The Trump guilty verdict — some misgivings

Incredible headline yesterday — to go in history. 

The NY jury found Trump guilty on all 34 felony counts.

A lot of people hate Trump. And for most people — as long as they agree with the result — they don’t really care about how it was obtained, or what the broader consequences might be. 

In my view, we should all care about the process. And, my provisional view is that there is something wrong with this conviction.

It feels like the law has been manipulated for political purposes.

I think Trump may have the last laugh on appeal.

Legal irregularities

Andrew McCarthy, at National Review (an anti-Trump publication), highlighted the many ways in which this case applies a wholly novel and flawed legal theory to Trump and suffers from major constitutional infirmities that will be raised on appeal. E.g., the jury instructions.

From my own readings, the obvious problems seem to be:

1. Prosecutor Bragg resuscitated a single misdemeanor — which could have been resolved with a fine etc. — and claimed that Mr Trump falsified business records in order to conceal “another crime” — which we later learned was supposed to be a “campaign finance” violation. This is because, by 2024, the statute of limitations for that false accounting charge had already expired. So, the prosecution “repackaged” it as a felony — arguing that the 2016 election had been rigged as a result of that false accounting. The felony — which has a much longer statute of limitations — is a violation of NY election law 17-152, which states that you cannot promote election “by unlawful means”. The “unlawful means” being the hush money payment.
2. Bragg’s team did not definitively state this until their closing arguments — and after the defence already addressed the court. The indictment failed to specify this crime (which it must under the constitution). God knows how, but Bragg was able to convict someone without telling them exactly what the crime was that they allegedly intended to commit. Therefore, Trump couldn’t defend himself properly. (Although, Tony Diver for DT has written about the “deny everything” flaw in Trump’s defence.)
3. Moreover, this is despite the fact that the DOJ and FEC have exclusive jurisdiction over campaign finance law (under the constitution), and had investigated this purported violation, and chose not to pursue it. Presumably because it was plain that Trump’s payment to Daniels did not qualify as a campaign expenditure.

Extra reading: vexatious prosecution

The WSJ has a very interesting editorial. The WSJ originally broke the hush-money story; and think Trump obviously committed that bit of sleaze. 

Broadly, the argument is that this was a targeted — if even malicious — prosecution. I’ve summarised the interesting bits:

Mr Bragg, an elected Democrat, ran for office as the man ready to take on Mr. Trump. When the new DA didn’t indict shortly after winning office, his top Trump prosecutors loudly quit, increasing the pressure on Mr. Bragg to do, well, something. Even after a guilty verdict, the case he ended up filing looks like a legal stretch.

To elevate these counts into felonies, the DA said Mr. Trump cooked the books with an intent to commit or cover up a second offence. What crime was that? At first Mr. Bragg was cagey. He eventually settled on a New York election law, rarely enforced, that prohibits conspiracies to promote political candidates “by unlawful means.” 

Yet what “unlawful means” did this alleged conspiracy use? The DA’s argument was that there were three: First, the hush money was effectively an illegally large donation to Mr. Trump’s campaign. Second, more business filings were falsified, including bank records for Mr. Cohen’s wire transfer to Ms. Daniels. Third, false statements were made to tax authorities, since Mr. Trump’s repayment of Mr. Cohen was structured as income and “grossed up” to cover the taxes he would need to pay on it.

In some ways this Russian nesting doll structure, to use another analogy, defies logic. Did Mr. Trump falsify business records in 2017 to cover up an illegal conspiracy to elect him in 2016, whose unlawful means included false information in Mr. Cohen’s tax return for 2017? There was hardly any direct evidence about Mr. Trump’s state of mind. Federal prosecutors squeezed a guilty plea out of Mr. Cohen but notably didn’t pursue Mr. Trump. One news report said the feds worried that his “lack of basic knowledge of campaign finance laws would make it hard to prove intent.”

A help to Mr. Bragg’s prosecution is that the jurors were instructed that as long as they were unanimous that Mr. Trump was guilty of falsifying business records to aid or cover up an illegal conspiracy to get him elected, they didn’t all have to agree about which theory of the “unlawful means” they found persuasive. Perhaps this will be taken up by Mr. Trump on appeal. He will almost certainly argue, too, that the Stormy pay-off wasn’t a campaign expense, as Brad Smith, a former chairman of the Federal Election Commission, has been arguing all along.

We don’t doubt the sincerity of the Manhattan jurors, but many voters will digest all of this and conclude that, while Mr. Trump may be a cad, this conviction isn’t disqualifying for a second term in the White House. Judge Juan Merchan tolerated Mr. Bragg’s legal creativity in ways that an appeals court might not. What if Mr. Trump loses the election and then is vindicated on appeal? If Democrats think that too many Republicans today complain about stolen elections, imagine how many more might next year.