The Donald Trump verdict is a travesty of justice. I say this not as a Trump-lover—I don’t love any politician, preferring transactional relationships regarding policy—but as a lover of the rule of law. From the moment that Manhattan DA Alvin Bragg chose to indict Trump for nearly decade-old offenses that Bragg himself had previously declined to prosecute, the circus came to town. The jury’s findings of guilt on all 34 counts of falsifying business records are almost anticlimactic, putting the cherry on top of multiple scoops of misused legal authority.
You can read elsewhere analyses of the allegations about how the former president funneled business funds through his convicted-felon consigliere Michael Cohen to his mistress Stormy Daniels so that she wouldn’t spill the beans on their affair in the midst of the 2016 campaign. As I understand it, the business-records violations became felonies because they’re in furtherance of a campaign-finance violation—this is what allowed Bragg even to bring charges, given that the statute of limitations would otherwise have run out on the first, underlying actions. But you wouldn’t get this from following the trial, which left most observers scratching their heads at what the crimes were that Trump had supposedly committed.
Mind you, I didn’t follow the trial that closely, either. Because that fact pattern is what lawyers call a stretch, and because it was so blatantly Bragg’s politicized persecution of his party’s bête noire, the legal play-by-play seemed beside the point. Salacious details notwithstanding, I couldn’t get myself worked up about the minutiae of long-ago accounting practices relating to a nondisclosure agreement. But I do have a JD and work in legal policy, which should give me a better understanding of what’s going on. And yet, I still don’t understand these 34 convictions.
What I do know is that the convictions are unlikely to stand on appeal, for reasons that Hugh Hewitt enumerated, including:
The charging document didn’t specify the “second crime”;
Judge Juan Merchan had made small contributions to the Biden campaign and anti-Trump organizations, but didn’t recuse himself;
Judge Merchan didn’t allow former FEC chairman Brad Smith (a friend and sometime professional collaborator of mine) from testifying as an election-law expert;
Judge Merchan’s jury instructions were confusing, such that the jury had to ask him to read parts back more slowly so they could transcribe them (he wasn’t allowed to give them his carefully crafted 55-page document, apparently standard practice in New York state courts, which is itself a problem);
Judge Merchan didn’t instruct the jury on the elements of the campaign-finance offense or any other second offense—and famously said that if jurors disagreed as to what that second crime was but were still unanimous that there was a second crime, that would be enough to convict (which, again, may be allowed under New York law but adds to the fishiness of the whole endeavor).
At the end of the day, Trump won’t go to jail—not for these charges—but the New York process continues to taint the other, more serious prosecutions that the former president faces, for which he almost certainly won’t be tried before the election. And it continues to taint the election itself, though not necessarily in Democrats’ favor. After all, Trump’s standing in opinion polls improved after Bragg’s indictment, turning what was supposed to be a competitive Republican primary into a coronation. And these convictions are likely already factored into voters’ perceptions.
It remains to be seen whether, in the swing states, the number of independents and onetime NeverTrumpers now determined to vote for Trump outnumbers the swing voters who simply won’t vote for a convicted felon, regardless of any accompanying details.
But it should never have come to this. And for that I blame not so much the jurors, but the DA and the judge.
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