I thought we might get a hung jury, with at least one holdout on each side. I was surprised the jury came back this quickly (after around 10 hours of deliberations).
I posit that the presence of two lawyer-jurors who were permitted to take notes cut at least a day off the deliberations. They or someone in the deliberations narrowed the issues on which there were unconvinced jurors such that the read-back of specific testimony and portions of the court's charge apparently satisfied them, or gave the other jurors the last leverage they needed to reach unanimity without much further ado.
What are your thoughts as a seasoned trial lawyer on not letting jurors have copies of everything—instructions, testimony, etc.? What purpose does that serve? They heard it all; why not let them have it for reference as they deliberate?
When I am czar of New York, I will reform their criminal procedures comprehensively.
Closing argument will start with the prosecution, who must open fully, followed by the defense, followed by a short rebuttal by the prosecution confined to issues raised by the defense, as God intended and pretty much the rest of the federal and state courts structure things. Giving the prosecution the chance to go after the defendant deprives the defendant of the chance to address prosecution closing arguments and turns the significant advantage of the prosecution in doing a final rebuttal into an overwhelming advantage.
The pattern jury charge will be comprehensively edited to delete duplication and cut the total length by at least 75%.
The court's charge to the jury will be read BEFORE the closing arguments, so the jurors can use that knowledge as a filter through which to view both sides' closing arguments. And yes, absolutely, every juror would get a hard-copy version of the charge, which they can use to follow along with the lawyers' arguments about how the evidence should be considered under the charge.
While I'm at it, I'm going to rename the general-jurisdiction New York trial courts from Supreme Courts to "District Courts," rename the Appellate Division the "Court of Appeals," and rename the Court of Appeals "the Supreme Court of the State of New York," all in parallel with federal and most states' practices.
I approve of using a dumb internet-disabled laptop or some other digital device to replace the bankers' boxes of exhibits.
And I approve of the note-taking policies from this case (encouraged and facilitated, taken up at the end of each day's court session, with instructions that jurors shouldn't treat each others' notes as definitive. That probably mitigates the problem of not giving a copy of the charge to the jurors, but it doesn't do anything to reduce the bloated charge.
I'm uncertain about making testimony available to jurors directly in digital form. We have the technology to do real-time rough transcripts, but polishing them to official standards would still inject expense & delay that only a relatively few big cases could justify. I might authorize some experimentation with that in the discretion of the trial judge.
Keeping cameras out of the courtroom is essential. I know it drove the cable news talking heads crazy, but just imagine how big a circus Trump would have turned this trial into if he'd had cameras to mug into and supporters watching just outside. Courtrooms are kryptonite to conmen, but putting TV cameras into them is like giving a conman a power-up.
The New York bench & bar both have enjoyed the highest reputation going back to colonial days, and their traditions are important and worthy of respect. But these are crusty affectations that need revision to bring them in line with federal and other states' practices.
And that said: the things I would change were done the same for this defendant and prosecution as in any other New York criminal trial, as best I can tell. I suppose the moral is: If you want your jury to get to have a copy of the court's charge, you need to commit your crimes somewhere other than New York State, or else break some federal law. Judge Merchan's accommodation of this jury's requests to read back transcript excerpts and to re-read portions of the charge, while not very efficient, cured most and perhaps all of the prejudice to either side from trying the case as if it were still 1938.
Now how do I convince New Yorkers to make me czar? Imma need some help for that, I suspect.
Thanks for these excellent proposed reforms! Especially the renaming of the courts—it's so confusing to people outside New York (and even many people in New York).
The video typically includes a running time-stamp that would substitute (or rather, be cross-referenceable against) the line and page numbers we're used to using. I'm a fan of video in courtrooms, just not live cameras televising the proceedings in real time to the public.
It's a terrible idea. As someone with a hearing disability, I would be prevented from serving. And TBH I think it benefits all jurors when they don't have to rely on memory.
Let them take notes; let them ask questions that the lawyers and Judge review before deciding whether to answer and what to answer if one will be given; let them take notes and give them the jury charge. On testimony, I prefer in-court redbacks so they don't key on a small segment of the transcript and the lawyers can agree on the width of the testimony that gets read to them. If they ask for particular documents, I'd let them have what they want. No drugs or weapons, though.
Same! I confidently told my husband this the day before the verdict...but what do I know. I'm glad to hear I was not the only non-litigator who thought this.
I have practiced in Manhattan as a litigator for 35 years and I know several of the participants in the trial, although I am not at liberty to disclose their names. But what I can say,is the prosecution put on a near perfect case, in terms of their tactics, and the trial judge was fair and evenhanded in his rulings. Several issues arose in the course of trial that will provide viable grounds for an appeal and in NY that process could easily take a year. What will be the result on appeal is difficult to predict.
Hahahahaha. All I can do is laugh at this insane statement. First-he donated to Dems-a NoNo, his daughter is biased as heck, his conduct during trial was not fair at all-it will all come out at appeal. How delusional are you> Alad Dershowitz in a very liberal Dem and one of the most accomplished attorneys and teaching professors-forgive me that I will take his view of that trial over your deranged opinion (to which you are entitled to).
Comparisons to Soviet show-trials are grotesque and insult the memory of their victims.
