Yes, Trump was guilty as charged. But the prosecutor perverted democratic principles by bringing this politicized and legally tenuous case in the first place.
I assume you are saying the case was necessary because it corrected misdeeds that affected the 2016 election. Couple of responses. I don't think it is healthy for democracy to relitigate election results post-hoc through the courts, other than the normal post-election, pre-certification litigation that is authorized. There are loads of dirty dealings in politics to keep information from the voters, trying to regulate this through the criminal justice process is problematic. Second, the hush money payment itself, which is what kept the information from the voters, was not illegal and was not the alleged crime here. It was the clunky effort to cover it up through Trump's business. If he had just written Daniels a personal check, it is hard to see how this is a crime at all. The idea that Trump would have been making an illegal campaign violation is an unproven and disputed legal theory that was unsuccessful with John Edwards. You don't bring untested legal cases against a candidate for president. Third, if there was a campaign finance violation, it was the job of the FEC or federal prosecutors to police it, not the Manhattan DA. The Southern District of NY could have brought the case against Trump after he left office, but declined to do so, probably because of the many prudential concerns about this case that I have raised (and that was prior to Trump becoming a candidate -- these concerns only increased once he became a candidate when Alvin Bragg made the decision to indict him).
Thank you, for your reply, David. I appreciate it and the further in depth reasoning you’re sharing and your points of”loads of dirty dealings in politics to keep information from the voters “, and the hush money part by itself not being illegal. It’s so hard to sift through the chaff and find the kernel. You’ve given us and me lots and lots to be aware of as we try to find kernels growing in the vast fields ahead of November’s harvest. Thank you.
By the time Trump was finished reimbursing Michael Cohen and disguising the payments as "legal expenses," he had committed $450K in tax fraud. While the jury may have had reasonable doubts about the election finance violations, especially the question of whether a state can enforce a federal election law, the tax obfuscation was likely determinative in their thinking. The trial had the additional benefit of exposing once again the moral and ethical corruption in how Trump conducts his life and his business. Bragg took his time in filing the charges so that he could assemble the strongest possible case.
I would agree with you about the Letitia James financial fraud case. She campaigned on holding Trump to account and then decided to prosecute him on business practices to which the New York authorities had turned a blind eye for years. That does seem very political.
Jack Smith's January 6th case is defective in relying on the "obstruction of official proceedings" subsection in a statute passed to prevent the destruction of documents in financial fraud cases (the Enron case being the impetus). The Supreme Court is likely to disallow that interpretation. As for Jack Smith being a career prosecutor, that is most certainly true, although he seemed to be delighted to bring an election finance case against our own Democratic presidential candidate John Edwards (under the direction of Republican George Holding), a case that he lost decisively in a jury trial.... in start contrast to the result that Alvin Bragg got in NYC. There was plenty of room for reasonable doubt in the Edwards case, as the jury rightly recognized. Not so in Manhattan.
I regret that the hush money case may further energize the MAGA base, but as Judy noted below in her brilliantly concise "yeah-but", it had to be pursued. No one is above the law.
A couple of thoughts (and material that didn't make it into the final post due to length).
The tax element of this case is bizarre. The false records inflated Cohen's income so taxes were overpaid to New York State, not underpaid. I have read this is still a violation of the business record falsification laws, but there is just no way a case would be brought for just the overpayment of taxes. I did not read the closing argument, but the news coverage suggested that the core theme of the prosecution was that the documents were falsified to impact the 2016 election and the tax issues seem to have been barely mentioned.
As for the Jan. 6 federal case, you are correct that the Supreme Court might narrowly interpret the statute so that Smith can't use it, but he still has two other federal laws to rely on in that case. The strongest is the "fraud against the United States" law (18 USC 371). It is also worth noting that the judge in the New York case told the jury that it did not have to find that Trump committed a federal campaign finance violation beyond a reasonable doubt (which was the issue that went to the jury in the Edwards case). It only had to find beyond a reasonable doubt that he falsified records for the purpose of committing a campaign finance violation - big difference.
