Below is my column on the completion of the testimony of Stormy Daniels and the start of the testimony of Michael Cohen. With a dubious legal theory, the testimony has only magnified the criticism of the prosecution as parading sensational rather than material evidence before the jury and the public. Manhattan District Attorney Alvin Bragg is losing even CNN hosts and legal analysts. Fareed Zakaria noted “I doubt the New York indictment would have been brought against a defendant whose name was not Donald Trump” Elie Honig has observed that, if brought in a less Democratic district, “I would say there’s no chance of a conviction.” The Bragg case was never “normal” but last week it seemed to go paranormal.
Here is the column:
“I see dead people.” Before this week, that claim was most associated with the nine-year-old character Cole Sear from the 1999 film “The Sixth Sense.” But now it is one of the talents claimed by former adult film actress Stormy Daniels in her bizarre testimony in Manhattan during former President Donald Trump’s trial.
It turns out that speaking to the dead was one of the few relevant things Daniels had to offer in the case, which is now on a collision course with a motion for acquittal before the case even goes to the jury.
The Daniels testimony will live in infamy in the annals of criminal justice. For two days, she offered lurid and completely irrelevant details whose only possible purpose was to humiliate Trump. Admitting that she was coached by the prosecution in her testimony, it was clear that she was there not to win a case but to win an election. Judge Juan Merchan allowed this legal burlesque to unfold in his courtroom, later blaming defense counsel who had vociferously objected to her appearance and the scope of the examination.
The cross examination was devastating. It shattered her laughable claim that she had not really been seeking money in shaking Trump down for a non-disclosure agreement, a claim contradicted by her own former lawyer. Daniels also revealed that she had spoken with the dead, and that a ghost had once held her boyfriend under water in a bathtub. She also said that she lived in a haunted house, only to discover later that the spirit haunting it was actually a large possum.
In a case based on a dead misdemeanor and a rapidly falling heart rate on the manufactured felony, one can understand the appeal of witnesses who can speak for the dead. Indeed, Daniels’s graphic testimony may prove the moral high point of this trial, since serial perjurer and disbarred attorney Michael Cohen is scheduled to testify Monday.
Cohen recently broke his pledge, midway through the trial, to stop attacking and taunting Trump. Cohen has insisted that he deserves the protection of the gag order by Judge Merchan as a witness, despite serious constitutional concerns. Merchan continues to threaten Trump with jail if he responds to Cohen’s unrelenting attacks. Merchan waited for the weekend before his testimony to suggest that the prosecutors tell Cohen to stop the public antics.
But it remains unclear what the order is protecting Cohen from. Not only is he trolling for money on social media with reference to the trial, but he is also widely being attacked by others. It is only Trump who cannot address his attacks, including political opposition to his campaign.
Cohen’s testimony will be the culmination of this travesty of a trial. But Bragg already jumped the shark with Daniels. After three weeks, legal experts are still debating what the crime was that Trump was seeking to conceal by recording payments for a standard non-disclosure agreement as a legal expense. (That is the same characterization used by Hillary Clinton’s campaign for its funding for the infamous Steele dossier.)
It is still unclear that Trump even knew how the payments were characterized, and the alleged false record was not even created until after the election was over. Yet he stands accused of using the “false business records” to somehow steal or rig an election that was already over.
After this circus with Cohen is complete, Trump will be allowed to testify. He would be insane to do so. Merchan has already said that he will allow a broad scope to cross-examination, making any appearance unlikely.
That is when Merchan will face a key test of judicial ethics. He has failed to protect the rights of the defendant from a baseless, politically motivated prosecution. He could insist that he simply felt Bragg had a right to present his case. He will soon be done and, as expected, it is entirely based on Cohen, a disbarred perjurer who will ask for his former client to be sent to prison for following his own legal advice.
After Bragg closes the prosecution’s case, the defense will make a standard motion for dismissal. Merchan should grant that motion.
There has been no showing of an actual crime, let alone a clear record tying Trump to key decisions or actions.
Merchan will then have to decide whether he has the courage that Bragg lacked. Bragg knew that this case was ridiculous. The Justice Department had declined any prosecution for a federal campaign finance violation, the theory referenced in the case. Indeed, it did not even seek a civil fine over the payments. Bragg’s predecessor had also rejected the prosecution.
When Bragg took over, he similarly balked and stopped the move toward an indictment. But two prosecutors in his office, Carey R. Dunne and Mark F. Pomerantz, then resigned and started a public pressure campaign to get New Yorkers to demand prosecution.
