Now that both sides have rested in President Trump’s so-called Hush Money Case, we will have to wait at least a week before we learn of the jury’s verdict.
Having followed all the testimony – and related issues – I personally believe the correct verdict is “not guilty.” Whether Trump was the mastermind of a criminal act or not criminally culpable is unknown. The hard evidence – the various exhibits presented by Manhattan Prosecutor Alvin Bragg do not close the loop. The various documents and text messages show the involvement of Michael Cohen, David Pecker, and Allen Weisselberg – but no direct link to Trump. (I omitted Stormy Daniels since her testimony – as salacious as it was – was irrelevant and inappropriate.)
The decision to bring this case at this time wreaks of politics. The alleged crime – a misdemeanor — happened eight years ago and the Statute of Limitations had expired. Bragg used a unique and dubious interpretation of the law to get around the Statute. If the misdemeanor can be tied to a criminal felony, the earlier Statute can be set aside.
In a legal nuance that can only be rational in the Dungeons and Dragons world of lawyering, Bragg argues that he does not have to reveal or point to that “other” felony. He even argued against doing so during negotiations over the establishment of jury instructions. Essentially, he says that the jury can assume the other crime on their own.
I do not claim to understand it, but it just does not seem right to me. Apparently, I am not alone. CNN’s legal analyst Elie Honig said that Bragg’s interpretation of the law pushed prosecutorial appropriateness to the very edge. Fareed Zakaria put it bluntly, saying that this case would not be going on if the defendant was anyone other than Donald Trump. Others have suggested that this case would never have been pursued anywhere in America except New York City – and that speaks to the politics. It is a case that was deemed unworthy of prosecution by New York federal prosecutors appointed by both Trump and later by Biden.
Then there is that matter of the judge and jury pool. In filing his case, Bragg well understood the chance of getting a Democrat judge. But Bragg was not taking any chances. He circumvented the usual lottery system for assigning judges and handpicked Judge Juan Merchan – a person deeply involved in Democrat politics, with a daughter who is currently raising money for Biden.
Bragg also knew – based on polling and the 2020 presidential vote – that the jury pool was overwhelmingly Democrat — and so would the final jury. These are folks who are not only Democrats, they voted against Trump. They did not want him to become President. It is more than likely that many of the jurors have very strong anti-Trump feelings.
Bragg also knew that getting an indictment from a grand jury is a given for any case a prosecutor wishes to pursue. It is so easy that they say that a prosecutor can get a grand jury to indict a ham sandwich.
The political culture of the jury pool is important in any case – but never more than in a case that is ALL about politics. This is a case motivated by the partisan politics of the day. It is essentially meddling in a presidential election by creating arbitrary political narratives …negative news stories … and preventing a presidential candidate from campaigning, fundraising and it limits his First Amendment rights with gag orders. That is election interference no matter what one thinks of Trump or the charges.
The jury will be asked to determine beyond a reasonable doubt Trump’s knowledge of the details of the internal accounting of the payments. Yes, he signed the checks – and he certainly knew he was paying hush money (not illegal), but that is not proof that he knew how the checks would be recorded in the books – in the event that it is criminal. (Even in my small business, I signed lots of checks that were presented and recorded by my secretary or accountants. I naturally assumed they were doing that part properly.)
There is yet another legal hurdle for the jury. It is the issue of intent. They must believe beyond a reasonable doubt that Trump knowingly intended to commit the alleged crime. That is no small evidentiary challenge for Bragg. From what I could garner from the testimony, I did not see Bragg establishing that.
If this case had followed normal legal procedures, at worst it might have been handled as a misdemeanor case by the Federal Election Commission – and resulted in a civil fine. Based on the decision by the FEC and the federal prosecutors in New York not to pursue the case, it should have been dropped and never resurrected by Bragg. There is a reason why virtually every lawyer and former prosecutor on television has said that this case was the weakest of all the charges facing Trump today. No kidding. It is a trumped up case – no pun intended.
The entire case depends on whether you believe “beyond a reasonable doubt” that Michael Cohen is telling the truth. His obsessive hatred and bitterness clearly establish a motivation to lie. And his history of lying to achieve what he wants should be evidence enough to have more than a reasonable doubt in anything he says. He even misrepresented the facts in his court testimony.
Because of the political culture of the venue, I do not believe an acquittal is possible. But I do believe that there can be enough jurors who will see all the reasons for reasonable doubt – and maybe even two or three who are not anti-Trump Democrats – to result in a hung jury.
Bragg could then refile the case, but any trial would happen long after the election. I think he would not. Winning in the future would be no better than today – and his obvious political motivation would be gone. And if Trump were to win reelection, Bragg could not file the case until he left office four years later.
I have to believe that even in New York, there are enough folks who can set aside political biases to reach a just and fair decision in this case – hopefully, at least one. However, if the jury does convict on any of the charges, then the trial and final determination would come long after the November presidential election. The case would be locked up in the appeal process. There are more than sufficient grounds for an appeal, but I will deal with that issue if there is a conviction.
So, there ‘tis.