Salvo 06.03.2024 10 minutes

Reversible Errors

President Trump Holds A Press Conference At Trump Tower Day After Guilty Verdict

Prosecutor Alvin Bragg and Judge Juan Merchan have reached the pinnacle of selective prosecution and evisceration of due process.

Following Donald Trump’s conviction in New York—for allegedly causing 34 incorrect purpose tags to be entered in the Trump Organization’s private, internal account register with an intent to defraud and unlawfully interfere in the 2016 presidential election—Manhattan District Attorney Alvin Bragg took a victory lap. He calmly explained that the trial was an ordinary example of what his office does every day, without “fear or favor,” and had simply done its job. Bragg lied.

Bragg ran for office on the promise he would get Trump. To do so, Bragg charged him with a low-level misdemeanor, for which the statute of limitations had already run, alleging that the Trump Organization “falsely” recorded $430,000 of payments to Trump attorney Michael Cohen in its accounts as “legal fees” or “legal expenses” rather than as “hush payments” or “repayment of hush payments.” Then he added 33 counts by separately charging each entry. Finally, he revived the statute of limitations and upped the potential crime to a Class E felony (the lowest of New York’s five felony classes) by alleging that Trump had “falsified” these business records with the intent to “commit another crime.” The indictment did not disclose that crime.

The prosecution later informed the defense that the other crime would include a violation of Section 17-152 of New York State Election Law, a misdemeanor whose statute of limitations also had expired. Article 175.10 of New York State’s Penal Law does in fact provide that combining the misdemeanor of falsifying records with an intent to commit another misdemeanor is sufficient to raise the crime to a Class E felony, extend the statute of limitations, and increase the penalties.

Section 17-152 provides that “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” The prosecution declined to disclose the “unlawful means” they were alleging and claimed they were not required to do so. During the trial, the prosecution talked about a criminal scheme to “corrupt” the 2016 presidential election, but carefully avoided calling it “fraud.” Fraud in a presidential election is a federal crime, beyond the jurisdiction of local prosecutors. Federal prosecutors previously concluded that no election crime occurred, and even Bragg had balked at prosecuting Trump until liberals berated him into doing so.

Legal experts have been unable to find even one example of another New Yorker indicted under Article 175 for mislabeling its private, internal accounts, or anyone anywhere tried by a state prosecutor for violating federal election law.

In violation of New York ethics rules, trial court Judge Juan Merchan donated money to “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” It wasn’t a lot of money, just enough to make his views known. His daughter is a Democratic political operative. Whether through secret coordination or common purpose, Bragg’s prosecution team, led by Matthew Colangelo—until recently the third ranking lawyer in Biden’s Justice Department—collaborated with Merchan to bring about an unprecedented violation of due process for the purpose of interfering in the 2024 presidential election.

This essay has nothing to with Donald Trump, or what anyone thinks of him. It is about an attack on the core of the American justice system. Some refer to the trial as “rigged” or a “kangaroo court.” To me, it was a Star Chamber, akin to a pre-determined Soviet or Putin political prosecution.

There is no indication that the jurors failed to follow their oaths. Sadly, they were useful idiots. Duped. Props in a Kabuki dance choreographed by the prosecution and judge. Merchan violated his sworn duty to protect the rights of the defendant in a criminal trial, and in a coup de grâce delivered jury instructions and a verdict form that virtually ensured conviction. As added protection, he gave the jurors a week off before deliberating so they could hear from their families, friends, and news media about how important it was to democracy that Trump be convicted.

The trial focused on testimony about Trump’s lawful, if salacious, behavior in allegedly having sex in 2006 with porn actress Stormy Daniels and former Playboy model Karen McDougal, and then paying or knowing about payments to buy their silence. There was conflicting testimony about whether Trump’s motivations were to protect his wife, or benefit his campaign, though the gravamen of the prosecution’s case was that these lawful actions somehow improperly influenced the 2016 election. Only convicted and inveterate liar Michael Cohen testified that Trump knew what was entered in the Trump account register.

Former Trump fixer Cohen, who pled guilty to an election law violation to curry favor with federal prosecutors, and former American Media Inc. President David Pecker, whose company signed a non-prosecution agreement admitting election law violations to curry favor with federal prosecutors and facilitate its sale, each testified that Trump had violated federal election law. Cohen supposedly violated election law by paying Daniels for her silence, and Pecker by paying McDougal to write articles for AMI-owned National Enquirer that were never published. Under prosecutors’ questioning, both Cohen and Daniels purported to educate the jury about federal election law, an arcane subject about which neither appears to know very much. In reality, neither was guilty of violating election law, because their payments were not campaign contributions.

Finally, after the defense rested, the prosecution began to identify to Merchan, as part of the process of drafting jury instructions, the specific predicate crimes they alleged formed the “unlawful means” under Section 17-152. In their closing arguments, after the defense had no further opportunity to address the jury, prosecutors for the first time explained their theory that Trump violated Section 17-152 in three ways: (1) by violating federal election laws, (2) by providing incorrect tax information, even if it did not reduce his taxes, and (3) by falsifying some of the records that formed the basis of the initial counts.

Typically, a defendant appeals errors made in a state criminal trial through that state’s appeal process. Here, it is possible the U.S. Supreme Court might accept an appeal on the grounds that Trump’s conviction improperly interferes in the 2024 election. The likelihood of that is low, unless at the sentencing hearing on July 11 Merchan imposes significant restrictions on Trump’s movements or speech and refuses to stay the restrictions pending Trump’s appeal to the New York appellate court. I don’t expect Merchan to do that. Instead, I expect that Trump’s appeal likely will be heard after the election within the New York court system.

