Why the former president is likely to be convicted.
Why the former president is likely to be convicted.
I t is highly likely that former president Trump will be convicted at his criminal trial in Manhattan. Here’s why.
First, with the help of Judge Juan Merchan and none other than Donald Trump, prosecutors from the office of elected progressive Democratic district attorney Alvin Bragg have effectively concealed what should have been fatal holes in their case.
The state is well aware of these holes and has thus cleverly created an illusion of mountainous evidence — which is why prosecutor Joshua Steinglass was able to hammer away at the jury for six hours in summation into Tuesday evening. The sleight of hand is that the mountain proves legal conduct. It seems illegal because the subject matter is sordid: paying off a porn star and a Playboy model during the 2016 election to maintain silence about extramarital affairs with Trump. But the payoffs were lawful consideration for lawful contracts.
It’s not hard for prosecutors to assemble prodigious proof of legal acts, even unsavory ones. The waves of evidence enable the prosecutors to numb the jury with the appearance of overwhelming guilt. The hope is that no one will notice the dearth of proof on what — outrageously in a state prosecution — has become the dispositive issue: In 2016 and 2017, when the NDAs were being negotiated and then Trump reimbursed his “fixer” Michael Cohen for the Stormy payoff, did Trump willfully violate the federal campaign-finance laws (which prescribe felony offenses that Bragg has no jurisdiction to enforce)?
In point of fact, there is not a shred of evidence that Trump was even thinking about FECA (the Federal Election Campaign Act) in 2016-17, much less willfully transgressing it — which, to establish, prosecutors need to prove beyond a reasonable doubt that Trump was aware of a legal duty to comply with FECA’s contribution limits and reporting requirements, yet intentionally violated them.
With Merchan’s help, and not much resistance from defense lawyers, Bragg’s team has shrewdly conflated two very different things: (1) the knowing and intentional burying of politically damaging information through NDAs, which is legal, and (2) the knowing and intentional flouting of FECA regulations — which would be illegal if prosecutors could prove it, but of which there is no evidence against Trump.
So why is Trump’s conviction so likely?
To begin with, the case is a constitutional travesty from its very foundations. The state penal statute invoked by Bragg is unconstitutional as applied to Trump under New York law.
Ordinarily, falsifying business records is a misdemeanor under New York penal law. The statute that enhances the offense into a felony requires proof of fraudulent intent to conceal “another crime.” New York’s constitution forbids such vague incorporation by reference; to be valid the statute would have to prescribe what other crimes trigger the felony enhancement. That is especially true in this case, in which Bragg (a) is claiming the other crime is a violation of FECA, for which Congress has vested the Justice Department and the Federal Election Commission with exclusive enforcement jurisdiction, and (b) is alternatively claiming the other crime is a misdemeanor violation of New York election law. In New York, misdemeanors have a two-year statute of limitations, and the potential penalty is less than a year’s imprisonment; yet Bragg is claiming that if one falsifies records (misdemeanor) to unlawfully influence an election (misdemeanor), the prosecutor can somehow inflate the crime into a felony with a four-year prison term and a six-year statute of limitations. If the business-records-falsification statute were intended to allow such a counterintuitive result, it was incumbent on the legislature to spell that out. Empire State lawmakers did not do so.
Then there is the indictment. It put the defense on no notice of what “other crime” Trump was alleged to have concealed. As I contended yesterday, this was not an oversight; Bragg knew it would be controversial to proclaim in clear terms the power and intention to enforce federal law — against a defendant whom the federal agencies with authority to prosecute investigated and as to whom they decided, for sound legal reasons, not to bring charges. The failure to provide a defendant with notice of the charges in the indictment violates the federal Constitution — and it strongly suggests that the grand jury did not find probable cause of the other crimes that Bragg now alleges (there is no “other crime” pled in the indictment).
On this point, Merchan has aided and abetted Bragg, to the point that it was not until summation, after six weeks of trial, that state prosecutors were finally clear and full-throated in urging that Trump should be convicted for violating federal law. That would be astounding in any case but is mind-boggling in the first-ever criminal prosecution of a former American president (who, not coincidentally, is the Republican presidential nominee and thus Bragg’s partisan political adversary).
Without being limited to the charges in the indictment, as prosecutors are supposed to be, they presented the case to the jury as if the charge were conspiracy to influence the 2016 election by burying politically damaging information. To say that this conspiracy appears nowhere in the indictment does not explain the half of it. It is not a crime to conspire to influence an election unless one does so by unlawful means (that’s the afore-described New York misdemeanor), and there is nothing unlawful per se about burying politically damaging information.
So how did Bragg get over those two hurdles, which should have been insuperable? With the help of Merchan and, yes, Trump.
Let me preface this by saying that the fix is in here, so maybe it didn’t matter what the defense did in this case. Still, strategically speaking, Team Trump has presented one of the most ill-conceived, self-destructive defenses I have ever seen in decades of trying and analyzing criminal cases. The reason for this is clear: Trump insisted that his lawyers subordinate his defense at trial to the political narrative he wants to spin in the 2024 campaign. In this instance, the legal and political strategies cannot be synced. Hence, Trump is helping Bragg get his coveted convictions.
