On balance, the prosecution of Donald Trump in New York did not look likely to succeed.
The prosecution had to show that certain business records were falsified at the direction of or on behalf of the defendant, and falsified for a further unlawful purpose.
That was a lot for a prosecution to prove – especially when there is no documentary admission that the defendant said “I direct that these records be falsified” and “I also direct that those records should be falsified for this ulterior wrongful purpose”.
What made such a prosecution even more difficult was that a key prosecution witness was a self-confessed liar with a self-confessed grudge.
And what made such a prosecution even more difficult than that is that the jury verdict had to be unanimous.
Regardless of the celebrity – or notoriety – of the the defendant in this particular case, these general features made this look like an ambitious prosecution.
But.
The prosecution pulled it off.
The prosecution were able to satisfy the unanimous jury that the records were falsified at the direction of or on behalf of Trump for the unlawful purpose of affecting an election. The prosecution was able to corroborate the evidence of its key witness.
Overall, and again regardless of the identity of the defendant, it was an impressive piece of lawyering.
And as Joel Taylor remarked on Twitter, it was also an impressive piece of jurying.
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Yet it must be said that it was an unimpressive piece of defending.
Of course, Trump had the right – indeed, as an American, a constitutional right – not to give evidence.
And, of course, it was open to the defence to test the prosecution case without putting forward a positive account of the facts – especially in an elaborate and complicated case like this.
But one gained a sense in this case that a wiser defendant would have allowed the defence to adopt a different approach.
Yes: Michael Cohen, the self confessed liar and grudge holder, could be attacked in respect of his credibility.
But when the prosecution has been careful to corroborate almost all the material points in his evidence, then attacking Cohen’s credibility may not be sufficient.
The defence strategy here was not hopeless – it could have worked had the jury become preoccupied with Cohen – but it was a risky one to adopt.
The defence really had to put forward an overall positive explanation for the sequence of documented communications, authorisations and payments that the prosecution put before the jury – an explanation more plausible (and lawful) than the (unlawful) explanation advanced by the prosecution.
An explanation that would, in essence, raise reasonable doubts that that the prosecution version of events would be the true one.
And it appears that the defence did not do so, leaving the jury with only one explanation that covered the mass of documentation that fraudulent records were created to disguise unlawful payments: the prosecution’s explanation.
Trump and his lawyers wanted to tell the story of a corrupt prosecution and a dishonest witness, but the story they really needed instead to tell was that which explained the entirety of the evidence before the jury.
They ended up telling the wrong story.
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Previously I have pointed out that a court hearing – a trial – is where Trump is a fish out of the water:
What works for Trump in one, well-versed context does not work for him in another.
One can see why, among other reasons, he wants to put off the other court cases as long as possible, even if he can weaponise them for fund-raising and campaigning. Trials are a thing he cannot dominate by his usual strength of will and cunning alone.
(This also may be related to his aversion, when in office, of committing troops to combat situations – another means by which he would lose control of events and narratives.)
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Because Trump cannot win in court, he has to win outside of court.
Just like because he did not win the last presidential election, he has to win outside of the electoral college.
And he does this, of course, by discrediting the process – by attacking the very legitimacy of institutions.
This hyper-partisanship regarding “stolen” elections and “corrupt” courts is dangerous.
Legitimacy can be fragile, and if the legitimacy of democratic and judicial processes is undermined then a polity will quickly become unhappy and fractured.
For if people do not believe in the legitimacy of democratic and judicial processes then they will tend to find other, less peaceful ways of addressing their political concerns.
And this is where the political and judicial systems themselves need to mount a plausible defence.
Trump may not be the master inside a courtroom, but he is a formidable and politically lethal operator outside the courtroom.
As always, it is not enough for justice to be done, justice needs to be shown to be done.
Trump and his supporters are now mounting an outright attack on the legitimacy of political and judicial institutions.
It may not only be Trump that needs a good defence strategy.
As Donald Trump has been tried and found guilty by a jury of his peers in a court of law and not of some trivial offence, may individual States of the Union again seek to keep him off the ballot in November?