Pomerantz went even further and took an action that some of us viewed as deeply unethical and unprofessional. Over the objections of his own former office and colleagues, he published a book on the case against Trump — then still under investigation and not charged, let alone convicted. It was a pressure campaign directed at Bragg. In New York, Bragg knew that he would either have to indict Trump or forget about reelection.
Merchan will now have to make the same choice in yielding to politics or principle…or to the paranormal. He has already allowed every effort to bring this dead misdemeanor back to life. But even Stormy Daniels may not be able to serve as Merchan’s medium in reaching back eight years.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
The gag order on Trump is election interference. He is unable to defend himself as Cohen lies repeatedly against him, and Stormy Daniels changes her story over and over.
Juan “The Con” Merchan isn’t stupid. He knows that if he doesn’t guide, and effectively instruct, the jury to find Trump guilty of some manufactured crime or another that Loren Merchan and her funders will be severely dissapppointed. So, millions and millions of dollars are at stake. This renders a directed verdict favoring Trump impossible.
The jury members know it’s their job to convict Trump of whatever Alvin Bragg tells them to convict him of. The jury knows it must obey or there will be severe consequences. They could be harrassed for decades and decades if not the remainder of their lives by the Deep State. Word would quickly circulate that “this is the juror who held out” of “this is the juror who failed to convict Trump as instructed.” Death threats will follow them whevever they go. So, a guilty verdict of whatever manufactured “crime” is alleged is a fait accompli.
Plus, in addition to making his daughter Loren Merchan a very wealthy woman, Juan “The Con” Merchan can also look forward to a well-funded retirement, thanks to a numbered Swiss bank account waiting for him to use at the safe, right moment with a wink and a nod.
I agree with you Professor on the general tenor and silliness of this trial. But, I have to question your comment re Daniels “admitted she was coached by the prosecution”. What witness isn’t coached by the side offering the testimony?
“I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”
– Japanese Admiral Isoroku Yamamoto
___________________________________________
Exactly how long will actual Americans slumber and allow their progeny to be brainwashed, propagandized, and indoctrinated by inimical anti-American communists and their nation to be totally subsumed and razed by parasitic banana republicans who, incidentally, were not even admitted to become citizens by the American Founders and Framers?
I couldn’t care less that Trumpsters are treating this trial as if there’s no crime and it’s an outrage. It’s how the Sinaloa Cartel treats every case against them. Crybabies.
You’re a reality denier. Has it ever occurred to you that you could be wrong? Even if only a tiny fraction of what Trump’s supporters say about Biden family corruption is true and the charges against Trump are all politically motivated and being prosecuted by the same cabal of corrupt politicians and corrupt government bureaucrats that spied on Trump, falsely accused him of cheating with Russia to steal the 2016 election, and who suppressed negative news about Biden while spreading smears against Trump.
So everyone she saw was a stiff?
Jonathan: This has to be one of the top ten hits of all your columns–“hit jobs” I mean. Because it’s probably your only chance to weigh in on one DJT’s criminal trials–the only trial probably to be completed before the Nov. election. So you have thrown everything against the wall hoping something will stick.
First, it’s Stormy Daniels testimony you claim will “live in infamy”. FDR coined the phrase about the attack on Pearl Harbor. Hardly a good comparison to steal FDR’s phrase. You claim SD “offered lurid and completely irrelevant details whose only purpose was to humiliate Trump”. We already know all the “lurid details” from SD’s public statements and the documentary to know more than we ever wanted to know about DJT’s extra-marital sex life.
There was a reason the prosecutors called SD to testify. DJT and his attorneys have attacked the credibility of SD. DJT has continued to claim he never had sex with “horseface”. SD had to testify to put that lie to rest–and she did it by describing in minute detail everything that happened in SJT’s penthouse suite. SD was there not to “humiliate” DJT but to put the record straight. And, no, the cross of SD was not “devastating”. The cross failed to contradict any of SD’s testimony on direct. I think the jury will find SD a credible witness.
Then you turn to Justice Merchan–describing his handling of the trial as “legal burlesque”. Before SD was to testify DJT’s attorneys objected unsuccessfully to her taking the stand. Merchan agreed that SD’s credibility was an issue. When SD did testify that was another opportunity for his attorneys to object. They raised not one objection. But at the end of SD’s testimony DJT’s attorneys asked Merchan for a mistrial. That motion was properly denied by Merchan.