Against the weight of evidence and common sense, Trump insists on telling voters that Stormy Daniels and Karen McDougal — respectively, the porn star and Playboy model who quite credibly allege to have had flings with Trump circa 2006 — are lying. But no one with even passing familiarity with Trump’s combative and parsimonious nature would believe for a second (a) that he would agree to pay $130,000 to Stormy and $150,000 to McDougal if they were falsely claiming to have had affairs with him, or (b) that Cohen would have paid Stormy, and Trump’s pal David Pecker would have paid McDougal, unless Trump had green-lighted the payments and assured them of repayment. Since Trump knows that, if he acknowledges being complicit in the payment arrangements, voters will conclude his denials of the affairs are lies, Trump has decided he must distance himself from the NDA payments.
Politically speaking, this is dumb because voters long ago made up their minds about Trump’s extramarital affairs, and if he admitted them at this point, he’d merely be admitting what is notorious and not credibly deniable.
Legally speaking, Trump’s gambit is disastrous. It makes no sense in a criminal courtroom for a defendant to deny his complicity in legal conduct when there is daunting evidence that he was complicit up to his neck. The prosecutors framed the case to the jury as a criminal conspiracy to bury damaging information. That’s not a crime, and NDAs are legal. But rather than go with that, his best defense, Trump has acted guilty: As if a candidate’s suppression of negative information, rather than routine, is criminally condemnable, and as if the NDAs are radioactive — the diabolical compacts of Cohen and Pecker from which he must stay a millions miles away (a choice at which the evidence is having a hearty laugh). For Bragg, this is a gift from prosecutorial heaven.
Then there is the reimbursement of Cohen. Trump lawyer Todd Blanche actually looked the jury in the eye in his opening statement and asserted that Trump did not reimburse Cohen. But Trump is on record several times stating that he reimbursed Cohen. He tweeted it when he was temporarily seeking to enforce the NDA against Stormy. He stated it unambiguously in a financial disclosure form he filed as president. There is a document in the handwriting of Trump Organization CFO Allen Weisselberg proving that part of Cohen’s compensation in 2017 was reimbursement for the Stormy payment in 2016. And it makes zero sense that Cohen would go into his pocket 130 large unless Trump assured him he’d be paid back.
Why deny the undeniable? Because Trump knows that admitting the reimbursement is tantamount to admitting the sex with Stormy. Politically, he resists doing that because he has always denied it and can’t bring himself to concede error — not in the Trump DNA. But the elevation of his political needs (or, better, his ill-considered conception of them) has utterly undermined his defense. A defense lawyer who consciously misleads the jury in the opening statement and then gets blown up by evidence as soon as the prosecution starts presenting its case loses precious credibility. More to the point, since the NDAs were legal, the reimbursement of Cohen was legal; ergo, there was no rational reason, legally speaking, to deny it.
The roads to American prisons are paved with what in the trade we call “false exculpatory statements.” The reason is simple: People suspected of crime don’t lie unless they are trying to cover up wrongdoing. By lying about the reimbursement of Cohen, Team Trump gave immense help to the prosecutors’ plan to convince the jury that scheming to suppress politically damaging information is a crime. Why, the jury has to be wondering, would Trump lie about something so stupid unless he was worried about being implicated in “the conspiracy”?
Of course, none of this would matter if the jury understood that (a) paying NDAs is not a campaign expenditure under FECA that triggers spending limits and reporting requirements, and (b) there is no evidence that Trump — or, for that matter, Cohen and Pecker — were even thinking about FECA, much less conspiring to flout it, when the NDAs were paid and when Cohen was reimbursed. FECA was not an issue until the FEC started asking questions in early 2018 — long after the NDAs were negotiated, and weeks after the last reimbursement payment to Cohen. It is not possible to prove beyond a reasonable doubt that Trump willfully intended to violate FECA if there’s no indication that he even thought about it at the relevant time.
This is where the major conspiracy in the case, the one between Bragg and Merchan, comes in.
Listening to the presentation of evidence and the prosecutor’s marathon summation, the jurors were undoubtedly convinced that prosecutors do not have to prove the FECA violation to find Trump guilty. Rather, the judge and prosecutors have led jurors to believe that the violation of FECA is an established fact in the case — almost as if Merchan has taken judicial notice of it. It’s as if the jury need not concern itself with FECA.
Bragg prosecutors, aided and abetted by Merchan, pulled this off by telling the jury, again and again and again, that Cohen pled guilty to two FECA felonies, and that Pecker entered a non-prosecution agreement with the Justice Department because he feared prosecution. Not to beat a dead horse yet again, but this evidence is utterly inadmissible against Trump. Yet, Merchan has allowed prosecutors to tell the jury about the pleas and non-prosecution agreement dozens of times.
Mind you, the pleas and non-pros deal happened in 2018. Not only are they not proper evidence against Trump; they do not establish evidence that FECA was part of the calculus when the NDAs were paid and when Trump’s business records were generated. Those should be insurmountable hurdles for the prosecutors. Thanks to Merchan, they are barely bumps in the road.
That is why, sometime this week, probably sooner rather than later, former president Donald Trump, the de facto Republican presidential nominee, will be convicted of multiple felonies.