Costello should lose his license for his conduct on the stand. He is very, very lucky he didn't end up in cuffs on the spot. I've seen lawyers punished severely for much less egregious misbehavior.
None, and up to you and every other reader of these comments.
I am generally familiar — from comparative law discussions in law school, from general reading in the press (e.g., this: https://americandiplomacy.web.unc.edu/2017/01/reminiscences-of-life-under-communism-soviet-show-trials/), and as a trial lawyer in Texas since 1980 — with the major differences between American criminal justice and that of the totalitarian regimes including the Soviet Union. The rights purportedly guaranteed to those accused of crimes there are hollow mockeries of their American counterparts — grand juries, trial by jury, trial with independent counsel of the defendant's choosing, trial in the district of residence, the presumption of innocence, the burden of proof beyond a reasonable doubt, the cloak of attorney-client privilege, the privilege against self-incrimination, meaningful appellate review on both facts and law, the prohibition of cruel and unusual punishments, etc. Trump was hardly seized in the middle of the night, held incommunicado, furnished with a lawyer who's a toady to the state, tortured for a confession, sent to Siberia, or executed with his widow receiving a bill from the State for the cost of the bullet.
But by all means, if you'd like to share your own superior experience with Soviet show-trials, or more thorough examination of them from afar, don't let me inhibit you. Best wishes, DK. If you or anyone close to you ever have the misfortune to become a criminal defendant, I hope you have the great good fortune for that to be in America.
Unlike you, I grew up in a communist country but luckily I didn’t have to deal with the criminal system. Even though I lived there I don’t talk about „Soviet style” trials because I’m ignorant on this subject. Do you understand what I’m trying to say?
I can tell you this though-communists and all the apparatchiks running the government entities there were more honest that most Democrats in this country.
Just ask anyone who came here from there 20-30 years ago. Soviets had nothing on Democrats in DC, New York or California.
How ironic that everything trump struggled to keep quiet before the 2016 election now has been made public in a very big way for weeks on end, before another election, and it likely will have no effect whatsoever on this election.
Correct if I’m wrong but has disqualification ever been tested in a presidential election?
No one (save maybe Trumps team, actually) would want to win by default. The American public wouldn’t want an election overturned on some legal technicality. Can you imagine Bush v Gore the other way?
This trial and conviction have caused contributions to Trump’s campaign to radically increase and if he will be seen as a martyr by his supporters and a defendant whose trial was conducted in disregard of constitutional guarantees that protect all citizens
There is nothing good to be gained from this verdict other than the knowledge that our justice system works. Of course, my sense of schadenfreude has been satisfied, after seeing this Great Orange Neoplasm escape accountability for his entire life.
I've had some exposure to criminal law, but I'm really just a mere deal lawyer, although I did have a stint as an ALJ.
State court judges have greater reliance on judicial norms, experience and personal judgment than do Federal District Court judges, who must navigate within the confines of the sentencing guidelines. Here is now I imagine one line of thought.
1 Jail will not rehabilitate this felon
2 He is highly unlikely to express remorse
3 Other business owners and operators will be sufficiently deterred by the types of facts that were proven in this case and the consequences that follow from them
4 It is uncommon to incarcerate first-time non-violent offenders
5 There are practical difficulties associated with this felon's unique right to protection by armed federal officers. This will increase administrative burden and may require that he be held in solitary confinement for his protection. This is a measure that is normally reserved to prison authorities as a disciplinary measure and is widely seen as an enhanced deprivation of liberty
6 Alternatives exist to serve as punishment through the terms of probation. These include the length of probation, restrictions on travel, surrender of passport, frequency of interviews, etc. The special master's capacity to oversee the conduct of the felon's primary business pursuant to an unrelated civil case provides a safeguard against repetition of this type of offense.
What’s your Plan B? It’s ok, I won’t dox you. You can share your fantasies about how you and your cohorts are going to take matters into your own hands. Any specific plans?
What? I follow the law even if I don’t agree with it. I will be taking it into my hands when I cast my vote. Seemingly intelligent people completely lost ability to think clearly. That’s why I also believe that Trump will be acquitted.
This entire discussion is silly in my opinion.
The truth is-everyone knows it’s sham but they pretend that it has legs to stand on.
Good. I thought the echo of the MAGA rhetoric meant you were looking forward to a course of retribution, rule by decree and all the other lawlessness on offer. Sorry to misinterpret. If you're voting for the former guy, that's all right, too.
Seems to me (as a former reporter) that the state was meticulous in the case it presented. Yet I'm amazed that Trump was convicted on all 34 counts. The case seemed complicated to me, which is why I thought the jury would not convict on all -- but they did! Credit to the prosecution.
But the existence of an “other crime” (and the underlying intent to conceal that crime) was a finding of fact, and the jury so found (unless you mean there is a Constitutional question?)
Did the prosecution present any evidence for the "other crimes"? I read the jury instructions, but I didn't read all the testimony or evidence. From what I saw in the jury instructions, it was up to the jury to decide whether any of the 3 potential "other crimes" happened:
1. Unlawfully influencing an election (NY statute). Was any evidence presented, or any precedent cited, that "paying someone not to tell embarrassing information" is "unlawful"?
2. Violation of tax laws (NY or federal or both)? Was any evidence presented that the misstatement would affect taxes? If it affected NY taxes, why was this not included in the indictment.
