As the dust starts to settle on Trump’s conviction newly-minted status as an Outlaw President, legal scholars are starting to weigh in on the severe problems with Alvin Bragg’s case.
First up, Ed Whelan passes on this this piece by Mr. Elie Honig, explaining some of the problems with the conviction:
Trump's superpower is the ability to bring out the worst in both his supporters and his opponents. Bragg's prosecution sure strikes me as blatant example of latter, for reasons CNN senior legal analyst Elie Honig spells out in this powerful piece. https://t.co/y6CGA6Ald9
— Ed Whelan (@EdWhelanEPPC) May 31, 2024
It’s worth reading the whole thing, except that he takes too long to make the simple point that even if you think the jury was doing its best, they’ll rarely reach the correct conclusion when the trial is unfair and their instructions are awful. In other words, GIGO, which stands for ‘garbage in, garbage out’ or ‘bad inputs lead to bad outputs.’ Then he gets to problems in the trial and the first issue does seem like a big deal:
The judge donated money – a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind – to a pro-Biden, anti-Trump political operation, including funds that the Judge earmarked for ‘resisting the Republican Party and Donald Trump’s radical right-wing legacy.’
That would be a violation of New York’s Code of Judicial Conduct. Specifically, it says:
(1) Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice. Prohibited political activity shall include: …
(h) soliciting funds for, paying an assessment to, or making a contribution to a political organization or candidate ...
So, he isn’t supposed to engage in political activity, which includes even giving a penny to a political campaign, and he gave money both to Biden and to an anti-Trump group. So, apparently, this judge felt so passionate about defeating Trump in 2020 that he not only gave to the cause, but did so in violation of a bright-line rule. That absolutely should have led to Merchan’s recusal, since the same code of judicial conduct—which is binding on him—says, like most such codes of conduct that ‘A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.’
As we said before when discussing the issue of whether or not Alito had to recuse himself:
[The rule is interpreted] from a perspective of a person who knows all pertinent facts, who is fair, but the only requirement is doubt, not an actual proof of bias.
Based on Merchan’s apparent passion to defeat Trump in 2020—so much so that he risked discipline to do it—we don’t see how he could have continued in this case.
Next, Mr. Honig gets into how Alvin Bragg actually ran on prosecuting Trump—something the left has recently tried to rewrite history on—and then gets to the substance of the charge:
Most importantly, the DA’s charges against Trump push the outer boundaries of the law and due process.
This would run right smack into a rule in New York—and many other jurisdictions—called lenity. The rule of lenity—often called the doctrine of lenity—is a rule of statutory interpretation that says ‘if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted.’ Thus if Merchan risked making an error in his interpretation of any law, he was supposed to have erred in Trump’s favor. Merchan didn’t do that.
Recommended
Then Honig gets into just how unique these charges were, giving rise to the belief that this was designed to get Trump:
The District Attorney’s press office and its flaks often proclaim that falsification of business records charges are ‘commonplace’ and, indeed, the office’s ‘bread and butter.’ That’s true only if you draw definitional lines so broad as to render them meaningless. Of course the DA charges falsification quite frequently; virtually any fraud case involves some sort of fake documentation.
But when you impose meaningful search parameters, the truth emerges: the charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor – in New York, or Wyoming, or anywhere – has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge. …
In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else.
In other words, this looks a lot like the Al Capone situation. As you will recall, everyone knew Al Capone was a murderous gangster. But they didn’t convict Capone of any of the normal crimes related to his gangster empire: murder, assault, illegal import of liquor and so on. For various reasons, they were having trouble getting him on those kinds of charges—including issues like local corruption, witness and jury tampering and intimidation and the like. No, they got him on a failure to pay his taxes, but we all know the case wasn’t really about his taxes: It was about something else, that ‘something else’ being him being a gangster. And this reinforces the suspicion that Bragg didn’t go after Trump for anything proven in this case, but for ‘something else.’ Except this time that ‘something else’ seems to be something like ‘running for president as a Republican.’
This view was echoed by ABC News’s chief legal analyst:
ABC's chief legal analyst says Alvin Bragg should have never prosecuted President Trump with this nonsense case. pic.twitter.com/ahvOtSM3q5
— MAGA War Room (@MAGAIncWarRoom) June 2, 2024
Indeed, another New Yorker also allegedly falsified business records and oddly she wasn’t charged with the same crime:
THE BUSINESS RECORDS DOUBLE STANDARD
— David Sacks (@DavidSacks) June 1, 2024
In 2016, Hillary Clinton’s campaign was fined $8,000 for violating federal campaign finance laws. Why? Her team falsely reported the funding of the Steele Dossier as “legal services” and “legal and compliance consulting.”
Actually this… pic.twitter.com/Fw5cYtSkey
The cut off text reads:
Actually this ‘opposition research’ was an attempt to smear her opponent with false and salacious allegations. Obviously, it was also intended to influence the 2016 election.
