“The Prosecution’s Story About Trump Featured Several Logically Impossible Claims,” reports Reason Magazine:
Last January, Manhattan District Attorney Alvin Bragg summed up his case against Donald Trump this way: “We allege falsification of business records to the end of keeping information away from the electorate. It’s an election interference case.”
That gloss made no sense, because the records at the center of the case—11 invoices, 11 checks, and 12 ledger entries that allegedly were aimed at disguising a hush-money reimbursement as payment for legal services—were produced after the 2016 presidential election. At that point, Michael Cohen, Trump’s lawyer, had already paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump, and Trump had already been elected. The prosecution’s case against Trump, which a jury found persuasive enough to convict him on all 34 counts yesterday, was peppered with temporal puzzles like this one.
A New York Times editorial concedes that “many experts” have “expressed skepticism about the significance of this case and its legal underpinnings, which employed an unusual legal theory to seek a felony charge for what is more commonly a misdemeanor.” Yet the Times also claims the jury found Trump “guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging.” How did records created in 2017 “prevent voters from learning” about the Daniels tryst before they cast their ballots the previous year?….
The Times also says the verdict “establishes that Mr. Trump committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election.” The verdict does not establish that. Trump was not charged with breaking the law by instructing Cohen to pay off Daniels. And while the contentious characterization of that payment as an illegal campaign contribution figured in one theory for treating the falsification charges as felonies rather than misdemeanors, the other two theories did not hinge on the assumption that the payoff was illegal.
Since the jurors were instructed that they did not need to settle on any particular theory, it is not clear that they unanimously accepted the idea that Trump “committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election.” That description, however, is consistent with the prosecution’s dubious “election fraud” narrative, which falsely implied that “hiding pertinent information about himself” was inherently criminal.
Although it seems clear that the jury accepted that narrative, even the prosecutors sometimes forgot what they claimed the case was about. They argued that Trump violated an obscure, rarely invoked state law by conspiring with Cohen to influence the presidential election “by unlawful means.” They further argued that Trump caused the falsification of business records with the intent of aiding or concealing that crime, which is the element that transformed the charges into felonies. But some versions of that theory were logically impossible.
According to one theory of “unlawful means,” Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. But since Cohen filed those allegedly fraudulent tax returns in 2018, after Trump had been president for more than a year, his misrepresentation could not possibly have helped Trump win the election.
Under another theory, Trump falsified business records to conceal the falsification of other business records, including the 1099-MISC forms in which the Trump Organization inaccurately described Cohen’s reimbursement as income. Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump’s victory.
These logical difficulties were just one of several reasons to question the prosecution’s case, which relied on convoluted theories involving interacting statutes and questionable assumptions about Trump’s knowledge and intent.
Moreover, there was no illegal campaign contribution to begin with, contrary to the impression that was left with the jurors: “Former Federal Elections Commissioner Brad Smith explains why the predicate offense underlying Trump’s NY indictment and conviction isn’t a crime. (Indeed, it would have been a crime to pay this [personal expense] out of campaign funds),” which is something Trump rightly did not do, notes James Copland, a legal analyst at the Manhattan Institute. Judge Merchan barred Smith from testifying about this basic reality at Trump’s trial, so the jury never learned this.
(Reason Magazine, which pointed out the logical impossibility of the prosecution’s case, is not a Republican publication — more of its staff voted for Obama than for his Republican opponent. The author of the Reason article is Jacob Sullum, who won the Keystone Press Award for investigative reporting in 1988, among other journalism awards. Reason’s Zach Weissmueller adds, “Critics are right to point out that the law was contorted to secure the Trump conviction for obvious political reasons. On the other hand, Republicans could simply not nominate the guy who paid hush money to a porn star….”).
Progressive-leaning New York Magazine features an article, “Prosecutors Got Trump — But They Also Contorted the Law.” It’s by a CNN senior legal analyst — and former colleague of the Manhattan prosecutor — who describes how the Trump conviction was a political hit job:
1. “The judge donated money… in plain violation of a rule prohibiting New York judges from making political donations—to a pro-Biden, anti-Trump political operation.”
2. Alvin Bragg boasted on the campaign trail in an overwhelmingly Democrat county, “It is a fact that I have sued Trump over 100 times.”
3. “Most importantly, the DA’s charges against Trump push the outer boundaries of the law and due process.”
4. “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.”
5. The DA inflated misdemeanors past the statute of limitations and “electroshocked them back to life” by alleging the falsification of business records was committed ‘with intent to commit another crime.’
6. “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.”
7. “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.”
8. “The Manhattan DA’s employees reportedly have called this the “Zombie Case” because of various legal infirmities, including its bizarre charging mechanism. But it’s better characterized as the Frankenstein Case, cobbled together with ill-fitting parts into an ugly, awkward, but more-or-less functioning contraption that just might ultimately turn on its creator.”
As an attorney who did not vote for Trump in either 2016 or 2020 notes, the Manhattan DA’s theory of what constitutes fraud against the government was so ridiculously overbroad that it would cover harmless acts that lead to you overpaying, rather than underpaying your taxes,. It would criminalize acts that don’t harm the government at all, and actually leave the state and federal governments better off, by increasing tax revenue.
As Bernard Stanford notes, the Manhattan prosecutor’s theory of what the law bans is so sweepingly broad that it also posits “that businesses in New York have a general duty to the STATE to maintain accurate business records, and any deliberately false record, even if internal and not presented to anyone else, is inherently a fraud against the state. This is the novel interpretation that is controversial and untested. It was raised in pre-trial motions and [Judge] Merchan ruled for the prosecution,” even though the prosecution’s theory was quite dubious.
As the Daily Caller notes,
Prior to the trial’s start, Trump’s attorneys fought to have Merchan recuse himself from the case, pointing to his daughter’s work running a political consulting firm that provides services to Democratic clients, including California Rep. Adam Schiff and the Senate Majority PAC. Those two Democratic clients have raised around $93 million in donations since they started referencing the case in fundraising emails, the New York Post reported in March.
Judge Merchan does not not appear to have been randomly assigned to the case, as court rules mandated. Judge Merchan’s jury instructions were favorable to the prosecution, not Trump. The judge excluded key evidence that Trump sought to introduce.
It is very suspicious that Judge Merchan, of all judges, ended up presiding over Trump’s trial. As a complaint filed about the case assignment to Judge Merchan noted, it was odd that Merchan — of all the many judges in Manhattan — was assigned to hear three successive Trump-related cases, with none of those cases being assigned to any of the other judges. The chances of that happening at random are less than 1 in 15,000, indicating that the assignment of the case to Judge Merchan was not, in fact, random, in violation of court rules. “There were at least two dozen sitting justices eligible to oversee the cases, but Merchan — an acting justice — was selected for all three related to the presumptive 2024 GOP nominee for president and his allies,” noted the New York Post.