3. Violation of Federal Election Campaign Act. Was any evidence presented, or any precedent cited, that a candidate's use of his own money to support his candidacy, but not spent directly by the campaign, would violate the Act?
My question: is there an appeal that, as a matter of law, the prosecution did not make a case for an "other crime"?
I agree that the prosecution faces a significant hurdle on appeal due to the "other crime" issue. The jury was instructed that they could convict based on any of the theories for another crime, meaning all of them must withstand appellate scrutiny. If even one is found invalid, the conviction must be vacated and remanded for a new trial (since the jury might have relied entirely on the improper theory).
The New York statute appears to limit other "crimes" to offenses defined under state law, making reliance on federal election law as a predicate crime problematic. Even if federal law could serve as a predicate, it's doubtful the facts establish a violation. Trump spent his own money to pay Cohen to pay off Stormy Daniels—seemingly legal. The argument that this constitutes a campaign expense rather than a personal one is tenuous at best. An appellate ruling that hush money is a personal expense, not a reportable campaign expenditure, would unravel the conviction.
While Bragg celebrates, the conviction's survival on appeal is questionable and the process may span years. Having this historic conviction overturned years from now (after the election) could shake confidence in the democratic process on all sides.
Presumably they made enough of a case for the other crime that the jury found that there was an intent to commit at least one of them in every juror's mind
Well, that was my question. I've heard the prosecution claiming that Trump's payments were an unlawful attempt to influence an election, but I haven't seen any argument as to why that would be so. If Trump's books had recorded "payment to silence bimbo", would there have been any violation? As far as I know, it's lawful to pay someone not to publicly tell a story. It's lawful for a candidate to spend his own money to support his own campaign. So, two questions:
1. Was the payment unlawful in itself? If not, how can it be an "other crime"?
2. Did the prosecution present any evidence that the payments were unlawful? If not, it seems to me that the law would require dismissing the charge - you can't leave it to a jury to find a crime without evidence of a crime. The jury's role is to decide the credibility of evidence presented, and apply it to the law to determine guilt or innocence, not to decide without evidence.
This feels like grasping. The payment may not have been unlawful, but the way he went about it was, and the argument is that cooking the books was an attempt to unlawfully manipulate the election. One would assume that since he was found guilty of those things, the case was made for them.
Was the jury instructed that they can only convict if there was evidence beyond a reasonable doubt of a violation of each and every element of the above cited statutes? Such an instruction is a bedrock constitutional and statutory requirement
It's bedrock for the crime actually charged. For the causing of records falsification, the jury was indeed instructed that they had to be unanimous as to every element of that crime, times 34.
In an obstruction of justice prosecution, though, for example, one can be found guilty of obstructing an investigation even if no charges were ever filed, much less every element thereof proved beyond a reasonable doubt.
Ms. Isgur and perhaps others have pointed out that people are routinely convicted, under both state and federal law, for obstruction of justice even though no specific crime was ever charged and no conviction was ever obtained. There's a nice discussion of this in the Mueller report. If the NY statute is constitutional (state & federal) as applied here, it's likely to be by analogy to obstruction of justice statutes, I think.
On the facts and law, I don't think it was a hard verdict to reach -- though politically the matter is highly charged. As a former (once and always, born and bred) New Yorker and graduate of Cardozo Law, I am very proud. However, of course Trump will appeal and of course the deniers will continue to blame everything on Biden and the Deep State.
I have no thoughts on sentencing except to say that Merchan is not likely to go easy.
I think we may not realize how dangerous this time is. Even those of us who are aware and know the law.
We are on a pinhead. That means us, the People, and us The U.S. We believe our republic cannot fall but history says different. This trial and the verdict are enormously important, a pivot point. But this may not be the only pivot point or the last one. Troubles are coming. The battle lines are being drawn.
I was recently threatened by a Trump supporter, who told me "We are coming for you!" Me? Who am I? An old lady with an education, some knowledge and some opinions.
What if Biden had been prosecuted and convicted of illegally having custody of confidential materials or aiding and abetting a bribe from a foreign agent? Would you have the same opinion?
There's a Democratic Senator on trial for accepting bribes right now and most dems I know are cheering for him to be thrown in prison for a good long time.
I wouldn't have any problem with such convictions (after due process of law). But I certainly would not "have the same opinion." Nothing you described was even close to what Trump has done and caused or what he likely will do or cause if he's allowed.
At the risk of sounding naive what fid Trump do or cause or what was he likely to do or cause if he’s allowed ? Obviously his message resonated in much of the US
Well, there was the whole "find a loophole to overturn the election results, or failing that, just disregard the results" thing. Not that he's been convicted of that, but the evidence seems pretty strong.
On a serious note as opposed to football spiking by either side: what are the chances Trump prevails on appeal? Seems to me there were a number of rulings that might give him some legitimate grounds. Plus the whole issue of an indictment that doesn’t really make clear what the 2nd crime he was trying to hide. Since this is a legal site, hopefully someone can provide some insight
He has a couple of nonfrivolous appeal points for sure, relating to the charge. On his best argument, from the way the statute is constructed, I think it's probably 80/20 that the NY Appellate Division, 1st Department, will agree with the way the charge handled the crimes whose concealment motivated the falsifications. But I also think that the statute itself may be subject to due process-related constitutional objections, of a sort which the NY courts interpreting this statute have previously rejected in other contexts, but which Trump will use to try to get SCOTUS review. His chances might actually be better before the SCOTUS on a cert petition than before the Appellate Division or NY Court of Appeals.
