Below is an expanded version of my column in the New York Post on the start of the Trump trial and much awaited explanation of District Attorney Alvin Bragg on the underlying alleged criminal conduct. The curious aspect of the case is that the prosecutors are stressing that they will prove largely uncontested facts. Indeed, if all of these facts of payments, non-disclosure agreements, and affairs are proven many of us (including liberal legal experts) are doubtful that there is any cognizable crime.
Here is the column:
For many of us in the legal community, the case of Manhattan District Attorney Alvin Bragg against former president Donald Trump borders on the legally obscene: an openly political prosecution based on a theory that even some liberal pundits have dismissed. Yet, this week the prosecution seemed like they were actually making a case for obscenity.
No, it was not the gratuitous introduction of an uncharged alleged tryst with a former Playboy bunny or planned details on the relationship with a former porn star. It was the criminal theory itself that seemed crafted around the standard for obscenity famously described by Supreme Court Justice Potter Stewart in the case of Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define [it] … But I know it when I see it.”
After months of confusion of what crime they were alleging in the indictment, the prosecution offered a new theory that is so ambiguous and undefined that it would have made Justice Stewart blush.
New York prosecutor Joshua Steinglass told the jury that one of the crimes that Trump allegedly committed in listing the payments to Stormy Daniels as a “legal expense” was New York Law 17-152. This law states “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.”
So they are arguing that Trump committed a crime by conspiring to unlawfully promote his own candidacy. He did this by paying to quash a potentially embarrassing story and then reimbursing his lawyer with other legal expenses.
Confused? You are not alone.
It is not a crime to pay money for the nondisclosure of an alleged affair. Moreover, it is also not a federal election offense (which is the other crime alleged by Bragg) to pay such money as a personal or legal expense. It is not treated under federal law as a political contribution to yourself.
Yet, somehow the characterization of this payment as a legal expense is being treated as an illegal conspiracy to promote one’s own candidacy in New York.
The Trump cases have highlighted a couple of New York’s absurdly ambiguous laws. Under another law, New York Attorney General Letitia James secured an almost half of billion dollar judgment against Trump for loans where the alleged victims not only did not lose a dime but were eager for more business from his company. The law does not actually require any loss to a victim to impose a roughly $500 million penalty against a defendant that James pledged to bag in her campaign for office. While the over and under valuing of assets is common in the real estate area, James singled out Trump.
James declined to explain how this law could be used against other businesses since actual losses or injuries are not viewed as necessary. Businesses would just have to trust her and her judgment. In other words, the law could have sweeping applications, but we will know a violation under the civil law when we see it.
As with James, Bragg saw it in Trump. His predecessor did not see it. He declined charging on this basis. Bragg did to. He stopped the investigation. However, after a pressure campaign, Bragg might not be able to see the crime but he certainly saw the political consequences of not charging Trump.
In New York, prosecutors are expected to have extreme legal myopia: they can see no farther than Trump to the exclusion of any implication for the legal system or legal ethics.
Of course, neither he nor his office has never seen this type of criminal case in any other defendant. Ever.
We have never seen a case like this one where a dead misdemeanor from 2016 could be revived as a felony just before any election in 2024.
The misdemeanors in this case, including falsifying these payments, expired with the passage of the statute of limitations. But Bragg (with the help of Matthew Colangelo, a former top official in the Biden Justice Department) zapped it back into life by alleging a federal election crime that the Justice Department itself rejected as a basis for any criminal charge.
So now there is a second crime that is hard for most of us to see, at least outside of New York. Trump is accused of conspiring to promote his own candidacy by mislabeling this payment, even though it was part of a larger legal payment to his former counsel, Michael Cohen.
They do not see a crime in analogous mislabeling of payments by Democratic candidates. Take Hillary Clinton who served as senator from New York and ran for president against Trump. For months before the 2016 election, Hillary Clinton’s campaign denied that it had funded the infamous Steele dossier behind the debunked Russian collusion claims. That was untrue. When reporters tried to report on the funding story, one journalist said Elias that “pushed back vigorously, saying ‘You (or your sources) are wrong.’”
It was later discovered that the funding was hidden as legal expenses by then-Clinton campaign general counsel Marc Elias. (The FEC later sanctioned the campaign over its hiding of the funding.). Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
Elias even went with John Podesta, Clinton’s campaign chairman, in speaking with congressional investigators and Podesta denied categorically any contractual agreement with Fusion GPS.
While the funds were part of the campaign budget, they were listed as legal expenses and the Clinton people continued to insist that such payments to a former intelligence figure to put together the dossier was a legal expenditure.
It is not clear if Trump even knew how this money was characterized on ledgers or records. He paid the money to his lawyer, who had put together this settlement over the nondisclosure agreement. Cohen will soon go on the stand and tell the jury that they should send his former client to jail for following his legal advice.
In addition to running for president, Trump was a married host of a hit television show. There were ample reasons to secure a NDA to bury the story. Even if money was paid to bury these stories with the election in mind, it is not unusual or illegal. There was generally no need to list such payments as a campaign contribution because they were not a campaign contribution in the view of the federal government.
It is not even clear how this matter was supposed to be noted in records. What if the Trump employee put “legal settlement in personal matter” or “nuisance payment”? Would those words be the difference
Again, it is not clear. But that does not appear to matter in New York. The crime may not be clear or even comprehensible. However, the identity of the defendant could not be more clear and the prosecutors are hoping that the jury, like themselves, will look no further.
How does President Trump get justice if the jury already made up their minds before the trial started?