Moreover, Hillary’s campaign was headquartered in New York State (out of Brooklyn, NY), which would make it fall under the jurisdiction of New York Penal Law §175.10, the state law which makes it a felony to falsify business records with the intent to conceal the commission of a crime.
What is the key distinction between Hillary’s campaign violation versus recent news?
With Hillary’s violation, there wasn’t a Manhattan prosecutor politically motivated to bring an unprecedented case to trial.
And if you think that is outrageous, get a load of this:
This is Gary Gensler
— Jack Poso 🇺🇸 (@JackPosobiec) June 1, 2024
He was the Hillary official who oversaw filing payments for the fake Steele Dossier as 'legal expenses'
He is now the Chairman of the SEC pic.twitter.com/RwT6eT5f6V
The cut off text says: ‘He is now the Chairman of the SEC.’
Their brazen corruption is right in your face https://t.co/5U6t48qFs7
— Monica Crowley (@MonicaCrowley) June 1, 2024
Honig also touches on Trump’s Sixth Amendment right to know about the nature of the charges against him:
So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) –and to electroshock them back to life within the longer felony statute of limitations – the DA alleged that the falsification of business records was committed ‘with intent to commit another crime.’ Here, according to prosecutors, the ‘another crime’ is a New York state election law violation, which in turn incorporates three separate ‘unlawful means’: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were – and the judge declined to force them to pony up – until right before closing arguments. So much for the Constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)
That’s one learned perspective, but that isn’t the only one. We also get this:
President Donald Trump's Manhattan Convictions are Unconstitutional — thoughtful analysis by Calabresi regarding a SCOTUS appeal. https://t.co/OkgqhtTRyc
— Harmeet K. Dhillon (@pnjaban) June 2, 2024
If you follow the link, you will find a piece at the Volokh Conspiracy entitled ‘President Donald Trump's Manhattan Convictions are Unconstitutional’ by Steven Calabresi. As regular readers probably recall, when we discussed the possibility of jury nullification in this case, we pointed out that the very idea of treating Stormy Daniels’ expression—or non-expression—as the equivalent of a campaign expense ‘runs straight into the teeth of another Supreme Court decision … Citizens United v. Federal Election Com'n, 558 U.S. 310 (2010).’ Well, Mr. Calabresi hits on pretty much the same point, writing:
In 2010, in Citizens United v. Federal Election Commission, 558 U.S. 310, the Supreme Court held 5 to 4 that the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by closely allied corporations and groups like The Trump Organization. Under Citizens United, it was perfectly legal for The Trump Organization to pay Daniels $130,000 in hush money to conceal her alleged affair with Donald Trump.
As we pointed out, many people falsely claim that Citizens United held that money is a form of speech. That had actually been the law since the 1970’s. The McCain Feingold campaign finance statute was actually based on the opposite premise that speech is the equivalent of money and therefore political speech could be regulated like political money.
Consider how dangerous that would be if the rule prevailed. The Supreme Court has long said that your ability to contribute to a candidate can be limited. Currently that limit is $3,300 per individual per election. So, imagine if the government could tell you that you can only say things that support the election of Trump up to whatever counts as $3,300 worth of positive support and not a word more? Simply put, that is not how the First Amendment works. And, thankfully, in Citizens United the Supreme Court wholesale rejected that approach. Calabresi goes on:
The First Amendment Freedom of Speech Clause also rules out of order Alvin Bragg's argument that Trump defrauded American voters by preventing them from hearing about Trump's affair with Stormy Daniels. Theories as broad as this one is, of ‘defrauding voters’ would end up eliminating the freedom of speech in American elections.
Indeed, consider how often other candidates have lied to voters. Does anyone remember when Obama said that, ‘If you like your health care plan, you can keep it?’ That was Politifact’s lie of the year in 2013, but no one ever charged Obama with a crime—nor should they. Or how about when Bill Clinton continually insisted that somewhere in the U.S. Code there was a ‘gun show loophole.’ That is a lie that is still repeated, but somehow Bill Clinton never saw the inside of a prison.
But in addition to that First Amendment problem, there is another that comes with the claim that Trump filed false tax forms: The prosecutors admit that there was no harm.
here's the part of the prosecution's closing argument where they admit Trump would've paid more taxes b/c of his 'improper accounting'
— Gregg Re (@gregg_re) May 31, 2024
but they argued this is still tax fraud, even though he *overpaid*. and that elevates the 'business records' case to a felony!
"IT'S A CRIME… pic.twitter.com/4EETkDXvn8
The cut off text reads:
"IT'S A CRIME TO PREPARE FALSE TAX DOCUMENTS, EVEN WHEN DOING SO DOES NOT RESULT IN UNDERPAYMENT OF TAXES"
unbelievable
That runs smack into the Supreme Court’s precedent in US v. Alvarez, 567 U.S. 709 (2012), often called the Stolen Valor case. In that case, Xavier Alvarez falsely said that
I'm a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.
