The very political New York prosecution of Donald Trump.
Posted by Ed Folsom, June 18, 2024.
Ever since Donald Trump was convicted in New York State court, on May 30, his political enemies have struggled mightily to convince the public that his prosecution was not political. Within 24 hours, they were all over anyone who claimed that D.A. Alvin Bragg campaigned for office on a promise to prosecute Trump. “Misinformation!” they cried. More recently, George Washington University Law professor Jonathan Turley reports that the Connecticut Bar Association has warned its members against criticizing the proceedings, telling them that the criticism has “no place in the public discourse” and calling on members to speak publicly in support of the integrity of the New York legal proceedings. Turley quotes the Bar Association as also warning its members against “cross[ing] the line from criticism to dangerous rhetoric.”
These protectors of the Party line tell us that criticizing Trump’s prosecution is an attack on America’s system of justice, as if we haven’t noticed many of the same players criticizing the American judicial system as a whole, for years now, as “systemically racist,” “white supremacist,” etc. They would have us believe that Trump’s New York prosecution represents the way the American justice system is supposed to work, not a mutated, malignant and localized form that should be contained and excised before the disease spreads any further. They act as if criticism of Trump’s prosecution is an attack on mom, apple pie, and the American way.
Let’s dive into some particulars of Donald Trump’s prosecution, starting with the un-alleged conduct that formed the basis of his convictions.
The D.A.’s prosecution theory was only completely revealed to the Defendant as the trial unfolded. The underlying conduct dated back to 2016. That year, during the Trump v. Clinton presidential campaign, Stormy Daniels threatened to tell the press that she had a sexual affair with a then-married Donald Trump ten years earlier, in 2006. Trump’s 2016 attorney, Michael Cohen, negotiated with Daniels’ attorney and reached a “non-disclosure” agreement under which Daniels agreed not to go to the press with the story in exchange for $130,000.00. Cohen made the payment on October 26, 2016. Later, after Trump was elected and sworn-in as President, the Trump organization reimbursed Cohen through a series of payments that began in April of 2017 and continued through late 2017, recorded in Trump Organization records as payment of legal fees.
Alvin Bragg runs for Manhattan D.A. as best would-be Trump slayer.
In March of 2021, Alvin Bragg ran for the office of Manhattan District Attorney. Although Bragg was not a member of the Manhattan D.A.’s Office at the time, and therefore was not privy to any investigative information held by that office, much of the focus of Bragg’s campaign was on his prowess as a Trump hunter.
In an April, 2024, retrospective on Bragg’s D.A. campaign, the New York Times described the campaign as follows (as quoted here):
Even before [the previous Manhattan district attorney Cyrus] Vance announced in March 2021 that he would not seek re-election, the race had become a referendum on who could best take on Trump. In a primary campaign of would-be Trump slayers, Bragg sold himself as the most experienced.
He talked about supervising the New York State investigation into the Trump Foundation as chief deputy attorney general in 2017 — a case that led to the charity’s closure. He said he knew how to prosecute fraud in the valuation of properties, one strand of Vance’s Trump investigation. Referring to Trump’s “criminal policies,” Bragg added, “He has embraced white nationalism, misconstrued data and engaged in cronyism, and the result has been a parade of horribles.” Bragg told The Wall Street Journal that he “certainly” had more experience with Trump “than most people in the world.” A rival Democrat’s spokeswoman complained that Bragg attacked Trump “for political advantage every chance he gets.”
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For Bragg, this was a break with lawyerly protocol — to be talking about a potential case before seeing all the facts, at the risk of appearing biased. Yet in this election cycle, and especially with Trump newly vulnerable after his 2020 loss, holding him to account seemed vital to being elected in Manhattan.
Bragg’s campaign was hardly all Trump. He also championed the sort of criminal-justice-reform issues — for example, ending long prison sentences for low-level street crimes — that had helped progressive prosecutors sweep into office nationwide. But he seemed to double down on Trump as the campaign went on, simplifying and exaggerating his record. “It is a fact that I have sued Trump over 100 times,” Bragg told The New York Times in April 2021, an often-repeated claim that would be published everywhere from CNN to the BBC. “I can’t change that fact, nor would I. That was important work.”
Bragg takes office in 2022, secures indictment against Trump in March 2023.