Trump will also have a large catalog of weak to frivolous appellate arguments, all with single-digit possibilities of success. His venue objections fall into the weak category. His complaints about the detail with which prosecutors were able to question Daniels are likely going to be doomed for opening the door themselves (by denying the affair), and by two sorts of waiver — by failure to object consistently enough, and by then pushing even wider open the door they'd themselves opened through aggressive cross-x on those details. So also very weak. His arguments of political persecution/selective prosecution are frivolous — he had no right to be indicted only by a Republican grand jury composed of Republican voters, nor any right to a Republican judge, nor to petit jurors who're Republicans, and all of said Republicans of the MAGA variety.
But I'm a civil trial lawyer not admitted in New York, and there are almost certainly better-informed members of Mr. Lat's audience who may weigh in.
What about the jury instructions? If there was no instruction as to the necessity of proof beyond a reasonable doubt is that a strong due process argument?
Read the instruction as to reasonable dount-a very strong argument can be made that it did not require that the jury to find that the prosecution proved each and every element of the crimes charged beyond a reasonable doubt . I thought that this instruction was a vague boilerplate instruction that failed to meet the statutory requirement of NY's Crimimal Procedure Law 70.20 which sets forth:
"Standards of proof for conviction. No conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant's commission thereof"
Severe problems are 1- state court enforcing at all federal election law and that childishly wrong 2–2020 US Supreme Court case outlawing combined majorities. Terrible NYS problems but the Constituional problems directly contravene recent S Ct authority.
Does anyone have the ACTUAL instruction regarding the 2nd crime? I’ve read conflicting things. But the consensus I’ve seen is that they had to unanimously find a 2nd crime but did not have to agree unanimously on what that crime was.
"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. "
The "unlawful means" could be:
(1) violations of the Federal Election Campaign Act a.k.a. FECA;
(2) the falsification of other business records; or
The unanimity instruction was completely consistent with NY law on burglary. The NY Court of appeals has been crystal clear that the prosecution doesn't even have to specify what the other crime intended to be committed is, so there certainly doesn't have to be unanimity among jurors on that point.
I did not read the judge's instructions. Did he perhaps tell them that a finding of guilt includes a finding that it was for the purposes of disguising other crimes?
As I've seen it explained, this is not quite true. To get to guilty, the jury needed to find (unanimously) that:
1. Trump commited the crime of falsifying business records. (Which, on its own, would be the misdemeanor).
2. Trump falsified the business records with an intent to commit another crime or conceal the commission thereof. (This is the step up to felony).
The prosecutors told the jury that the other crime here was Section 17-152, a New York statue that criminalizes "influencing" an election through "unlawful means."
Section 17-152 is one crime, not three, so to find Trump guilty, the jurors needed to unanimously agree that Trump commited the crime of falsifying business records with an intent to influence an election through unlawful means.
Where does the talk not agreeing on other crimes come from?
What the jurors did not have to agree unanimously on is what the unlawful means were.
Analogy: The Russian nobles who murdered Rasputin because they thought he was a bad influence on Tsar Nicholas II invited him to a party and gave him a lot to drink and food laced with drugs, then the shot him, then they threw him in a river. In a trial, a 12 member jury could convict the nobles of Rasputin's murder if they all believed beyond a reasonable doubt that the nobles murdered him. This would be a fair verdict even if 4 jurors believed that it was the drugs and alcohol that killed him, 4 thought it was the gunshots, and 4 thought it was throwing him in the river to drown.
This is not correct. The jury instructions clearly set out the three different potential crimes underlying the felony stepup. And they are explicit thar yhe jury need not be unanimous of which underlying crime(s) justify the stepup.
An indictment does not have to state the facts underlying every element of the crime being charged. Those facts are presented at trial. That was done here. And for good measure, the three underlying crimes were contained in detail in the jury instructions. The jury then made their factual findings.
You are right some might think this statute is constitutionally defective. I disagree but we shall see.
All of that (as it relates to underlying crimes) was presented to the defense in pre-trial hearings. Also, the defense has tons of input into the drafting of the jury instructions. Nothing was hidden or a surprise.
I am a retired Philadelphia (and surrounding counties) defense attorney who practiced mostly in state courts - more civil than criminal, but I handled over the years a fair amount of criminal defense. If I were representing Trump, my advice would be to accept responsibility, show contrition and allow me to convince the sentencing judge that a reasonable time of probation or a suspended sentence would be apt under the circumstances. Given that Trump's crimes are Class E felonies (the least serious), it would under normal circumstances not be unreasonable to expect the judge to sentence to probation. However, Trump is not a normal defendant. He is incapable of accepting responsibility for his actions or being contrite. Worse, he continues to mouth off publicly about how he was innocent and his conviction and treatment are tremendously unfair. Plus, he continues to make statements that appear to be thinly vailed threats to the judge and prosecutors.