I formed the impression the Supreme Court only ruled on keeping him off the ballot whilst Trump awaited trial.
Do individual States set their own rules as to whether or not a convicted criminal may stand for office within their State?
They seem to do when it comes as to whom they allow to vote in Presidential elections.
In the realm of politics, Trump has to be defeated electorally. Legalistic devices will not be appropriate.
I do not disagree, but if individual States have voted in their State legislatures to not allow a candidate to stand in an election within the State, if convicted of similar offences to those of which Donald Trump has been found guilty and then regardless allow him on the ballot paper in November then that implies some curb on States’ rights.
And the current Republican Party is very hot on States’ rights in the aftermath of the Supreme Court striking down Roe v Wade.
That all should be equal before the law is part and parcel of what underpins and legitimises democracy in the USA and Trump has just had a taste of that.
While a little petard hoisting is good fun, there is no realistic possibility of removing Trump from the ballot for his first conviction.
SCOTUS has limited the ability of states to remove candidates from federal elections, see the decision against Colorado back in March.
Prior to that, SCOTUS ruled that states may not add or subtract eligibility requirements, they must use the ones in the constitution.
Historical precedent allows for a candidate to run for office before and after conviction, indeed even if incarcerated. As I understand it, typical sentences for falsifying business records do not involve incarceration absent aggravating factors.
From a political standpoint, the only states which could legislate to remove Trump (which I assume are states with Democratic governors, and Democratic majorities in all chambers) are states that Trump won’t win, therefore giving it no practical effect. It would lead to reprisals by red states, making the whole thing a huge mess.
Good point. I look forward to a response from someone familiar with the law on this.
Of course, SCOTUS doesn’t help itself in terms of the credibility/legitimacy of the US legal system, when Alito and Thomas have decided stare decisis no longer applies, and are tying Gordian knots in their logic to arrive at their desired, partisan outcomes.
(To say nothing of the ongoing jurisdictional overreach in the Fifth Circuit)
It seems inevitable that he will appeal.
On this side of the pond, appellate courts are very reluctant to interfere with a jury’s findings of fact and verdict.
Is the approach of appellate courts in the US similar or ultimately will the politics of judges determine the outcome?
This was my first take too, but like you, based on UK approach to appeals. Where does the appeal go? Does it remain in NY at the State level? Can it go beyond to the SC? One would expect Trump to try to expedite the appeal as much as he has tried to hinder and slow down his other cases.
I wonder whether anyone could explain the ‘unlawful purpose’ in more detail? Because clearly ‘influencing the outcome of an election’ can’t be an unlawful purpose in itself. Even if the felony was ‘lying to influence an election’ there would be very few politicians at left at large. Is there a specific offence that has been committed under US electoral law? Thanks.
From the judge’s instructions:
“Section 17-152 of the New York Election Law provides that 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 conspiracy to promote or prevent an election.”
“By Unlawful Means”
“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.”
“In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.”
“Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.”
So it seems that no-one can be sure what the jury decided. Did they decide that the unlawful means were the violation of the Federal Election Campaign Act, falsification of other business records, a violation of tax laws, or a combination of all three?
