Former President Donald Trump’s legal fate is now in the hands of a
New York City jury. In my view, he should be acquitted on charges that
never should have been brought in the first place. Alternatively, a
hung jury would amount to a significant win for Trump. I fear, however,
that he will be convicted. These are Manhattanites in that jury room,
after all. They inhabit an island that overwhelmingly detests Donald
Trump as a political figure. For weeks, they’ve had prosecutors
bombarding them with a blizzard of unseemliness, all linked to a man who
most (if not all) of them likely despise. Perhaps some of them they’ll
have the integrity to ignore all the razzle-dazzle and sleight of hand,
focus the mountain of reasonable doubt that has been established, and
refuse to convict the defendant. Or perhaps they’ll determine that
they’ve seen enough sordid material to conclude Trump must be guilty of something, then rubber-stamp prosecutors’ cooked-up charges.
Conservative legal expert and longtime federal prosecutor Andy McCarthy, who has argued persuasively for acquittal, is predicting a conviction.
Why? Because the deck has been stacked by the prosecutors, by the
Biden donor judge who’s aided and abetted the prosecution at nearly
every turn, and in some ways, by Trump himself. McCarthy explains how
hardcore partisan Alvin Bragg and his fellow Democrat, Judge Merchan,
teamed up to rig the game:
Ordinarily, falsifying business records is a misdemeanor
under New York penal law. The statute that enhances the offense into a
felony requires proof of fraudulent intent to conceal “another crime.”
…[The indictment] put the defense on no notice of what “other crime”
Trump was alleged to have concealed…Bragg knew it would be
controversial to proclaim in clear terms the power and intention to
enforce federal law — against a defendant whom the federal agencies with
authority to prosecute investigated and as to whom they decided, for
sound legal reasons, not to bring charges. The failure to
provide a defendant with notice of the charges in the indictment
violates the federal Constitution — and it strongly suggests that the
grand jury did not find probable cause of the other crimes that Bragg
now alleges (there is no “other crime” pled in the indictment).
On this point, Merchan has aided and abetted Bragg, to the
point that it was not until summation, after six weeks of trial, that
state prosecutors were finally clear and full-throated in urging that
Trump should be convicted for violating federal law. That would be
astounding in any case but is mind-boggling in the first-ever criminal
prosecution of a former American president (who, not
coincidentally, is the Republican presidential nominee and thus Bragg’s
partisan political adversary). Without being limited to the charges in
the indictment, as prosecutors are supposed to be, they presented the
case to the jury as if the charge were conspiracy to influence the 2016 election by burying politically damaging information. To say that this conspiracy appears nowhere in the indictment does not explain the half of it. It is not a crime to conspire to influence an election unless one does so by unlawful means (that’s the afore-described New York misdemeanor), and there is nothing unlawful per se about burying politically damaging information.
That last point is where Trump’s role in his own potential conviction
comes in. It remains entirely possible that at least some of the jurors
will reject this outrageous case. That would be the fair and right
outcome, legally speaking, as well as the healthiest outcome for the
country, for reasons I’ll mention below. But if they hand down one or
more guilty verdicts, McCarthy writes
that the politically-motivated handcuffs Trump has placed on his own
defense team throughout these proceedings could prove to have played a
major role in that outcome:
Strategically speaking, Team Trump has presented one of the
most ill-conceived, self-destructive defenses I have ever seen in
decades of trying and analyzing criminal cases. The reason for this is
clear: Trump insisted that his lawyers subordinate his defense at trial
to the political narrative he wants to spin in the 2024 campaign. In
this instance, the legal and political strategies cannot be synced.
Hence, Trump is helping Bragg get his coveted convictions. Against the
weight of evidence and common sense, Trump insists on telling voters
that Stormy Daniels and Karen McDougal — respectively, the porn star and
Playboy model who quite credibly allege to have had flings with Trump
circa 2006 — are lying. But no one with even passing familiarity with
Trump’s combative and parsimonious nature would believe for a second (a)
that he would agree to pay $130,000 to Stormy and $150,000 to McDougal
if they were falsely claiming to have had affairs with him, or (b) that
Cohen would have paid Stormy, and Trump’s pal David Pecker would have
paid McDougal, unless Trump had green-lighted the payments and assured
them of repayment.