Bragg won the D.A. election. He was sworn into office in 2022. In March of 2023, he secured a 34-count indictment against Trump, roughly 6 1/2 years after Michael Cohen’s payment to Stormy Daniels, and more than 5 years after the last reimbursement payment was made and recorded in Trump Organization records. New York’s statute of limitations on the charges in the indictment is 5 years. On misdemeanors, the statute of limitations is 2 years.
Each of the 34 counts in the indictment alleges a false entry in a business record of the Trump Organization. For each time Cohen submitted an invoice seeking partial reimbursement of the Stormy Daniels payment, that invoice, kept in Trump organization records, was alleged as a false entry. The business ledger entry related to the same invoice was alleged as a separate false entry. And the notation on the reimbursement check issued to Cohen for that invoice was alleged as yet another false entry count. By this method, Bragg amassed 34 false entry counts.
How did Bragg manage to reach back to conduct that allegedly occurred well over 5 years previously, given the statute of limitations? Remember what Bragg told the voters — with Trump as the target, he was the best man for the job. By the account of Elie Honig, a CNN legal analyst and former federal and New York State prosecutor:
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. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.
But Bragg convinced the trial judge, Juan Merchan, that the statute of limitations had been tolled by Trump’s absences from New York, long enough to make up the time that passed between the end of the 5-year period and the date of the indictment. The only other thing Bragg needed to be concerned about was finding a crime or crimes to level against his target, Trump. On that count, Bragg needed to turn the payment to Stormy Daniels into a crime under New York law and then hold Trump “accountable” for it.
Bragg’s legal theory begins with Michael Cohen’s “hush money” payment to Stormy Daniels in October of 2016. Judge Merchan helps Bragg keep the specifics concealed from Defendant Trump.
Bragg developed a theory that Michael Cohen’s October, 2016, payment to Stormy Daniels violated a New York campaign finance statute titled “conspiracy to promote or prevent election.” That statute provides:
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. NY campaign finance violation: § 17-152.
Because this is a misdemeanor, it has a 2-year statute of limitations. But that is not the crime that Bragg charged in Trump’s indictment. Instead, Bragg created a theory that Trump was in on the deal when Cohen made the payment to Stormy Daniels. Obviously, the payment to Daniels wasn’t made to prevent Trump’s election to public office, but Bragg theorized that it was made to somehow “promote” Trump’s election.
How did the payment “promote” Trump’s election, as opposed to merely preventing Stormy Daniels’ efforts to interfere with it? If you don’t bother getting bogged down in such details, and if you lend the term “promote” a broad enough meaning, you could conceive of a conspiracy between at least two people (Trump and Cohen) to promote Trump’s election. And so Bragg did. But by what unlawful means did the conspirators purportedly conspire to promote Trump’s election, and what action did any party to the conspiracy purportedly take in furtherance of the conspiracy?
As for unlawful means/action taken in furtherance of the conspiracy, Bragg and trial Judge Merchan let Trump know at trial, shortly after the close of evidence, that Trump would have to fend-off three possible theories. The three theories on which Merchan instructed the jury were:
1. That the unlawful means was a violation of federal election law, through Cohen’s making of a contribution to the Trump campaign of more than $2,700.00. Here, the theory was that Cohen’s October 2016 payment to Stormy Daniels’ attorney was an excessive and therefore illegal campaign contribution. Merchan instructed the jury on the federal election campaign act and what actions constitute a violation of that act, matters outside his jurisdiction as a New York State judge. The Federal Election Commission, itself, does not consider that a “hush money” payment such as the one Cohen made to Stormy Daniels can constitute a campaign expense. If such payments were campaign expenses, candidates could legitimately pay them using campaign contributions. This raises the question how paying money that benefits a candidate for something that cannot constitute a campaign expense can be a campaign contribution – all a matter of federal law, not New York State law. But Merchan did not get bogged down in such details. Or
2. That the unlawful means consisted of false entries in the business records of an enterprise, other than the false entries alleged in the 34 indictment counts, made with intent to defraud. Or
3. That the unlawful means consisted of materially false or fraudulent information submitted in connection with either a New York City municipal tax return or a New York State or federal tax return.
As to these three possible theories of the unlawful means/action taken in furtherance of a conspiracy to promote Trump’s election, Judge Merchan instructed the jury twice in the course of his instructions:
Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.
Merchan did not require the jury to reach what is called “specific unanimity” on this issue. Mix and match was fine. And keep in mind that none of this conspiracy and unlawful means stuff was even alleged in Trump’s indictment. Bragg couldn’t just charge the conspiracy offense directly, because violating New York Penal Code 17-152 is only a misdemeanor with a 2-year statute of limitations.