The phrase "no one is above the law" doesn't really get us very far in thinking about this issue. Legal violations occur probably millions of times a day in this country. The job of a prosecutor is to determine which legal violations should be investigated and after the investigation, which merit prosecution. My argument is that in light of the democratic principles that are triggered by prosecuting a candidate for president during a campaign, this prosecutor abused his discretion.
Wow, David, thanks for taking the time to respond to my layperson's ruminations. My immediate thought is that while you and I might fuss about the legal niceties, the citizen's jury plainly saw what was in plain sight, that Trump had as always attempted to deceive the American people as well as target interstices in the law to further his duplicities. I thought Merchan's jury instructions were correct especially with the background knowledge that Michael Cohen had previously been prosecuted and pled guilty to the pertinent campaign finance violations that clearly had occurred, charges that were in fact brought under the Trump DOJ. No need for the jury to spend time on that since the accounting misdemeanor was in furtherance of a crime whether or not that crime had been formally adjudicated in connection with Trump himself. It does not behoove us to reinforce the MAGA narrative that the legal system is inherently corrupt and that Bragg's case was politically inspired or that the presiding judge was a partisan Democrat. Amongst ourselves we can dispute whether bringing the case was a good idea. If Trump should win in November, and rains retribution on the Democrats and Joe Biden through a weaponized DOJ under his own acting Attorney General not approved by the Senate, I may come to agree with you. Samuel Alito may have been prescient in arguing that the Supreme Court needs to get the presidential immunity decision right rather than simply rendering an ad hoc ruling at the request of Jack Smith.
While David makes a good point that his case may have been a legal reach, it sounds like the jury had no problem in reaching a verdict without much hesitation or uncertainty, and on the sum total of all 34 counts, despite Mr. Trump having had a legal dream-team and unlimited resources at his disposal.
In Donald Trump's orbit, the rule of law and legal principles are left at the doorstep of transactional gains and winning at any cost. The larger threat to democracy between possible prosecutorial overreach and the cult of Donald Trump is, by far, the latter. He and his allies are far down the rabbit hole of alternate facts and delusions, and it is him, and they, who are mainly responsible for the unravelling of the threads of our legal system and democratic norms.
While there is some argument to be made that this prosecution may impact our future presidential campaigns, none of these are likely to include a serial liar, attempted insurrectionist, and hush money conspirator. In trying to come up with a good analogy to David's concern for the precedent set by this prosecution, the thought occurred to me that if your house is on fire and you have a "no trespassing" sign on the front door, would you expect the fire department to stop short of entering the house to battle the blaze? Should the risk of legal repercussions and setting a precedent that firefighters could become viewed as overzealous trespassers by future 911 callers outweigh the greater good that taking protective (but possibly legally questionable) action would accrue? Small fires need to be extinguished before they expand to larger fires, and fires only understand water.
Wouldn't it make the whole Trump prosecution endeavor worthwhile if Judge Merchan, in trying to thread the needle, sentenced Donal Trump to community service in an immigration processing center, on a board of elections, and teaching a high school civics class...now that could go a long way toward preserving democratic principles.
Thank you Glenn for being a loyal reader and thoughtful critic.
As I noted in the piece, the guilty verdict does not cleanse this case of either its political stench or its legal infirmities. I agree that Trump was guilty of the convoluted legal violations the district attorney concocted. I think it is at least 50/50 that the verdict is overturned on appeal and that is just not good enough when the criminal justice system is being used in a way that could so substantially impact politics.
I really disagree with the logic that the end of preventing Trump's cult from winning power justifies the means of using a politicized criminal prosecution to damage his chances of winning the election. Based on this reasoning, it would be ok for Biden to throw him in Guantanamo to avoid the damage he might cause to the country if he wins the election.
My concern is not about the precedent being set for how future presidential candidates are treated (though that is not an insubstantial issue). My main concern is about the breach of fundamental principles that are cornerstones of our democracy. If they can be cast away in this case, they can be cast away in any case and then chip by chip they are gone. Go ask folks in Hungary what that looks like.
I have a yeah-but. Isn't it also an abuse of democracy NOT to pursue this case?