I believe it is very likely that Trump’s conviction will be overturned on the basis of reversible errors. While I have tried cases in federal and state courts, including in New York, I also considered the views of experts I respect, including Andrew McCarthy, Jonathan Turley, and John Yoo. There may be evidence or testimony of which I am unaware. However, based on the information available to me, I believe the reversible errors include:

1. The Sixth Amendment to the federal Constitution and Article III, §16 of the New York Constitution require that a defendant receive adequate notice of the crimes being charged so that he can prepare a defense. Waiting until the last hours of a case, after the defense has rested, or has no further right to speak to the jury, cannot satisfy this fundamental protection. The prosecution may argue that it provided a general statement of its direction and its intention to rely on Section 17-152, even if it declined to disclose the predicate crimes on which it would rely. That is unlikely to satisfy the Sixth Amendment or Article II, §16.

2. Merchan instructed the jurors that they did not have to unanimously agree on what Trump had done to violate Section 17-152. Instead, he said that if all 12 jurors concluded Trump had committed any of the three possible crimes cited by the prosecution, that would be sufficient. New York rules and the U.S. Supreme Court’s holding in Ramos v. Louisiana (2020) require a unanimous verdict for a felony. While playing lip service to this requirement, Merchan broke new ground apparently on the premise that the defendant is not entitled to due process regarding the State’s burden in proving the specific predicate crime(s) that violate Section 17-152.

3. The verdict form conspicuously omits any information about the three potential predicate crimes. I believe the information was omitted because the prosecution’s case only supported (weakly) conviction for alleged violations of federal election law, and Bragg has no jurisdiction to obtain a conviction based on federal election law.

4. Bragg also lacks jurisdiction to prosecute federal tax crimes and never gave the defense notice it was charging Trump with committing a federal or state tax crime. There has been no reporting that the prosecution introduced evidence that Trump provided incorrect information to any taxing authority. The alleged false records were internal Trump Organization records.

5. As a matter of law, the same allegedly incorrect records used for the initial misdemeanor cannot also constitute the second crime.

6. As Merchan agreed, Cohen’s guilty plea to election law violations, and AMI’s non-prosecution agreement, could not be introduced as evidence of Trump’s guilt. Merchan made a mockery of this requirement by allowing the prosecution to introduce both in order to impeach Cohen’s and Pecker’s credibility—a nonsensical ruling since the prosecution would not impeach its own witnesses. The defense, which might have an interest in doing so, objected to admitting the information.

7. Prosecutors were permitted to elicit testimony from Cohen and Pecker that they had violated election law by making payments to Daniels and McDougal, though neither is an election law expert. When the defense sought to allow former Federal Elections Commission (FEC) Chairman Bradley Smith to explain the relevant election law, Merchan prohibited him from doing so, thereby excluding key exculpatory evidence and utterly failing in his duty to protect the defendant.

8. During closing arguments, Prosecutor Joshua Steinglass said that the election law violations to which Cohen pled guilty were committed at Trump’s direction and for his benefit. Merchan permitted this, and took the final step to gut his instruction that Cohen’s guilty plea was not evidence of Trump’s guilt by characterizing Cohen as Trump’s “accomplice.” However, Cohen did not commit an election law violation, and the indictment did not include a conspiracy allegation, which is found in the later-disclosed Section 17-152. Further, to obtain a conviction of federal election law, it must be proven that the defendant acted willfully. No evidence was introduced at trial that Trump even thought about election laws, and Merchan’s jury instructions did not describe the “willful” requirement.

9. In New York criminal trials, relevant evidence may be excluded if its probative value is merely outweighed by the danger of prejudice, without even the typical requirement that the danger be “substantial.”

10. As a matter of law, none of Trump’s alleged affairs, payments to Daniels and McDougal, the NDAs, or the payment for unpublished articles are unlawful. Testimony relating to the foregoing was intended to embarrass and prejudice Trump and had no probative value. Daniels further testified that her alleged sex with Trump was possibly non-consensual. That assertion is inconsistent with years of Daniels’ interviews on the subject, is irrelevant to the alleged crimes, and is so highly prejudicial that the defense moved for a mistrial. Though Merchan rejected the motion, he acknowledged that Daniels had gone too far in her testimony.

Pecker’s testimony had no probative value on crimes within Bragg’s jurisdiction and was highly prejudicial because it questioned Trump’s principles regarding marriage and sexual partners.

11. Merchan instructed the jury that, in order to prove an intent to defraud, the state does not have to prove that Trump acted with the intent to defraud any particular person or entity, and that it would be sufficient if Trump had a general intent to defraud the voting public. Although there is limited caselaw in New York that supports this formulation for monetary fraud, New York has consistently refused to extend other frauds to include a general fraud on the public.

12. As a matter of law, these business entries could not have formed the basis for an election fraud in 2016 because the undisputed evidence is that FEC reports based on the payments, if any, were due to be published in 2017, after the election.

13. There is a reasonable argument that, as a matter of law, the business entries were not false. Not only did Cohen render legal services for the Trump Organization during the relevant period, but total payments to Cohen were considerably more than the $130,000 he paid to Daniels.

These errors, along with others, go to the heart of the case. Bragg set out to get Trump. Merchan put his full weight on the scale to ensure the outcome. A new Reuters/Ipsos poll following Trump’s conviction found a net loss of support for the former president that could sink his election prospects, regardless of whether his conviction is overturned years from now.

In 2016, Hillary Clinton directed the creation of the fraudulent Steele dossier. In 2020, the Biden campaign lied about and assisted in suppressing Hunter Biden’s laptop, and defrauded voters by soliciting intelligence officials to falsely claim it was Russian disinformation. In 2024, the administration is engaged in widespread lawfare against Trump and his allies. Clearly, Democrats are far better at weaponizing the justice system, media, and Deep State than the Republicans are at preventing them from doing so. The outcome is destroying the American justice system.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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