All this being the case, I am very hopeful that we will see Trump sentenced to some real time in jail, perhaps a year. Failing that, a sentence of home confinement with an ankle bracelet that monitors his whereabouts - and would prevent him from campaigning - would be satisfactory. I would want any home confinement, however, conditioned on Trump absolutely being forbidden from appearing on television for any reason, as he has sufficiently demonstrated that he is incapable of appearing anywhere or speaking without abusing the judge, court employees and prosecutors and their families.
For all the difficulties, a short sharp taste of jail seems appropriate. Then whatever someone else convicted of 34 low level felonies would get - fines, home confinement? I assume the sentence can be stayed pending appeal, so he can campaign. I have said for years that I hope the judge has authority to require a crewcut.
From the peanut gallery: my bet is he stays sentencing pending appeals, or pronounces sentence but suspends it pending appeals process. Not so sure about jail. Fines, probation, maybe ankle monitor house-bound with allowances for other trials [avoids the Secret Service in jail stuff], and some kind of ban on conducting business in New York, akin to disbarring a lawyer.
I agree judge will stay sentence pending appeal. Home confinement is tricky at Mar-A-Lago. There’s no golf course there, but would he be allowed to eat dinner on the patio with adoring crowds? Can judge require him to serve home confinement in Trump Tower? No comment on the crewcut?
Lots of great comments here from legal experts. As a political scientist, I thought I’d weigh in on what this might mean for Trump’s campaign. I’m extremely skeptical of polls/pundits that suggest that this will have either a massive or zero impact on the election. In my opinion, it’s somewhere in between. Most support for Trump/Biden is already baked in, but I do see this mattering for the small percentage of voters that will turn out in November but are not following politics closely and are perhaps leaning towards Trump because they remember things being better pre-COVID/inflation. I think being a convicted felon costs Trump somewhere in the region of 1-3% of the popular vote, and where exactly that lands matters a great deal considering how close things are expected to be.
Nate Silver, in a subscribers-only post, has pretty much the same analysis as you. There is a tremendous amount of uncertainty here, of course. The polls showing that a conviction will matter to some small percentage of voters were based on a generic, unspecified conviction (when very different cases were simultaneously proceeding in NY, DC, Florida, and Georgia).
It remains to be seen whether this specific conviction, on the most arcane and difficult to understand charges of all the pending prosecutions, will have a negative effect on Trump's vote totals. Presumably, we will have polls within a few days that will shed light on this.
I heard that too. My reaction was: Trump got 74.2M votes nationally in 2020. If his conviction only produced less than $0.50 for each via donations that typically would start at $25, that's really not very impressive.
NYC clown show —a real stinker even among NY stinkers—has elevated a very flawed man into a hero. There are inverted flags going up all over the U.S. particularly in rural areas. The Trump website is overflowing with new donors. The Ds saddled with a Bozo have made the issue fairness rather than Trump. If there is any effort to restrain Trump’s campaign I would go direct to the U.S. Supreme Court under the new Machon exception to exhaustion of remedies.
To be clear, it is NOT necessary that the jury find that any underlying crime “existed” (i.e., that it was actually committed). And of course the underlying crime does not even need to have been allegedly committed by the defendant (it could be a third-party crime). All the jury needs to find that the defendant commited the primary act(s) with the intent to conceal “another” crime, even if the defendant was mistakenly wrong about the other crime. He’s not being charged with that other crime. Maybe that’s a shitty statute, I don’t know. But that’s all it requires.
Before I became a prosecutor, I asked my three attorney siblings what to expect. They said "We expect you to be able to look yourself in the mirror the same way on your last day as you did on your first." One of the rules I learned through holding the power is that just because you can bring a case doesn't mean you should. Any DA should know a President as a defendant will likely lead to some other DA in a "less enlightened" jurisdiction doing it to the next President. And so on and so on. The present Manhattan DA office just impacted the country in a very bad way. I remember Al Scotti's funeral, and watching Hugh Carey, long past holding office, walking to the front to pay respects to DA Morgenthau's Deputy and successor. I really wonder if that type of respectful appreciation by Chief Executives of the role of the DA has now, like a lot of past practice, been trashed. Would Scotti have allowed his Manhattan DA's office down this road? We all know the answer to that. DAs getting into politics taint every criminal prosecution going forward. The prosecution of murders, robberies and rapes is difficult enough without jurors wondering about a political angle by the prosecution office in a case of note which should never have been approved. Now every prosecutor in New York is stuck with being looked at in that way.
So you shouldn't charge someone who has committed a crime with a crime because a bad political actor might make it personal later? What stalwart values you have.
We can disagree about the wisdom of prosecuting politicians without suggesting someone has poor values. Whether you disagree or not, I hardly think taking the position that the health of the nation is more important than criminal prosecution is somehow evidence of bad moral character -- even if it's a mistake.
However, I suspect what he means is that you shouldn't charge someone with a crime when you wouldn't have charged someone who wasn't a politician -- and indeed you should be extra careful and reluctant to charge the politician.
And re: Trump, I think only the Florida case pases that bar. Maybe a differently charged case in GA would as well but Willis fucked it up. But this case was clearly brought because the DA was getting shit for not pursuing the earlier case against Trump.
Unfortunately lots of things are illegal in the US and if we accept a norm of digging for something to prosecute our political opponents with we'll end up needing to give our presidents general immunity which won't be good.