Since Trump knows that, if he acknowledges being complicit in the
payment arrangements, voters will conclude his denials of the affairs
are lies, Trump has decided he must distance himself from the NDA
payments. Politically speaking, this is dumb because voters long ago
made up their minds about Trump’s extramarital affairs, and if he
admitted them at this point, he’d merely be admitting what is notorious
and not credibly deniable. Legally speaking, Trump’s gambit is
disastrous. It makes no sense in a criminal courtroom for a defendant to
deny his complicity in legal conduct when there is daunting evidence
that he was complicit up to his neck. The prosecutors framed the case to
the jury as a criminal conspiracy to bury damaging information. That’s
not a crime, and NDAs are legal. But rather than go with that, his best
defense, Trump has acted guilty: As if a candidate’s suppression of
negative information, rather than routine, is criminally condemnable,
and as if the NDAs are radioactive — the diabolical compacts of
Cohen and Pecker from which he must stay a millions miles away (a
choice at which the evidence is having a hearty laugh). For Bragg, this is a gift from prosecutorial heaven.
Trump apparently decided that basically conceding that the affair
took place, and that the hush money was paid with his knowledge and
approval, would be politically damaging, or rob him of some veneer of
quasi-plausible deniablilty with voters and/or his family. So he seems
to have insisted that his attorneys maintain the charade. The problematic sex didn’t occur. The hush money payments weren’t made, then reimbursed, on Trump’s orders.
Candidly, I’m not sure a single person actually believes that. Yes,
that’s officially Trump’s on-the-record position, but it’s not credible.
So, as McCarthy points out, Trump is acting guilty by clinging
to what nearly all observers — including jurors, I’m confident — see as
a lie. But the sex, the payments, and the reimbursements were all legal.
They aren’t crimes. The straightest line between two points here, in
terms of a successful legal defense, would have been for Team Trump to
affirm, or at least not contest, the underlying acts (affair, payments),
then to argue vociferously, relentlessly, and correctly that none of the acts were illegal.
“Since the NDAs were legal, the reimbursement of Cohen was legal; ergo,
there was no rational reason, legally speaking, to deny it,” McCarthy
explains. However, there’s this:
Why deny the undeniable? Because Trump knows that admitting the
reimbursement is tantamount to admitting the sex with Stormy.
Politically, he resists doing that because he has always denied it and
can’t bring himself to concede error — not in the Trump DNA. But the
elevation of his political needs (or, better, his ill-considered
conception of them) has utterly undermined his defense…The roads
to American prisons are paved with what in the trade we call “false
exculpatory statements.” The reason is simple: People suspected of crime
don’t lie unless they are trying to cover up wrongdoing. By lying about
the reimbursement of Cohen, Team Trump gave immense help to the
prosecutors’ plan to convince the jury that scheming to suppress
politically damaging information is a crime. Why, the jury has
to be wondering, would Trump lie about something so stupid unless he was
worried about being implicated in “the conspiracy”?
Advertisement
It would be darkly ironic if a trial that has been entirely political
from the jump ended up going against Trump due to some of his own,
self-destructive political calculations. That said, even with Trump’s
self-serving and ill-advised machinations, he’s still not
guilty of the alleged ‘felonies’ charged. The way Alvin Bragg was able
to resurrect these lapsed misdemeanors (statues of limitations expired
years ago) and turn them into dozens of ‘felonies’ was by concocting a
conspiracy in which the bookkeeping mischaracterizations (it’s not even
clear to me who the victim of these supposed misdemeanors was) were
undertaken in pursuit of a separate and distinct crime. The Biden donor
judge allowed prosecutors to hide the ball on what that separate and
distinct crime was. They never fully identified it, and only
effectively let the cat out of the bag
during closing arguments, leaning hard into the notion that Trump
committed campaign finance-related crimes. This was presented to the
jury after the defense had rested, with no opportunity for rebuttal:
Astounding. And the Biden donor judge wouldn’t let the defense
question a top elections law expert regarding the law upon which the
prosecution is hanging its case (having declined to specify the critical
‘other crime’ until closing arguments, with no opportunity for
rebuttal): https://t.co/TEHFQgK6kr pic.twitter.com/Vn0hbFFPeS— Guy Benson (@guypbenson) May 28, 2024
McCarthy marvels, “the judge and prosecutors have led jurors to
believe that the violation of FECA is an established fact in the case.”