Thank you Judy.
I assume you are saying the case was necessary because it corrected misdeeds that affected the 2016 election. Couple of responses. I don't think it is healthy for democracy to relitigate election results post-hoc through the courts, other than the normal post-election, pre-certification litigation that is authorized. There are loads of dirty dealings in politics to keep information from the voters, trying to regulate this through the criminal justice process is problematic. Second, the hush money payment itself, which is what kept the information from the voters, was not illegal and was not the alleged crime here. It was the clunky effort to cover it up through Trump's business. If he had just written Daniels a personal check, it is hard to see how this is a crime at all. The idea that Trump would have been making an illegal campaign violation is an unproven and disputed legal theory that was unsuccessful with John Edwards. You don't bring untested legal cases against a candidate for president. Third, if there was a campaign finance violation, it was the job of the FEC or federal prosecutors to police it, not the Manhattan DA. The Southern District of NY could have brought the case against Trump after he left office, but declined to do so, probably because of the many prudential concerns about this case that I have raised (and that was prior to Trump becoming a candidate -- these concerns only increased once he became a candidate when Alvin Bragg made the decision to indict him).
Thank you, for your reply, David. I appreciate it and the further in depth reasoning you’re sharing and your points of”loads of dirty dealings in politics to keep information from the voters “, and the hush money part by itself not being illegal. It’s so hard to sift through the chaff and find the kernel. You’ve given us and me lots and lots to be aware of as we try to find kernels growing in the vast fields ahead of November’s harvest. Thank you.
While I disagree with your position, I am glad you have the opportunity to make your case.
By the time Trump was finished reimbursing Michael Cohen and disguising the payments as "legal expenses," he had committed $450K in tax fraud. While the jury may have had reasonable doubts about the election finance violations, especially the question of whether a state can enforce a federal election law, the tax obfuscation was likely determinative in their thinking. The trial had the additional benefit of exposing once again the moral and ethical corruption in how Trump conducts his life and his business. Bragg took his time in filing the charges so that he could assemble the strongest possible case.
I would agree with you about the Letitia James financial fraud case. She campaigned on holding Trump to account and then decided to prosecute him on business practices to which the New York authorities had turned a blind eye for years. That does seem very political.
Jack Smith's January 6th case is defective in relying on the "obstruction of official proceedings" subsection in a statute passed to prevent the destruction of documents in financial fraud cases (the Enron case being the impetus). The Supreme Court is likely to disallow that interpretation. As for Jack Smith being a career prosecutor, that is most certainly true, although he seemed to be delighted to bring an election finance case against our own Democratic presidential candidate John Edwards (under the direction of Republican George Holding), a case that he lost decisively in a jury trial.... in start contrast to the result that Alvin Bragg got in NYC. There was plenty of room for reasonable doubt in the Edwards case, as the jury rightly recognized. Not so in Manhattan.
I regret that the hush money case may further energize the MAGA base, but as Judy noted below in her brilliantly concise "yeah-but", it had to be pursued. No one is above the law.
Thank you Eric for these thoughtful comments.
A couple of thoughts (and material that didn't make it into the final post due to length).
The tax element of this case is bizarre. The false records inflated Cohen's income so taxes were overpaid to New York State, not underpaid. I have read this is still a violation of the business record falsification laws, but there is just no way a case would be brought for just the overpayment of taxes. I did not read the closing argument, but the news coverage suggested that the core theme of the prosecution was that the documents were falsified to impact the 2016 election and the tax issues seem to have been barely mentioned.
As for the Jan. 6 federal case, you are correct that the Supreme Court might narrowly interpret the statute so that Smith can't use it, but he still has two other federal laws to rely on in that case. The strongest is the "fraud against the United States" law (18 USC 371). It is also worth noting that the judge in the New York case told the jury that it did not have to find that Trump committed a federal campaign finance violation beyond a reasonable doubt (which was the issue that went to the jury in the Edwards case). It only had to find beyond a reasonable doubt that he falsified records for the purpose of committing a campaign finance violation - big difference.