Bragg needs to structure a felony charge to connect Trump to the un-alleged accusations.
Bragg needed to come up with a felony charge to level against his target. What he came up with was a violation of penal code §175.05, “Falsifying business records in the second degree,” increased to a felony under §175.10, “Falsifying business records in the first degree,” because of an alleged intent to defraud that included “an intent to commit another crime or to aid or conceal the commission thereof.” It is this felony offense, a violation of New York Penal Code §175.10, that Bragg alleged 34 times — once for each of the 34 counts of Trump’s indictment.
It might occur to you that the alleged conduct in those 34 counts all occurred by the end of 2017 and that the statute of limitation is 5 years, which had passed by the end of 2023. Yet Bragg did not secure the indictment until March of 2023. However, the statute of limitations did not bar prosecution, because Merchan was satisfied that Trump’s absences from New York tolled the statute of limitations long enough to make up the difference.
To give you an idea of the form of the charges in the indictment, here is the pertinent language from count one:
The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.
The language that elevates the charge from a misdemeanor to a felony under §175.10 is, “and intent to commit another crime and aid and conceal the commission thereof.” But none of the indictment counts alleged what other crime Bragg was accusing Trump of intending to commit, aid, and conceal. As a defendant in a criminal case, Trump wanted to know what that other crime was supposed to be. So, he requested a bill of particulars to fully inform him of the nature of the charges. Bragg objected. Bragg wanted the prerogative to play hide-the-ball on the defendant, to keep his options open. Judge Merchan sided with Bragg and denied Trump’s request.
As we now know, because Bragg and Merchan revealed it to Trump shortly after the close of evidence, the other crime was “conspiracy to promote or prevent election,” §17-152, which in turn contains the element of conspiring to promote or prevent a person’s election to public office by “unlawful means.” Trump would like to have been told what he was accused of doing in this regard as well. What were these unlawful means? But that also had to wait until jury instructions, which instructions gave the jurors the three potential options detailed above, as to which the jury was twice instructed, “[Y]ou need not be unanimous.”
Judge Merchan’s unethical 2020 contribution to a political campaign to resist “Donald Trump’s radical right-wing legacy.”
For Judge Merchan’s part, on July 26 and 27, 2020, he made a series of political contributions in violation of New York’s judicial code of conduct. One of those contributions was to The Progressive Turnout Project, whose stated mission is to “rally Democrats to vote.” Another was to the organization, Stop Republicans. According to the New York Post, “Stop Republicans is a subsidiary of the Progressive Turnout Project and describes itself as ‘a grassroots-funded effort dedicated to resisting the Republican Party and Donald Trump’s radical right-wing legacy.’”
For these violations, Merchan received a dismissal with a caution from New York’s judicial oversight panel in 2023. Then, in no time flat, there he was, sitting as the purportedly impartial trial judge for Donald Trump’s criminal trial, pooh-poohing Trump’s motion to recuse.
That’s right, Trump’s trial judge violated judicial ethics to make a campaign contribution to an organization whose stated mission was specifically to resist Donald Trump. But then again, it’s very possible that, in New York, there was no less partial judge to be found.
What did the D.A. need to prove, to prove the part of Trump’s charges actually alleged in the indictment? What is “intent to defraud?”
Alright, we know what the indictment counts did not allege. We also know Bragg’s theory as to what constituted the un-alleged underlying criminal conduct in 2016, when Trump was still a candidate for public office. Now let’s focus on the conduct that was actually alleged in the indictment. Before the State could get to the felony part of those alleged charges, the State needed to prove beyond a reasonable doubt that Trump (or another person for whose conduct Trump was legally accountable) made the alleged false entries in business records of an enterprise “with intent to defraud.”
Merchan instructed the jury on the meaning of “intent to defraud” as follows:
In order to prove an intent to defraud, the People need not prove that the defendant acted with the intent to defraud any particular person or entity. A general intent to defraud any person or entity suffices. Intent to defraud is also not constricted to an intent to deprive another of property or money and can extend beyond economic concerns.
From this, the jury learned that there are two things that were not required for a finding of “intent to defraud”: (1) that the defendant necessarily intended to defraud a particular person or entity, and (2) that the defendant necessarily intended to deprive someone else of property or money. But with that much established, what is “intent to defraud” within the meaning of this statute?