But this is most certainly not an established fact. Indeed, the judge would not allow
the defense to effectively question an expert witness who could have
offered compelling evidence — based on his former role running the
Federal Elections Commission — that Trump’s NDA and hush money gambit
was not a campaign finance violation. The so-called ‘second crime,’
which was never fully revealed to the defense or the jury, could very
well have imploded right there. But Merchan would not permit that
testimony, so a crucial defense witness was never called. Legal
experts, including several who are decidedly hostile to Trump, seem to
agree that it remains unclear whether the prosecution successfully
proved their untested legal theory in a way that was comprehensible, let
alone beyond a reasonable doubt:
It seems like he’s convinced that the (long lapsed) bookkeeping
misdemeanors have been proven, but is very shaky on how that translates
into proven felonies—which is…the entire case here? https://t.co/qqvHiRaz0P— Guy Benson (@guypbenson) May 29, 2024
On CNN, anchor Jake Tapper says to legal expert: ‘I don’t know that
they [prosecutors] have proved beyond a reasonable doubt…that Donald
Trump knew.” The legal expert responded: “They have not…that is, in
fact, reasonable doubt.”— Byron York (@ByronYork) May 28, 2024
CNN analyst on Trump trial: ‘The crime here is not easy to explain or
understand.’ MSNBC analyst: ‘It is difficult because it’s a very
nuanced argument…It’s never been prosecuted before.’— Byron York
(@ByronYork) May 28, 2024
As I said elsewhere,
you don’t have to be a MAGA hat wearing Trump fan to believe that if a
former president (and current leading candidate) is going to be
criminally prosecuted for the first time ever, the alleged crime should
be very clear — and the legal theory behind it should have been tried
before. In reality, the ‘felonies’ leveled against Trump are complex
and difficult to grasp, and the underlying legal theory is totally novel
and untested. This would be concerning-to-disturbing in any context.
It’s indefensible in a case involving the first-ever criminal
prosecution of a former American president, and a man who is one of two
people who will be elected in November. The facts here were reviewed by
Bragg’s predecessor, and by the Department of Justice, and by the FEC.
None of them pursued a prosecution — or even a civil case or fine, in
the case of the FEC.
But now a New York City jury could decide to convict Donald Trump
after a rabid partisan prosecutor overruled all of those previous
prudential judgments and presented a case (not coincidentally, in the
middle of an election cycle, years after the ostensible ‘crimes’) in
which the presiding judge — who donated to the political opponent of his defendant,
yet didn’t recuse himself — permitted prosecutors to basically do
whatever they wanted, while severely hemming in the defense. One of the
in-court prosecutors handling the case for Bragg, who’d been paid by the DNC
for ‘political consulting’ during Trump’s presidency, left the
third-ranking post within Biden’s Justice Department to help run this
circus. The Biden campaign held a bizarre and highly inappropriate event outside the courthouse just yesterday, which they’re now trying to pretend doesn’t count as a political or campaign event related to the trial.
Advertisement
Legal eagles from across the ideological spectrum seem to agree that
there are multiple, serious, glaring grounds for appeal in this case.
Imagine a scenario in which a conviction is choreographed by this
cabal, temporarily branding Trump a ‘convicted felon’ — which then
arguably costs him a close election, after which the conviction is overturned. I envisioned it on Fox yesterday, and consider it quite ominous:
I am genuinely concerned about a scenario in which a Trump conviction
is jerry-rigged by the partisan DA & judge, which then plausibly
tips a close election…*after* which the verdict is (quite likely)
overturned on appeal. We are already in a pretty unhealthy place as a
country. pic.twitter.com/AbVy7gVrFQ— Guy Benson (@guypbenson) May 29, 2024
I’ll leave you with this:
…Merchan just delivered the coup de grace instruction. He said that
there is no need to agree on what occurred. They can disagree on what
the crime was among the three choices. Thus, this means that they could
split 4-4-4 and he will still treat them as unanimous…— Jonathan Turley
(@JonathanTurley) May 29, 2024
Outrageous, farcical, insane. Pick your adjective. The judge
instructed the jurors that they don’t even have to agree upon what the
(unproven, unspecified, and even totally unexplored) ‘second crime’ is —
without which the lapsed bookkeeping misdemeanors cannot be
bootstrapped into felonies — in order to reach ‘unanimity’ for a
conviction. Surreal.