Except the entire point is that he committed a politician's crime. He's being charged for doing something only a politician would do. If you don't hold politicians accountable for monetary crimes related to their campaign, what are those laws for?
But that's the job of the federal election authority. If they charged him I'd be onboard -- though I dunno it's an easy case then.
This is an attempt to stretch a statute beyond how it's ever been applied before (hook not being a NY crime) to get someone because someone didn't like how the federal prosecutors handled things.
And that seems like a recipe for chaos. If Texas disagrees with DACA can they use the unprosecuted hook of illegal presence to turn every misdemeanor by a DACA recipient into a felony? But even if this wasn't a concern it raises exactly the concern of the OP.
Besides, the biggest problem here is the state court isn't well suited to actually figure out if the federal election activity was a federal crime.
It's not as simple as he did it to influence the election. For instance, even if you (a la Palin) buy clothes to influence the election you actually can't finance that with election money, you are supposed to spend your own cash on it and it's not clear the same isn't true here. If this had been brought in federal court we could have worked this all out.
I had thought there were interpretive problems with the federal election law in play as well. My understanding - albeit second hand - was one law says campaign funds cannot be used for these purposes and the federal law in question here is posited to turn the use of private funds in this instance into an unreported campaign contribution. Ergo, a logical tension about the meaning and interpretation of these laws.
If I’ve got it right - you know, about the meaning of the law being in question and therefore perhaps the constitutionality of the law - seems like a pretty serious issue that will need to be resolved on appeal.
Then, I really do think there’s a prosecutorial discretion issue here.
You can have a good conviction and still have a prosecution that never should have been brought.
I don’t really subscribe to the idea that just because you can construct a crime, you charge the crime. I think the right question is: Would anyone other than Donald Trump have been charged with this crime? I think the answer is likely: No.
[Aside: I never thought the Cohen plea ever made sense over the campaign finance issue. I just assumed it was kind of cloak and dagger cover for the congressional testimony that - as I recall - pretty blatantly painted a picture of FCPA violations over Trump Tower in Moscow. i.e., offering Putin the penthouse suite to get approval for the tower. How on earth did that go absolutely nowhere? When it did pretty clearly go nowhere, my reaction was: All these lawyers in Congress and not a single god damned brain among the lot of them.]
But back to prosecutorial discretion…I think it’s a separate and very serious issue exposed by this case. And we all know it’s there and lurking.
So, for instance, is the venue appeal a winner for Trump? Maybe not. But shouldn’t a prosecutor who believes in his case say, “Hey. I believe in the strength of my case and I don’t want to create even the appearance of injustice. Let’s take this to Westchester [or wherever].”
I am not actually making the argument that former presidents are above the law. But prosecuting a former president implicates all sorts of issues that are not in play for the normal citizen. And, if it were me as the prosecutor, I would think that - for the sake of the republic - if you do manage to convince yourself to charge this speeding ticket as a felony, you then need to seriously consider that while a venue change may not be legally required, it may be prudent in the context of the larger picture. I am not saying go to a Republican stronghold. But if you’ve got a good case why try the case with the home court advantage? Maybe that’s special treatment for a former POTUS. But it’s not FOR the former POTUS. It’s for the nation and preserving the perception that we are a nation of laws.
Then, I think there’s another question that may be a state law reform issue.
Should a low level politician, such as Alvin Bragg, really be able to make these kinds of charging decisions by himself?
This is a former President we are talking about here.
And I really do think that more people need to be deeply concerned about the gravity of charging a former president. [To be clear: I am totally fine with the federal prosecutions, including in particular the Florida documents / obstruction case.]
Is Lady Justice blind? Sure. I guess. But not really. Because again: it seems clear to me Trump was changed because he is Trump and that’s how it will appear to many. That ain’t blind. Or, at least, it is the appearance of an absence of blind justice.
So, you establish a process to insulate from the risk of the proliferation of politically motivated prosecutions.
And this is a real concern ya’ll. This is exactly the kind of stuff that happened in the years preceding the fall of the Roman Republic and the Rise of Empire. There were political battles over judicial assignments and then when a consul lost office and the cloak of immunity he had previously enjoyed, that consul was charged with a crime. These kind of political trials became commonplace and undermined the strength of civic (extra-legal) norms in Rome and made the stakes for elections existential.
When you make an election in a republic existential in nature: That’s not good. Because people will then do whatever it takes to win elections, including resorting to corruption and violence.
That state of affairs cannot last long in a republic.
And sure enough, it did not last long in the case of Rome. It was all this political intrigue, polarization and weaponization of the legal processes that ultimately made Julius Caesar more inevitable than Thanos. Whether it was Caesar or a Caesar of another name: the fall of the republic was coming.
So. Yeah. Should a county prosecutor really have the power to charge a former president without much more of a process and checks that take the seriousness of this prosecution seriously? Career Federal prosecutors concern me a whole lot less than the Alvin Braggs of the world. He may be a prosecutor. But he’s an elected prosecutor. He - and others like him - are much more of a political animal than career federal prosecutors that operate under political appointees.
Additionally, there’s another dynamic in play. I found it a little funny how hard WaPo stretched to argue that Bragg wasn’t backed by Soros. I mean. Really? So, Institution Y pledges at least $1mm to Bragg. One week later Soros gives $1mm to Institution Y. Plus Soros is on the record as having said that county DAs is a strategy he has been going after. And this isn’t Soros backing Bragg?
