It's not a Deluna dilemma- the type REGJB lawyers face in trial- but it is a dilemma nevertheless.
The landmark decision in DeLuna v. United States, 308 F.2d 140, 141 (5th Cir. 1962) announced the principle that an accused is entitled to a new trial where counsel for a co-defendant brings to the attention of the jury the fact that the accused did not testify. The rationale for the principle set forth in DeLuna is as follows:If comment on an accused's silence is improper for judge and prosecutor, it is because of the Effect on the jury, not just because the comment comes from representatives of the State. Indeed, the effect on the jury of comment by a co-defendant's attorney might be more Harmful than if it comes from judge or prosecutor. A judge, in keeping with his high degree of responsibility to conduct a fair trial, would be expected to give a balanced, moderate explanation of the inferences to be drawn from silence. Similarly, but to a lesser degree, a prosecutor would be expected to recognize his/her responsibility for fair comment. But much less restraint can be expected from an attorney to whom no little latitude is allowed when zeal, emotion, eloquence and the advocate's afflatus take hold of a jury argument. Thus it is the fact of comment rather than the source of comment that effects denial of the right to remain silent.
Any judge's want to comment on the DeLuna dilemma?
BACK TO THE SENATE:
There are one hundred senators in the Senate. The split is 52 republicans, 47 democrats and one cranky old guy from Maine who caucuses (literally "to eat for free with") with the Democrats.
Two fair-minded republican senators (Alaska and Maine) have indicated they will not vote for Betsy DeVo$, the trillionaire nominee for Secretary of Education (who famously testified that the solution to over-crowded schools is for more minority parents to get off their duffs and pay for private school).
That would put the vote for Devo$ at 50/50 requiring, as every County Court Judge in the REGJB knows- the tie breaking vote of VP Mike Pence ("Oh gooody! Finally something to do besides shaming women who get abortions").
BUT...and here's where it gets tricky- IF the Senate confirms Wild Bill Sessions for Attorney General BEFORE Devo$, then after careful numerical calculations done extensively by the President's son-in-law, there would be only 49 republican senators voting for DeVo$ and 50 Senators voting against and the nomination would Fail. Not win. And Trump always wins- except when sending Seals to raid Somalia.
Each senator represents one percent of the senate. Thus- to get DeVo$ in Education, Sessions has to stay in the senate- at least a little while longer. That is the one percent solution. And that can't be a bad thing for Justice.
It's a real headache. Enough, if you're President, to make you want to chew-out the leader of Portugal, or Granada.
See You in court, where we love DeLuna dilemmas.