Worse you actually read the indictment – and he is trying to vindicate fed rights – yet even Sotomayor just asked why does one state get to pick? Isn’t this just a back door? How can one state make a criminal of our guy so long after the fact? Except to interfere with an election. But omega won’t be stopped – bc Jesus christ is the alpha and the omega – the first and the last – the beginning and the end – and he gives us our govt- says to give unto Ceasars what is his – but ntl gives us govt. The people born endowed by th3 creator will see passed the ivy leagues and college Greek- omega = omega
O maga
Ad rem or ad hominem commonly characterize argumentative thrust, be it toward ideas or the character of a disputant respectively. Now the terms may be helpful to distinguish between intellects and ideologs among members of the bar. The insistence for diversity emerges as an explanation of the appearance of ideologs among the prosecutorial ranks where inexperience is the norm. Law schools have lowered their admission standards and the new class of lawyerly ideologs is among us .Bragg and Wllis are exemplars .
If Jonthan Turley persists in his attacks on our esteemed two-tier system of justice, he is going to find himself charged with judicial interference by willifully attempting to influence the jury in the Trump case in New York City. I would suggest that he gag himself and say only good things about Alvin Bragg. Otherwise he’s likely to find himself wisked out in to the cornfield, metaphorically speaking.
In a 4-3 decision, the New York Court of Appeals found that the trial judge who presided over . . . made a crucial mistake, allowing prosecutors to call as witnesses a series of witnesses, — but whose accusations were not part of the charges against him.
New York just overturned a major Rape case
Colangelo, might want to reconsider his first two witnesses. Oops, door open, horse long gone.
But this is contrary to the Democrat style of prosecution. New York Democrat prosecution lawyers are taught and trained to get anything they can on their target defendant and present it before the jury, who will always do whatever the prosecutions tells them to do. The idea is that if enough “bad staff” about the target is introduced, this will make it a smooth deal to get a jury to convict. And New York Democrat judges are trained and taught to let anything in that helps a fellow Democrat prosecutor.
So, for example, in one case where the New York prosecution wanted to nail a defendant for embezzling tax funds and they didn’t have any actual evidence of embezzlement, they introduced the following instead:
1. The defendant was videoed routinely jaywalking in New York Streets.
2. The defendant admitted to voting Republican in several elections.
3. The defendant was videoed in a plush restaurant requiring jacket and tie, put the defendant wasn’t wearing a tie.
4. The defendant was caught on video saying such things as “Biden is a jerk” and “Biden’s got dementia.”
5. The defendant admitted to giving $200 to a Republican candidate for public office.
The jury readily convicted the defendant of embezzlement of the tax funds under these facts and circumstances in that case.
Given that these tactics have worked so well for Democrat prosecutors in the past, they are still routinely use them, particularly when they have no evidence to support their cases.
Alvin Bragg is African-American
Letitia James is African-American
Fani Willis is African-American
Nathan Wade is African-American
Tanya Chutkin is African-American
They are all being used and abused by persons within the Biden Organization which has publicly vowed to get Joe re-elected…..by whatever means necessary.
You might be correct. But don’t forget that correlation never proves causation.
I realize that neither leftists nor conservatives care about justice, so I’m here to poke you in the heart. Bill Clinton chose, deliberately, despite knowing a holocaust was underway, not to call the UN to ask for Peacekeepers to defend a million innocent blacks who were murdered in 1994. We are a disgrace.
There is a sacrifice to be made to be a morally justice, person or society—–you have to forsake the money and the economic consequences to do what is right and morally just. Who among us can make that claim?
So here’s the Left’s theory of the crimes, at least today:
Let’s use state laws (misdemeanors) with expired statutes of limitations, to bootstrap another crime (“conspiracy” to influence a *state* election during a *federal* election).
In other words: Let’s use non-crimes as the pretext for more non-crimes.
In any rational universe, this case would be laughed out of existence.
Sam,
Well said.
@Sam,
Close.
They are using a Federal Crime to ‘bootstrap’ a state law to extend the expired statute of limitations.
They can’t do this.
There’s an argument that Trump’s lawyers should file a motion to toss this case because Bragg lacks jurisdiction to try a Federal case, which the Feds declined to pursue.
Notice how some people are charged and tried twice for the same crime? Once in State/Local court, then once in Federal Court on Federal charges for the same crime… Chauvin ?sp? the officer who was held responsible for Floyd’s death? (Even though he was already dying from a drug overdose. )
Of course today SCOTUS is hearing Trump’s legal team and their argument for immunity. And frankly, that’s a strong argument on itself.
One that would kill this.
But yes, you’re right.
This is why anyone with a functioning brain will vote for Trump.
Not because they like the Orange Ooompa Loompa, but Biden is far worse.
And Biden is starting a roll on bad ideas as EOs.
-G
You may be right that in the end they will claim that the “unlawful means” referred to in NY Law 17-152 was a violation of Federal campaign finance law, but so far they have not claimed this.
How is it not a gross due process violation to try someone without a full explanation of the crime he is alleged to have committed?
Daniel,
Well said.
This whole thing is a gross due process violation.
But, hey, “GETTRUMP!”
The question is, how can a state jury find him guilty of the federal statute???
“The question is . . .”
And before that, the question is: How does a judge allow a prosecutor to bring a charge over which he has no jurisdiction?
Daniel,
I haved been seeking the crime being charged.
I think I need to demand what action taken by Trump supporting this trial
We need that action.
Still waiting for the lawyers her to learn me up.
“How is it not a gross due process violation . . .”
Of course it is (as you know).
And here we have Lord Acton’s famous dictum: “Power corrupts and absolute power corrupts absolutely.”
And its corollary: To satisfy the urge for absolute power, corrupt everything.
“They are using a Federal Crime to ‘bootstrap’ a state law to extend the expired statute of limitations.”
That, too. But that was yesterday’s theory. Today’s new-and-improved, get-Trump, theory is: Tie the conspiracy charge to a NY *state* election violation.