According to the Supreme Court, none of that was true. But crucially, his only purpose in saying this was apparently to gain false respect. But that was enough to get him charged with a crime under the Stolen Valor Act of 2005, and the Supreme Court said that this meant that this law was unconstitutional. Why?
Well, first, Justice Kennedy—writing for the majority—explains that there is no general exception to the First Amendment for lies. Yes, you can get in trouble, civilly or criminally for defamation, fraud or false advertisement and the like, but there just isn’t any rule under the First Amendment that says that lies are automatically deprived First Amendment protection. Instead, lies are only deprived of protection if they cause some legally cognizable harm. Why? Because our government cannot decide generally what truth is:
Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth. … Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out.
So, what is the harm to the government if Trump allegedly lied so that he had to pay more taxes than he normally would? The government didn’t have an interest in forcing Trump to make the disclosures on his tax forms just to keep surveillance on him. It’s purpose was to determine whether or not it was receiving every penny owed. So, a lie that causes him to appear to owe more money (assuming he was lying) does not cause any cognizable harm to the government. Or at least that is what we would argue if we were Trump’s lawyers.
Finally, we get the dependable Jonathan Turley:
The Hill is out with my column on some of the most compelling grounds for appeal after the Trump verdict. The Trump trial is a target-rich environment for an appeal, with multiple layers of reversible error. I divide them into four groups. https://t.co/Yi041tgkeo
— Jonathan Turley (@JonathanTurley) June 1, 2024
Of course, somehow they used the dippiest picture they could find for Trump to headline the article. We would assume that this choice was made by an editor, not Turley.
Moving on to Turley's article, right off the bat he says that Trump isn;t likely to win by claiming that the potential jury pool is too slanted against him. If we were presiding in the case, we would have still moved the case to the most Republican county in the state just so that ordinary Americans would be more willing to accept the verdict, but we tend to agree that no court will overturn the decision on those grounds.
As promised, though, Turley divides his analysis into four categories. The first is discussing the judge, and most of it is a rehash of Honig’s analysis—Turley referencing Honig by name. But we think it is significant that Turley not only says that there is a concern about the appearance of bias in the abstract ‘but a record of highly biased decisions’ too.
Likewise, his second category, the charges, mainly rehashes two issues. First, Bragg is using state law to enforce federal statutes, in instances where the Federal Government declined to prosecute Trump. Second, he gets in the Sixth Amendment violation of failing to notify Trump of the nature of the charges against him.
Then he gets to a problem a lot less attention had been paid to:
The Evidence
Judge Merchan allowed a torrent of immaterial and prejudicial evidence to be introduced into the trial by the prosecution. That included testimony from porn actress Stormy Daniels that went into details about having sex with Trump. She included a clear suggestion that Trump raped her. After this utterly disgraceful testimony, Merchan expressed regret but actually blamed the defense counsel, despite their prior objections to the testimony. He had previously chastised counsel for making continued objections, but now he criticized them for not continuing to make objections.
We wondered in a previous post why Trump’s lawyers didn’t object more during the State’s closing argument, writing:
And why aren't Trump’s lawyers objecting? We aren’t there, so we can’t say, but it might be that they feel that objecting too much is hurting them in the eyes of the jury, or perhaps even risks an nasty encounter with the judge that would hurt them more.
That would tend to support our second theory. Turley goes on:
Merchan was equally conflicted in his other orders. For example, he allowed the prosecutors to introduce the plea agreement of Michael Cohen to federal election violations as well as the non-prosecution agreement of David Pecker on such violations. However, it was allowed only for the purposes of credibility and context. He issued an instruction that the jury could not consider the plea or the agreement to establish or impute the guilt of Trump.
The prosecutors then proceeded to expressly state that it was ‘a fact’ that federal election violations occurred in this case and that Trump ordered those violations. They also solicited such statements from witnesses like Cohen. Merchan overruled the objections that the prosecutors were eviscerating his instruction. Merchan also barred the use of a legal expert, former FEC Chair Brad Smith, who was prepared to testify that such payments cannot be viewed as federal election violations and would not affect the election even if they were considered contributions, since they would not even have had to be reported until after the election.
Merchan is likely to be upheld in denying the expert, since the court retains the authority to state what the law is to the jury. The problem is that Merchan failed to do so. Worse still, he allowed the jury to hear the opposite in the repeated false claim that these payments were campaign contributions.
That expert that Merchan excluded was discussed in another piece, here.