Ummm. Ok. Whatever.
I will also say that Soros is clearly getting a little
more covert here because when I first heard of this Soros prosecutor thing, I assumed it was more tin foil stuff from the far right. Then I looked up the campaign donations of a certain controversial prosecutor and there was the Soros funding clear as day.
And here’s the thing: There’s nothing wrong with Soros pursuing that strategy (albeit a little uncomfortable that he certainly seems to be feeding into the conspiracy theories a bit and a lot of people with these DAs turn out to be pretty unhappy with the job performance and hyper political decision-making of these DAs - or at least that’s my perception and explanation for why they tend not to have a terribly long shelf life in the counties they are elected in).
BUT should an official in an election campaign where all you need is a George Soros be THE official that can charge a former president? And shouldn’t we take seriously concerns about how that looks (particularly in light of some highly controversial charging and non-charging decisions by other county DAs backed by Soros funds).
And even if we are ok with all this here: Shouldn’t we all be concerned that this is a sword that can cut two ways?
I am not saying don’t charge Trumps. And I am not saying Bragg did not operate within the process in place.
But I am saying: Should this be the process in place going forward? Because. Jesus. It scares me.
If the immunity case comes out well considered but remotely clear in the future roadmap, we’re not all going to eventually realize it’s a lot like the constitution itself. Seems pretty well thought through until you run into the event horizon and you realize the thing is more weak points than strong points.
My gut is i want to see as little clear rules and bright line holdings in that immunity case as is possible.
Other than stuff that is like: Yeah, you can’t prosecute bush for Iraq or Obama for too many drone strikes.
But even that drone strike thing? Man. Dog. The devil is in the details. The American citizen abroad was probably ok. Maybe. But we’re getting real close to some lines there.
I really hate that we have to get into this stuff in this level of detail.
Nothing good will come of removing ambiguity on POTUS immunity. Nothing good.
I think you are right on target. It seems 99% likely to me that some two-bit prosecutors somewhere in Texas, Florida, Montana, or even the deep red parts of California are going to find some arcane way to charge Joe Biden with a crime once he leaves office.
I thought we might get a hung jury, with at least one holdout on each side. I was surprised the jury came back this quickly (after around 10 hours of deliberations).
I posit that the presence of two lawyer-jurors who were permitted to take notes cut at least a day off the deliberations. They or someone in the deliberations narrowed the issues on which there were unconvinced jurors such that the read-back of specific testimony and portions of the court's charge apparently satisfied them, or gave the other jurors the last leverage they needed to reach unanimity without much further ado.
What are your thoughts as a seasoned trial lawyer on not letting jurors have copies of everything—instructions, testimony, etc.? What purpose does that serve? They heard it all; why not let them have it for reference as they deliberate?
When I am czar of New York, I will reform their criminal procedures comprehensively.
Closing argument will start with the prosecution, who must open fully, followed by the defense, followed by a short rebuttal by the prosecution confined to issues raised by the defense, as God intended and pretty much the rest of the federal and state courts structure things. Giving the prosecution the chance to go after the defendant deprives the defendant of the chance to address prosecution closing arguments and turns the significant advantage of the prosecution in doing a final rebuttal into an overwhelming advantage.
The pattern jury charge will be comprehensively edited to delete duplication and cut the total length by at least 75%.
The court's charge to the jury will be read BEFORE the closing arguments, so the jurors can use that knowledge as a filter through which to view both sides' closing arguments. And yes, absolutely, every juror would get a hard-copy version of the charge, which they can use to follow along with the lawyers' arguments about how the evidence should be considered under the charge.
While I'm at it, I'm going to rename the general-jurisdiction New York trial courts from Supreme Courts to "District Courts," rename the Appellate Division the "Court of Appeals," and rename the Court of Appeals "the Supreme Court of the State of New York," all in parallel with federal and most states' practices.
I approve of using a dumb internet-disabled laptop or some other digital device to replace the bankers' boxes of exhibits.
And I approve of the note-taking policies from this case (encouraged and facilitated, taken up at the end of each day's court session, with instructions that jurors shouldn't treat each others' notes as definitive. That probably mitigates the problem of not giving a copy of the charge to the jurors, but it doesn't do anything to reduce the bloated charge.
I'm uncertain about making testimony available to jurors directly in digital form. We have the technology to do real-time rough transcripts, but polishing them to official standards would still inject expense & delay that only a relatively few big cases could justify. I might authorize some experimentation with that in the discretion of the trial judge.
Keeping cameras out of the courtroom is essential. I know it drove the cable news talking heads crazy, but just imagine how big a circus Trump would have turned this trial into if he'd had cameras to mug into and supporters watching just outside. Courtrooms are kryptonite to conmen, but putting TV cameras into them is like giving a conman a power-up.
The New York bench & bar both have enjoyed the highest reputation going back to colonial days, and their traditions are important and worthy of respect. But these are crusty affectations that need revision to bring them in line with federal and other states' practices.
