroom of Judge Wells, the effect will be more to Traficant's advantage. He'll be sitting alone at his defense table in a rumpled suit, a box of papers at his side. The judge will be sitting above him at her ornate bench. And five or six well-dressed members of the prosecution team will be sitting across from him, their barrister's cases at their sides, their legal tablets laid out in front of them. It is just the scene Traficant wants engraved in the minds of the jurors.
Two more reasons: But gagging Traficant is not only bad strategy, it's wrong, and it's impossible.
It's wrong because we don't believe the rules of the court trump the First Amendment. Once Traficant is off the courthouse grounds, he still has a constitutional right to freedom of speech.
It's impossible because not only is Traficant a defendant, not only is he his own lawyer, he is a sitting congressman.
As such, he has the absolute right to go on the floor of Congress and say whatever he pleases. And the irony is this: If Traficant puts out the story that he's going to avail himself of that right because it's the only place in America where he can speak his mind, every network and every major newspaper in the nation will report on it.
By attempting to gag him, the court runs the risk of giving him the second biggest pulpit in the land.
Convicting Jim Traficant is not going to be easy. His first set of prosecutors found that out. They had a signed confession. They had tape recordings of Traficant talking about the bribes he took from some of the Mahoning Valley's most notorious mobsters. They had a package of bribe money.
And what did Traficant have? The last laugh.