As to Michael Cohen’s testimony this week you claim it will be the “culmination of this travesty of a trial”. Really? Why do you think DA Bragg is putting on Cohen toward the end of the trial and not at the beginning? That’s because Cohen comes with his own baggage. He lied before Congress to coverup for DJT’s crimes, went to prison and lost his law license. Because of this will a jury still find Cohen credible? I think so. That’s because Cohen’s testimony is corroboration of every bit of witness testimony and documentary presented during the first four weeks of trial. He has no reason to lie now. But you are right on one thing. DJT would be “insane” to testify. He has no credibility and if he did testify he would have to lie again–exposing him to perjury charges.
Well, you have given your best shot on why you think this trial is a “politically motivated prosecution”. In the end it will be up to 12 ordinary citizens, not you, to decide DJT’s guilt or innocence. That’s the genius of our criminal justice system so crucial to the fair administration of justice. Juries get to decide–not the musings of arm chair “legal scholars”.
I notice that you avoid the issues of statutory limitations on the misdemeanor, conversion of the misdemeanor into an unspecified felony, ex-post-facto commission of the “offense,” not to mention any number of highly prejudicial and inflammatory statements by AKA Stormy Daniels that have nothing to do with the indictment. If this is New York justice, I would advise my clients to avoid the state. What is so obvious to outsiders is the use of a selective venue hostile to the defendant, selective prosecution based upon the political profile of the defendant, oversight by a highly partisan judge, and repeated trials and verdicts issued by the local press. These are the concepts of justice perfected by Democrats in the Old South and now brought to a jurisdiction near you.
You should really try and smell the shit you are shoveling.
President Trump said they were swamp creatures and they are proving they are.
I’m not sure what people expected, given that this is how court usually begins in Manhattan:
Since Stormy Daniels speaks to ‘the dead’, why didn’t Trump’s defense team ask her what the founding fathers thought about Bragg’s case being held in Merchan’s court.
Perhaps, all the problems with the Democrats began in debate class?
Here is how they debate an issue in college in England:
https://www.zerohedge.com/political/watch-pelosi-dismantled-real-time-masterclass-populism
Here is how we debate an issue in college in America:
https://www.youtube.com/watch?v=fmO-ziHU_D8
No wonder Mr. Bragg is unable to form a coherent argument.
It’s endlessly amusing how anti-democracy populists, i.e., Trump supporters, actually think of themselves as conservatives.
Are you a bot?
Simply put, her profession has left her all @#$%ed up!!
It’s about @#$% up Donald Trump, lol.
I wish I could accept an accusation against Trump, if I could understand the charge. I am not his fan, even if I recognized that in his term as President, we were, in all spheres, better than today. As I watch on TV, he is accused of “cheating” the bank by overvaluing his Mar-A-LAGO WPB residence. As the bank approved the loan, he faithfully paid the loan, it is common sense that #1 the bank valued the property enough to cover the loan, and #2 he paid faithfully. Where is the damage? Where is the crime?
Asking “what is the crime” when it is clearly spelled out in the indictment means you’re either just willfully contrarian or you’re a moron. Your choice.
This is not true, but it doesn’t really matter. Once the trial starts, it is the proofs, not the Indictment, which must establish the elements of a crime.
Will Merchan grant a standard motion for dismissal? It will be of prodigious interest for principled jurists to witness. Regard for the New York judicial system rests upon whether or not it is one administered mostly by politicians purely for political purposes.
https://external-content.duckduckgo.com/iu/?u=http%3A%2F%2F3.bp.blogspot.com%2F_NfN_EWerqnQ%2FTFufhFeB4lI%2FAAAAAAAAA4M%2Fw9ybuotfUX
CNN calls it The Trump Hush Money Trial, connotating to many, if not most, civilians that “hush money,” i.e., confidential settlement agreements or NDAs, are per se, at least presumptively, illegal, even without lurid subject matter. Any lawyer can tell you that they are common, even in routine tort cases, typically so that the plaintiffs’ bar does not learn “the going rate” that a particular inurance company pays for that kind of case. As for losing CNN support, the prosecution probably still has its fans among Screecher Maddow et al. at MSNBC.
Legal Qs: Cannot Judge Merchan order Michael Cohen not to comment on the case? Such orders are not always unconstitutional; otherwise they could never be imposed. And, has the defense noted that Clinton officially won the 2016 popular vote? (Not a Clinton fan; simply noting it.) Bragg might be better off with (very) creative lawyering to prosecute the Electoral College. That would be most entertaining.
On a lighter note, perhaps it should now be called The Possum Poltergeist Trial. We know of the Scopes Monkey Trial; how about The Trump Possum Trial?
I’m not sure what the popular vote has to do with this case.
The Bragg case appeals to the same people as those watching Jerry Springer and Hot Bench. Throw it out. 😏
Have you seen the hordes of trailer park losers who show up to Trump rallies?