It is improper to leave it to a jury to decide for themselves the meaning of a statutory term that comprises an element of a criminal offense. Yet apart from instructing the jury what they did not need to find, what did Merchan do to inform the jury what they did need to find?
The term “defraud” is nearly always defined in terms of depriving another person or organization of an interest in something belonging to that other person or organization, by deception. For example:
“[T]o take something illegally from a person, company, etc., or to prevent someone from having something that is legally theirs by deceiving them.” Cambridge English Dictionary.
“[T]o deprive of something by deception or fraud.” Miriam-Webster Dictionary.
By instructing the jury that intent to defraud “can extend beyond economic concerns” and that it isn’t restricted to the intent to deprive someone of property or money, Merchan essentially told the jury that, for purposes of this statute, “defraud” does not mean what it usually means. But if it doesn’t mean what it usually means, what does it mean? If it doesn’t necessarily involve the intent to deprive someone of property or money what does it necessarily involve? If it can extend beyond economic concerns, are there any limits on what it can extend to? This, Merchan did not tell them.
With the term “defraud” stripped of its ordinary meaning in this way, why wouldn’t the jury have been justified in taking it to mean no more than “deceive,” for instance. In other words, if the jury found that the state proved beyond a reasonable doubt that Trump or an accessory made a false entry in the business records of an enterprise with the intent to deceive someone, there was nothing in Merchan’s instructions to tell them that was not enough; that something more than a bare intent to trick or deceive someone is required to constitute the intent to defraud. And yet, the New York Legislature did not choose to use the term “deceive.” Instead, the Legislature specifically chose to require that the person must have the intent to defraud, not merely to deceive.
Merchan left the jury to decide for itself, unguided, what the statutory term “defraud” means when stripped of its ordinary meaning.
Merchan instructed the jury that Michael Cohen was Trump’s accomplice to the alleged charges as a matter of law.
In another portion of Merchan’s instructions, he told the jury the following regarding the testimony of Michael Cohen:
Under our law, Michael Cohen is an accomplice because there is evidence that he participated in a crime based upon conduct involved in the allegations here against the defendant.
Note that Merchan did not tell the jury that Cohen was an “alleged” accomplice of Trump. He told the jury that Cohen was an “accomplice” of Trump as a matter of law. This matters a great deal, because the theory of the un-alleged predicate conspiracy to promote Trump’s election by unlawful means included that Michael Cohen made a payment to Stormy Daniels that was an illegal campaign contribution, and that Cohen then attempted to conceal the nature of this payment with certain false entries in business records.
When Michael Cohen testified at Donald Trump’s trial, he was allowed to testify over Trump’s objection that he had pled guilty in federal court to a federal campaign finance violation. Ordinarily, no court would allow such testimony into evidence, because it has virtually no probative value on the issues in the case and is extremely prejudicial to the defendant. In Trump’s trial, Merchan admitted it into evidence over Trump’s objection, on the theory that it was necessary to help the jury gauge Cohen’s credibility and understand events.
In a criminal trial, when a felony conviction or a conviction for a crime of dishonesty is admitted into evidence, it is admitted solely to impeach the convicted person’s credibility as a witness. Here, Trump had no desire to impeach Cohen with Cohen’s conviction for violating campaign finance law. There was a tremendous potential for the jury to mistake that as evidence that if Cohen pled guilty to violating federal campaign finance law, Cohen must have violated federal campaign finance law. It was D.A. Bragg who introduced the evidence, and Merchan allowed it as if justice required that the D.A. must be allowed to impeach the credibility of his own witness, Michael Cohen. This was entirely cynical.
One of Bragg’s three theories of the potential means used to further an underlying conspiracy to promote Trump’s candidacy by unlawful means was that Cohen committed a federal campaign finance violation – specifically by making a campaign contribution above the $2,700.00 limit.
Cohen in fact pled guilty to two campaign finance counts under a federal indictment in which the campaign finance violation counts trailed behind six much more serious counts of tax evasion ($1.3 million in unpaid taxes) and making false statements to a federally insured bank. Cohen entered his guilty pleas under a plea agreement that netted him three years in prison. It was a package deal. Cohen got the recommended sentence from the Government only because he pled guilty to all the charges that the Government insisted he must plead guilty to. Because Cohen entered guilty pleas to the campaign finance violation charges, the Government’s theory was never tested by litigation. And, in any event, it is entirely improper for a jury to consider that Michael Cohen’s guilty plea established that he in fact committed the same campaign finance violation that Trump was accused of committing with him.
