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John G. Malcolm
John G. Malcolm is the vice president for the Institute for Constitutional Government and also directs Heritage’s Meese and Simon centers at The Heritage Foundation . http://www.heritage.org/
PA Pundits – International
Former President Donald Trump was convicted of 34 felony counts when the jury rendered its verdict Thursday, the first time a former president (also the presumptive Republican presidential nominee) has been convicted of a crime.
The Rubicon has been crossed, and many people have weighed in with reactions, including The Heritage Foundation.
Trump will appeal, following what he called “a rigged, disgraceful trial.”
“We will fight for our Constitution,” the former president said. “This is long from over.”
Sentencing before Judge Juan Merchan is scheduled for July 11, just four days before the Republican National Convention opens.
The 34 charges in this case all related to invoices that were submitted to—and payments made by—Trump in 2017, after he had been elected president. The invoices were submitted by his then-personal attorney, Michael Cohen, who claimed in testimony that they were designed in part, and with Trump’s knowledge, to reimburse Cohen for payments he had made to Stormy Daniels, a well-known adult film actress.
Cohen claimed that the payments were made again with Trump’s knowledge, to stop Daniels from talking about an alleged sexual liaison she had with Trump in 2006 (which the former president denies) in the run-up to the 2016 presidential election.
The invoices and payments were booked on the Trump Organization’s records as legal expenses, which, Manhattan District Attorney Alvin Bragg alleged, was false.
Causing a false entry to be made in a company’s records is a misdemeanour offence in New York, subject to a two-year statute of limitations. The statute says, however, that if the false business entry was made for the purpose of concealing the commission of, or intent to commit, “another crime,” then it is a felony offence, which has a longer statute of limitations.
And that is what Bragg, who crowed to voters when he was seeking the Democratic nomination to be DA that he had “sued Trump more than a hundred times.”
Although this was a state prosecution, Bragg brought in Matthew Colangelo, a high-ranking official from the Justice Department, to serve as lead prosecutor in the case. Colangelo previously had served as acting associate attorney general, the third-highest position within DOJ.
There are myriad issues that Trump’s legal team will raise on appeal. Here are just a few of them:
First, Merchan refused to grant a change of venue to conduct the trial outside Manhattan, where Trump is well-known and deeply unpopular. During the 2020 election, for instance, Joe Biden garnered 86.7% of the vote in Manhattan, compared to Trump’s 12.3%.
Trump’s legal team will argue that he could not possibly receive a fair trial in Manhattan and that the proceedings were inundated with hostile media coverage and conducted in a “carnival atmosphere,” factors that the U.S. Supreme Court has stated are important in determining whether a change of venue must be granted.
Second, Merchan refused to recuse himself from the Trump case. A judge is supposed to recuse himself from any proceeding in which he has an actual conflict of interest or when his impartiality reasonably may be questioned.
In addition to the fact that Merchan presided over the tax fraud trial of septuagenarian Allen Weisselberg, the former chief financial officer of the Trump Organization, and sentenced him to prison, Merchan previously donated to the Biden-Harris campaign in 2020, as well as to a group called Stop Republicans.
Moreover, the judge’s daughter, Lauren, is president of a political consulting group that did extensive work for the Biden-Harris campaign and for other prominent Democratic candidates who fundraised off the criminal trial of Trump that her father presided over. Appellate courts give great leeway to trial judges and recusal motions, but the facts here are hard to ignore.
Third, although the indictment alleged that Trump caused a false business record to be entered on the company’s books for the purpose of concealing the commission of, or intent to commit, “another crime,” the indictment didn’t say what that other crime was. And Bragg refused to say what it was when asked about it during a press conference.
Trump’s legal team filed a motion for a bill of particulars, asking Merchan to compel the state to disclose what the other crime was so that Trump’s lawyers could prepare his defence adequately. Merchan refused.
Indeed, it was not until the charge conference shortly before closing arguments that prosecutors disclosed their speculations about what that other crime might be. And it was not until the prosecutor gave his closing argument—after Trump’s lawyer already had made his and sat down—that he finally said anything to the jury about what the other crime was.
This lack of notice was fundamentally unfair and may well have violated Trump‘s right to due process of law under Section 1 of the Constitution’s 14th Amendment.
Fifth, Merchan’s pretrial ruling severely limited what Brad Smith—a former member of the Federal Election Commission and one of the nation’s leading authorities on federal campaign finance laws—could say from the witness stand. Smith was prepared to testify that Trump’s $130,000 payment to Cohen to reimburse the lawyer for the payment to Daniels was a personal expense, not a campaign expense, which didn’t violate campaign finance laws.
Indeed, Smith would have testified that if Trump had paid this money out of his campaign coffers rather than out of his own pocket, that would have been a federal campaign finance violation. Merchan wouldn’t allow Smith to say any of this from the witness stand.
Sixth, this was a false business records case focused on a payment to Daniels to cover up an alleged sexual liaison in 2006, the details of which were utterly irrelevant to the charges against Trump. Yet Merchan permitted Daniels to testify to all sorts of salacious and highly prejudicial details, including that she “blacked out” during their alleged encounter and that the encounter was non-consensual because of Trump’s height and the “imbalance of power” between the two. This testimony prompted Trump’s lawyers to move for a mistrial, which was denied.