The phrase "no one is above the law" doesn't really get us very far in thinking about this issue. Legal violations occur probably millions of times a day in this country. The job of a prosecutor is to determine which legal violations should be investigated and after the investigation, which merit prosecution. My argument is that in light of the democratic principles that are triggered by prosecuting a candidate for president during a campaign, this prosecutor abused his discretion.
Wow, David, thanks for taking the time to respond to my layperson's ruminations. My immediate thought is that while you and I might fuss about the legal niceties, the citizen's jury plainly saw what was in plain sight, that Trump had as always attempted to deceive the American people as well as target interstices in the law to further his duplicities. I thought Merchan's jury instructions were correct especially with the background knowledge that Michael Cohen had previously been prosecuted and pled guilty to the pertinent campaign finance violations that clearly had occurred, charges that were in fact brought under the Trump DOJ. No need for the jury to spend time on that since the accounting misdemeanor was in furtherance of a crime whether or not that crime had been formally adjudicated in connection with Trump himself. It does not behoove us to reinforce the MAGA narrative that the legal system is inherently corrupt and that Bragg's case was politically inspired or that the presiding judge was a partisan Democrat. Amongst ourselves we can dispute whether bringing the case was a good idea. If Trump should win in November, and rains retribution on the Democrats and Joe Biden through a weaponized DOJ under his own acting Attorney General not approved by the Senate, I may come to agree with you. Samuel Alito may have been prescient in arguing that the Supreme Court needs to get the presidential immunity decision right rather than simply rendering an ad hoc ruling at the request of Jack Smith.
While David makes a good point that his case may have been a legal reach, it sounds like the jury had no problem in reaching a verdict without much hesitation or uncertainty, and on the sum total of all 34 counts, despite Mr. Trump having had a legal dream-team and unlimited resources at his disposal.
In Donald Trump's orbit, the rule of law and legal principles are left at the doorstep of transactional gains and winning at any cost. The larger threat to democracy between possible prosecutorial overreach and the cult of Donald Trump is, by far, the latter. He and his allies are far down the rabbit hole of alternate facts and delusions, and it is him, and they, who are mainly responsible for the unravelling of the threads of our legal system and democratic norms.
While there is some argument to be made that this prosecution may impact our future presidential campaigns, none of these are likely to include a serial liar, attempted insurrectionist, and hush money conspirator. In trying to come up with a good analogy to David's concern for the precedent set by this prosecution, the thought occurred to me that if your house is on fire and you have a "no trespassing" sign on the front door, would you expect the fire department to stop short of entering the house to battle the blaze? Should the risk of legal repercussions and setting a precedent that firefighters could become viewed as overzealous trespassers by future 911 callers outweigh the greater good that taking protective (but possibly legally questionable) action would accrue? Small fires need to be extinguished before they expand to larger fires, and fires only understand water.
Wouldn't it make the whole Trump prosecution endeavor worthwhile if Judge Merchan, in trying to thread the needle, sentenced Donal Trump to community service in an immigration processing center, on a board of elections, and teaching a high school civics class...now that could go a long way toward preserving democratic principles.
Thank you Glenn for being a loyal reader and thoughtful critic.
As I noted in the piece, the guilty verdict does not cleanse this case of either its political stench or its legal infirmities. I agree that Trump was guilty of the convoluted legal violations the district attorney concocted. I think it is at least 50/50 that the verdict is overturned on appeal and that is just not good enough when the criminal justice system is being used in a way that could so substantially impact politics.
I really disagree with the logic that the end of preventing Trump's cult from winning power justifies the means of using a politicized criminal prosecution to damage his chances of winning the election. Based on this reasoning, it would be ok for Biden to throw him in Guantanamo to avoid the damage he might cause to the country if he wins the election.
My concern is not about the precedent being set for how future presidential candidates are treated (though that is not an insubstantial issue). My main concern is about the breach of fundamental principles that are cornerstones of our democracy. If they can be cast away in this case, they can be cast away in any case and then chip by chip they are gone. Go ask folks in Hungary what that looks like.
Let's talk about this more on a bike ride.