Thank you for this, Mr Green. Writing as a non-lawyer, and as a non-American (I am an Estonian national, living in Estonia), I think you have correctly dissected the case. – To convince the jury, it was advisable, as you say, for the defense to construct an alternative narrative. (1) Mr Trump said outside the court that he had never been physically intimate with Ms Daniels, that he did not even know Ms Daniels. Here, then, was a line of argument which had to be elaborated with some corroborative witness. (2) Mr Trump said in the street just outside the courthouse that it was not he, but some “accountant”, who was responsible for marking the various alleged hush-money payments as legal expenses. This, too, had to be elaborated for the jury, for instance by summoning the pertinent accountant as a witness. Finally, (3) Mr Trump, or someone on his team, made (perhaps outside the court) a concession and a claim. The concession was that Mr Trump was indeed worried in 2016 about the public discussion of sexual improprieties (improprieties not, then, involving Ms Daniels, with whom he was on his own telling never intimate, whom he on his own telling did not even know). The accompanying claim was that Mr Trump was not relevantly worried in 2016 about losing the election, but rather was relevantly worried in 2016 about distress which would be occasioned for his spouse Melania Trump née Klavs by various conceivable discussions of sex in the sensationalist and rabidly anti-Trump segment of the media. All this had to be elaborated for the jury. – My own guess is that the defense did not present the necessary alternative tripartite narrative because they saw the task to be hopeless. People, especially people dealing with the court system, can be thick and dim only up to a certain point. After that point, some appreciation – perhaps limited, perhaps faltering – of reality kicks in. (It is a bit like the defense of Sidney Powell against Dominion Voting machines or some Dominion employee, in a defamation suit. Ms Powell’s team had, in the end, some grasp of reality. So they did not try to deny that Ms Powell had alleged vote-tally inaccuracies in the Dominion machines. If my recall is accurate, they argued merely that Ms Powell’s allegations were so weird, so over-the-top, that no business customers of Dominion would have believed them.) – Where there is no way to construct a convincing alternative narrative, lawyers have to brace themselves for losing the case, moving to damage control. For the defense, damage control consisted in making the trial a circus, so that an exasperated judge would be goaded into some fatal mistake in law or procedure, with which he could be skewered when it was time to file for appeal. – Hats off, then, to a Man of the Hour, to a Hero of the Day, Judge Juan Merchan.
Thank you for this very good and usefully detailed comment.
Trump famously said on 23rd January 2016 he could “stand in the middle of Fifth Avenue and shoot somebody” and not “lose any voters.”. He should have used this in his defence, pointing out that, at the time, he had no fear that shocking revelations would damage his chances at being elected, so had no reason related to the election to pay a substantial sum later that year to hide a story.
If he had use that as his sole defence, I suspect he would not have been convicted, but by going after all aspects of the prosecution’s case he made himself look guilty.
Trump is a very dangerous individual, not because he is undermining democracy and state institutions for the sake of some political philosophy or creed, but rather he does it purely for his own personal unscrupulous, venal, selfish benefit. He cares nothing for the USA except how much he can enrich himself from it. In that, his life motivations have not changed in thirty years. That his closest advisors and Republican politicians are aiding and abetting him in this, clinging on to his amoral coattails, makes them beneath contempt and traitors to their own country and the Constitution they claim to defend. There is no better wager of lawfare in the US than Trump, until, as you point out, it actually goes to Court, where truth, evidence, witnesses, the law itself, have real tangible universal values.
I have a few comments about Donald Trump’s trial and conviction in New York state court; most of my remarks are in response to comments by other readers of the blog. I admit to some bias in favor of the prosecution, having been a prosecutor for over 25 years.
1. Any appeal by Trump goes to the NY Supreme Court, Appellate Division, 1st Department. (NY is divided into 4 appellate districts; 1st Department covers Manhattan.) A notice of appeal has to be filed within 30 days from sentencing. An appeal from the Appellate Division is to the Court of Appeals, NY’s highest state court. In Trump’s case, he would have to obtain a certificate granting leave to appeal to the Court of Appeals; the certificate can be granted by a judge of the Appellate Division or by a judge of the Court of Appeals.
2. If Trump’s appeals in the state courts present a federal constitutional claim, then Trump could seek review by the US Supreme Court. Statements by politicians and lawyers about intervention before sentencing by the US Supremes are simply ill-informed (and the lawyers should simply know better). Anything, sadly enough, is possible nowadays, but the jurisdictional statutes governing the US Supremes provide no basis for any action now.
3. One might initially think that Trump would want the appeal to be decided quickly. There’s no obvious reason, however, at this point why he’d want the case to move along at such a pace notwithstanding comments by his attorneys. If presumably, he’s out on bail pending appeal, when the case is decided (and assuming the convictions are affirmed), he’ll have to surrender to serve his sentence.