Seventh, the judge’s admission of prejudicial evidence involving aspects of Cohen’s criminal record, as well as a non-prosecution agreement by David Pecker, another key prosecution witness and the former publisher of the National Enquirer.
In most cases, it is defense attorneys who want to introduce the criminal records of witnesses who testify for the prosecution. Not so in this case. Merchan allowed the prosecution to admit Cohen’s plea agreement into evidence. Why? Because among the crimes to which Cohen pleaded guilty was a federal campaign finance offence related to the Daniels payment.
Similarly, when Pecker was testifying, Merchan admitted into evidence, at the prosecution’s request, a copy of a non-prosecution cooperation agreement that the former National Enquirer publisher had entered into with authorities that made reference to federal campaign finance violations. Merchan also admitted evidence that the National Enquirer had paid a large fine to the Federal Election Commission for a payment it made, allegedly on Trump’s behalf, to another woman who claimed to have had a sexual liaison with Trump (which he also denies).
The reason the prosecution wanted to introduce this into evidence is because it strongly suggested that Pecker and Cohen in fact did commit federal campaign finance violations and that they did so on Trump’s behalf. There were, of course, alternative ways to introduce evidence of Cohen’s criminal record and Pecker’s non-prosecution agreement without disclosing anything that suggested a campaign finance violation had occurred.
Eighth, there is a strong argument that neither Bragg as the DA nor Merchan as the judge had jurisdiction to put anyone on trial—much less a former president—for alleged violations of federal campaign finance laws. Nothing in the Federal Election Campaign Act gives state court prosecutors and judges jurisdiction over such matters.
And, according to a 2023 memorandum of understanding between the Federal Election Commission and the Justice Department, the FEC “has exclusive jurisdiction over civil enforcement of the federal campaign finance laws” and the Justice Department “has exclusive jurisdiction of criminal enforcement of the federal campaign finance laws, including related criminal offences.”
Here, both the FEC and DOJ investigated the matter and declined to pursue it.
Ninth, Trump’s lawyers called Robert Costello, an experienced former prosecutor and current defence attorney who gave legal advice to Cohen, had numerous conversations with him in 2018 when the lawyer was under investigation.
Costello was called to testify, among other things, that Cohen had told him that Trump knew nothing about the payment to Daniels and to rebut Cohen’s claim that his interactions with Costello were all part of a pressure campaign by Trump to intimidate Cohen.
What else was Costello going to say in testimony? We may never know, because Merchan sustained over a dozen objections made by the prosecution in response to questions asked by Trump’s lawyers. It is likely that Merchan’s limiting the scope of Costello’s testimony will be raised on appeal, especially given how central Cohen was to the prosecution’s case.
Finally, tenth, Merchan gave an extremely unusual instruction to the jury. He instructed the jurors that they had to conclude unanimously that Trump caused a false entry to be made on his company’s books and records for the purpose of concealing “another crime.”
The judge then told the jurors that the other alleged crime was a violation of New York election law (also a misdemeanour) against conspiring with someone “to promote or prevent the election of any person to a public office by unlawful means.” Which, of course, begs the question: What unlawful means?
Here is the unusual and likely erroneous part: All Merchan did was offer the prosecution’s alternative “theories.”
Specifically, the judge mentioned potential violations of the Federal Election Campaign Act, falsification of “other business records,” and “violations of tax laws.” Significantly, however, he told jurors that they didn’t have to be unanimous as to what the “unlawful means” were.
In other words, some jurors might believe that Trump intended to violate federal campaign finance laws; others might believe he wanted to conceal other false business records; some might conclude that he intended to violate tax laws; and some might believe he intended to violate some other criminal statute that the judge didn’t mention, just because jurors think Trump is a bad guy who must have intended to do something wrong.
As a former prosecutor myself, I’ve never heard of such an instruction, nor have any of the other former prosecutors I’ve spoken to since Merchan gave that instruction. If that is, in fact, a proper instruction under New York law, which is highly questionable, then Trump will be able to lay out a strong case, in my view, that this instruction violated the Sixth Amendment as well as the due process clause of the 14th Amendment.
These are serious and substantial arguments that I believe make it likely that this conviction will eventually be overturned on appeal. I am quite sure that there are other potentially appealable issues; these are, however, most of the major issues that are likely to be raised.
We will have to wait and see whether Merchan imposes a sentence July 11 that involves imprisonment or home confinement and, if so, whether he grants Trump an appeal bond.
It is inconceivable to me—but I have been wrong before—that Merchan will order Trump to be taken into custody or confined to his home immediately and deny him an appeal bond.
Trump is, after all, running for president. Moreover, if Merchan were to sentence Trump to a period of incarceration in a state facility, the U.S. Secret Service immediately would object, since they would be unable to protect him under those circumstances.
We will have to see whether Trump’s legal team waits until sentencing before filing an appeal and whether the former president’s lawyers will seek relief through the New York court system or, as some have urged, will seek relief directly from the Supreme Court.
If Trump’s lawyers do the former, they could argue violations of New York law, the New York Constitution, and the U.S. Constitution. If they do the latter, they will be limited to arguing violations of the U.S. Constitution.
These are certainly disturbing and bewildering times, and it is hard to know where we go from here. But as I said at the outset, the Rubicon has been crossed and there is no turning back.
Reprinted from PA Pundits – International