Here is what Merchan instructed the jury regarding the evidence of Cohen’s guilty plea to the federal campaign finance violations:
[Y]ou will recall that you heard testimony that Michael Cohen pleaded guilty to violating the Federal Election Campaign Act, otherwise known as FECA. I remind you that evidence was permitted to assist you, the jury, in assessing Mr. Cohen’s credibility as a witness and to help provide context for some of the events that followed. You may consider that testimony for those purposes only. Neither the fact of the FEC investigation, Mr. Cohen and his attorney’s responses or the fact that Mr. Cohen pleaded guilty, constitutes evidence of the Defendant’s guilt and you may not consider them in determining whether the Defendant is guilty or not guilty of the charged crimes.
Of course, it was essential for Merchan to instruct this way. If he failed to put this limiting instruction on the record, that failure in and of itself would clearly lead to reversal by the appellate court. However, in what amounted to a judicial wink to the jurors, Merchan also instructed the jury:
Under our law, Michael Cohen is an accomplice because there is evidence that he participated in a crime based upon conduct involved in the allegations here against the defendant.
This was followed by admonitions that the jury could not make a finding of guilty based on the testimony of an accomplice alone “unless it is supported by corroborative evidence tending to connect the defendant with the commission of that crime.” Merchan further instructed that the corroborative evidence could be as little as:
material, believable evidence…which, while it does not itself tend to connect the defendant with the commission of the crime charged, it nonetheless so harmonizes with the narrative of the accomplice as to satisfy you that the accomplice is telling the truth about the defendant’s participation in the crime and thereby tends to connect the defendant to the commission of the crime.
With all that, why couldn’t the jury have taken Cohen’s guilty plea to federal campaign finance violations as material and persuasive evidence so in harmony with Cohen’s narrative that it established Cohen was telling the truth, thereby also establishing that Trump – already established to be Cohen’s accomplice as a matter of law according to the judge — committed the un-alleged campaign finance violation that Bragg accused him of, as Cohen’s accomplice.
You can call it justice if you like, but that’s not justice.
Their rule of law: “Our Will be done, by any means necessary.”
As the title of CNN legal analyst Elie Honig’s piece declares, “Prosecutors Got Trump – But They Contorted the Law.” Now, the elite of Team Trump-Hate are in full criticism-suppression mode, branding it “dangerous” to question what they’ve done, as if any criticism is a frontal attack on the American legal system and Our Democracy™ itself. In Connecticut, in an echo of warnings issued to doctors during the COVID-19 pandemic, the bar association has essentially warned the lawyers: “You’d better watch what you say.”
Team Trump-Hate really has no choice but to do this, to try to recapture an aura of legitimacy. The polling has showed that, with the proceedings in New York, they have undermined own their legitimacy. They, the great de-legitimizers of all things not themselves, have now de-legitimized themselves by their own tactics. It’s now far too obvious to far too many people what they’ve done, what they are about. It’s too late for them to reel it back in. They chose to pursue the strategy against their hate-target, Trump, that Stalin’s chief prosecutor, Lavrentiy Beria described as, “Show me the man, and I’ll show you the crime.”
Team Trump-Hate keeps telling us they stand for the rule of law, but their law is no more than, “Our Will be done;” their rule, “By any means necessary.”
They did not need to change any legal codes to do this. They have discovered that it isn’t the law itself that matters, but the way it is administered. As Vaclav Havel observed of the Czechoslovakian legal system under 1970’s communism:
[T]he legal code functions as an excuse. It wraps the base exercise of power in the noble apparel of the letter of the law; it creates the pleasing illusion that justice is done, society protected, and the exercise of power objectively regulated.
If an outside observer who knew nothing at all about life in Czechoslovakia were to study only its laws, he would be utterly incapable of understanding what we were complaining about. The hidden political manipulations of the courts…the absurdly broad application of several deliberately vague sections of that code…
[F]or the most part the common rules of criminal procedure are observed: charges are laid within the prescribed period following arrest…Indictments are properly delivered, the accused has a lawyer and so on. In other words, everyone has an excuse: they have all observed the law.
What was on display in Trump’s New York legal proceedings is not the American legal system functioning as designed. It’s a political perversion of the American legal system. To criticize the perversion is not to attack anything decent in the American Legal system. It is to attack the political rot now threatening the American legal system.
Until that rot is excised, as team Trump-Hate is quick to tell you: If you’ve got anything to lose, you’d better watch what you say.