4. Izzythedram and Nicholas Wheatley in their comments of 1 June precisely describe the issue about the jury instructions. The statute criminalizes making a false entry in a business record with the intent to commit or to aid or conceal the commission of another crime. NY law, as far as I can discern, doesn’t require unanimity as to the other crime being furthered by the false entries. Indeed, one can be convicted of first degree falsifying business records even if the jury acquits you of the crime you intended to commit, etc. Some commentators have pointed out that in a prosecution for burglary under NY law (basically, unlawful entry of a building intending to commit a crime therein), the jury is only required to find that the defendant had a general intent to commit a crime, not that he intended to commit a specific crime. Thus, there was no requirement that the jury be unanimous as to the crime Trump intended to commit, etc. If there was no unanimity requirement as to that crime, there is, as the argument runs, no unanimity requirement on the “unlawful means” element in NY Election Law §17-152.
5. Article II, Section 1 of the US Constitution sets out the exclusive qualifications for the President. The States can not add additional qualifications. There is no bar against convicted felons running for President. As Riktol noted in his comment, there have been individuals running for President even though they were incarcerated at the time — Eugene Debs in 1920 and Lyndon LaRouche at various times from 1988 to 2004. The States, however, are free to prohibit convicted felons from running for state or municipal office. Riktol’s observation that “From a political standpoint, the only states which could legislate to remove Trump… are states that Trump won’t win” is correct in terms of politics, but rests on the assumption that the States can remove from the ballot otherwise qualified candidates for President. The US Supremes’ decision in Trump v. Anderson (the case coming out of Colorado), interpreting the Disqualification Clause of Section 3 of the 14th Amendment, makes clear that the States have no such power.
6. The standard for determining the sufficiency of the evidence is whether, viewing the evidence and all reasonable inferences drawn therefrom in favor of the prosecution, a reasonable trier of fact could find each element of the offense beyond a reasonable doubt. It appears that NY procedure also allows appellate judges to independently determine if the verdict is against the weight of the evidence.
7. “[W]ill the politics of judges determine the outcome?” (Jim Ryan’s comment) Trump has had several appeals in the 1st Department, stemming from the criminal trial and from the civil litigation brought by the NY Attorney General and tried last fall. He’s had some success, for example, obtaining a reduction in the amount of the appeal bond needed to stay the Attorney General’s execution of the judgment and having some aspects of the trial judge’s decision stayed pending appeal. But those decisions were garden variety exercises of the court’s equitable discretion when an appeal is pending. Maybe this is a long way of saying I have no idea how a judge’s politics will affect the outcome.
8. Riktol correctly notes that the typical sentence for falsifying business records does not involve incarceration. No one should be surprised, however, if Trump is sentenced to several months in jail.
9. Toomas Endel Karmo’s observations are generally spot on, but I have a different view on a couple of points. (a) Trump’s denial of ever meeting Daniels was belied by the photo of the two of them and by testimony from Rhona Graff, Trump’s longtime assistant, that Trump’s contact list included information for Daniels and McDougal. (b) A theory that a bookkeeper incorrectly marked the payments to Cohen as “legal expenses” runs aground on the fact that Trump had described the payments as “reimbursements” in his Office of Government Ethics report and in a stipulation filed in connection with his lawsuit against Daniels for violating the non-disclosure agreement. (c) Trump’s concern in 2016 about the disclosure of his encounter with Daniels was triggered by the disclosure of the Access Hollywood tape, a point on which Hope Hicks testified. The defense didn’t present the alternative narrative because there was no evidence to support the narrative.
10. When Alvin Bragg, the Manhattan District Attorney, announced the indictment of Trump last year, the commentariat derided the case as being inconsequential and questioned the ability of the DA’s office to successfully prosecute the case. The prosecutors’ skill and effort and Bragg’s comments after the verdict could only leave any prosecutor (or former prosecutor) with enormous pride.
11. “Cometh the hour, cometh the man.” America is fortunate that Judge Merchan was the man.,
Thank you for this detailed and helpful comment.