Finally, Turley repeated the concern that the jury could have found Trump guilty without true unanimity:
Merchan allowed the jury to find that the secondary offense was any of the three vaguely defined options. Even on the jury form, they did not have to specify which of the crimes were found. Under Merchan’s instruction, the jury could have split 4-4-4 on what occurred in the case.
For our money, though, David Burge put it best:
I'm no fan of President McCrybaby, nor am I a legal scholar, but this kinda feels like some blow-up-in-your-face judicial Calvinball https://t.co/L8Cwzkj8bc
— David Burge (@iowahawkblog) May 29, 2024
We will have to use the term 'judicial Calvinball' in the future.
But ‘Shipwreckedcrew’ on Twitter had this additional thought:
Among all the screwed up jury instructions used by Judge Merchan in the Trump trial, one thing stands out to me:
The jury was told that ‘unlawful means’ needed to be used in ‘conspiracy’ to promote/prevent Trump's election.
The specific ‘unlawful means’ was where they could disagree, as long as they each of them were convinced as to one of the 3 options.
First, the ‘instructions’ for why those means were ‘unlawful’ were terrible.
But, more significantly, something is only ‘unlawful’ if the evidence presented proves that to be true ‘beyond a reasonable doubt.’
That's a bedrock foundation of criminal law.
NO WHERE in the jury instructions dealing with the three possible ‘unlawful means’ the jury was instructed on were they told that their decisions as to ‘unlawful means’ required ‘proof beyond a reasonable doubt’ as to such.
They were told ‘proof beyond a reasonable doubt’ about the falsifying records and about the ‘conspiracy to promote’ predicate crime, but NOT on the ‘unlawful means’ crime that made the conspiracy illegal.
Just a[n] amateurish s—t-show from start to finish.
(Curse word censored.) So, the jury might not have believed he committed any secondary offense beyond a reasonable doubt. And more than a few people argued that it was not an amateurish mistake, but an intentional one.
We think another baffling baffling part of Turley's reporting is that Merchan and the prosecution didn’t ask the jury to at least specify how many jurors believed which secondary offenses occurred on the verdict form. If the jury came back and indicated that they were actually, truly, unanimous, that would have been the end of any appeal on that topic—which would have benefitted the prosecution and promoted the efficiency of their courts.
And here’s where we disagree, to a degree, with Turley. He writes:
The Supreme Court has repeatedly emphasized that the requirement of unanimity in xxcriminal convictions is sacrosanct in our system. While there was unanimity that the business records were falsified to hide or further a second crime, there was no express finding of what that crime may have been. In some ways, Trump may have been fortunate by Merchan’s cavalier approach. Given that the jury convicted Trump across the board, they might have found all of three secondary crimes. The verdict form never asked for such specificity.
Now, most of what he says is right, but the first line ignores something basic. While the Supreme Court has held unanimity to be sacrosanct in our system, it was only in 2020 that the Supreme Court said that requirement of a unanimous jury found in the Sixth Amendment applied to the states. We discussed this issue before, but the Supreme Court has been selectively applying the Bill of Rights to the states for over a century and only in 2020 did they decide this unanimity requirement would apply to the states.
(If you want to understand how the heck the Supreme Court could think only parts of the Bill of Rights applies to the states, read here.)
The reason why we want to emphasize this is because there is some precedent in New York State court that allows for this kind of non-unanimity in New York criminal cases. But we are not aware of any of those precedents being re-examined in light of there now being a federal, constitutional right to unanimity. But that is what should happen: Courts should be asking 'now that this is a (federal) constitutional right, are we honoring it?'
Turley goes on, closing with an important point:
These are just a few of the appellate issues. There are other challenges, including but not limited to due process violations on the lack of specificity in the indictment, vagueness of the underlying state law and the lack of evidentiary foundation for key defenses like ‘the legitimate press function.’ They are the reason why many of us view this case is likely to be reversed in either the state or federal systems. None of that is likely to dampen the thrill in this kill in Manhattan.
But if Biden wins the election before this conviction is overturned, history’s judgment will be deafening.
We are not sure about ‘history’s judgment.’ Very often that translates to what historians say, and the list of historians is dominated by our college and university system, and we have seen what a bunch of lunatics they are in recent months.
But Turley is obliquely touching on yet another reason why We the People should not treat the conviction as a fact until Trump ends his appeals—which includes potentially seeking a habeas corpus in federal court and then climbing up the federal court system. How will you feel if we the voters collectively decide ‘we won’t vote for a convicted felon an outlaw for president’ only for that conviction to be overturned? You could end up with Biden getting a second term, when if voters understood that the conviction was obtained wrongfully, we might have the second term of Donald Trump. If we are going to allow for judicial interference in our elections, shouldn't we make sure they got it right?
In the end, this author isn’t going to let a little over a dozen New Yorkers (twelve jurors, a judge and who knows how many prosecutors) decide who he is going to vote for, for president, and we think you shouldn’t, either.
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