And that said: the things I would change were done the same for this defendant and prosecution as in any other New York criminal trial, as best I can tell. I suppose the moral is: If you want your jury to get to have a copy of the court's charge, you need to commit your crimes somewhere other than New York State, or else break some federal law. Judge Merchan's accommodation of this jury's requests to read back transcript excerpts and to re-read portions of the charge, while not very efficient, cured most and perhaps all of the prejudice to either side from trying the case as if it were still 1938.
Now how do I convince New Yorkers to make me czar? Imma need some help for that, I suspect.
Thanks for these excellent proposed reforms! Especially the renaming of the courts—it's so confusing to people outside New York (and even many people in New York).
So I have your support for czar, then?
Why not let jurors play back a video of what they saw if you can't get transcripts polished?
The czar is impressed with your idea!
The video typically includes a running time-stamp that would substitute (or rather, be cross-referenceable against) the line and page numbers we're used to using. I'm a fan of video in courtrooms, just not live cameras televising the proceedings in real time to the public.
It's a terrible idea. As someone with a hearing disability, I would be prevented from serving. And TBH I think it benefits all jurors when they don't have to rely on memory.
Sometimes I am reminded of the ways ableism is baked into our system
Let them take notes; let them ask questions that the lawyers and Judge review before deciding whether to answer and what to answer if one will be given; let them take notes and give them the jury charge. On testimony, I prefer in-court redbacks so they don't key on a small segment of the transcript and the lawyers can agree on the width of the testimony that gets read to them. If they ask for particular documents, I'd let them have what they want. No drugs or weapons, though.
Oh, that’s interesting re: testimony versus instructions—thanks Charlie!
Good insight!
Same! I confidently told my husband this the day before the verdict...but what do I know. I'm glad to hear I was not the only non-litigator who thought this.
Same.
I have practiced in Manhattan as a litigator for 35 years and I know several of the participants in the trial, although I am not at liberty to disclose their names. But what I can say,is the prosecution put on a near perfect case, in terms of their tactics, and the trial judge was fair and evenhanded in his rulings. Several issues arose in the course of trial that will provide viable grounds for an appeal and in NY that process could easily take a year. What will be the result on appeal is difficult to predict.
The judge was fair or even handed?
Fair *AND evenhanded. Yes.
Hahahahaha. All I can do is laugh at this insane statement. First-he donated to Dems-a NoNo, his daughter is biased as heck, his conduct during trial was not fair at all-it will all come out at appeal. How delusional are you> Alad Dershowitz in a very liberal Dem and one of the most accomplished attorneys and teaching professors-forgive me that I will take his view of that trial over your deranged opinion (to which you are entitled to).
Tell me more about Alad Dershowitz.
“to which you are entitled to”?
Hmmm.
I thought that the judge clearly was pro prosecution and attempted to intimidate Costello The entire atmosphere was one that Beria aptly described
I disagree 100%.
Comparisons to Soviet show-trials are grotesque and insult the memory of their victims.
Costello should lose his license for his conduct on the stand. He is very, very lucky he didn't end up in cuffs on the spot. I've seen lawyers punished severely for much less egregious misbehavior.
How many Soviet trials have you witnessed? What's your credibility on this topic?
None, and up to you and every other reader of these comments.
I am generally familiar — from comparative law discussions in law school, from general reading in the press (e.g., this: https://americandiplomacy.web.unc.edu/2017/01/reminiscences-of-life-under-communism-soviet-show-trials/), and as a trial lawyer in Texas since 1980 — with the major differences between American criminal justice and that of the totalitarian regimes including the Soviet Union. The rights purportedly guaranteed to those accused of crimes there are hollow mockeries of their American counterparts — grand juries, trial by jury, trial with independent counsel of the defendant's choosing, trial in the district of residence, the presumption of innocence, the burden of proof beyond a reasonable doubt, the cloak of attorney-client privilege, the privilege against self-incrimination, meaningful appellate review on both facts and law, the prohibition of cruel and unusual punishments, etc. Trump was hardly seized in the middle of the night, held incommunicado, furnished with a lawyer who's a toady to the state, tortured for a confession, sent to Siberia, or executed with his widow receiving a bill from the State for the cost of the bullet.
But by all means, if you'd like to share your own superior experience with Soviet show-trials, or more thorough examination of them from afar, don't let me inhibit you. Best wishes, DK. If you or anyone close to you ever have the misfortune to become a criminal defendant, I hope you have the great good fortune for that to be in America.
Unlike you, I grew up in a communist country but luckily I didn’t have to deal with the criminal system. Even though I lived there I don’t talk about „Soviet style” trials because I’m ignorant on this subject. Do you understand what I’m trying to say?
I can tell you this though-communists and all the apparatchiks running the government entities there were more honest that most Democrats in this country.
Just ask anyone who came here from there 20-30 years ago. Soviets had nothing on Democrats in DC, New York or California.
I’d love to hear what grounds for appeal you noted?
How ironic that everything trump struggled to keep quiet before the 2016 election now has been made public in a very big way for weeks on end, before another election, and it likely will have no effect whatsoever on this election.
Correct if I’m wrong but has disqualification ever been tested in a presidential election?
No one (save maybe Trumps team, actually) would want to win by default. The American public wouldn’t want an election overturned on some legal technicality. Can you imagine Bush v Gore the other way?
Trump v. Anderson?
This trial and conviction have caused contributions to Trump’s campaign to radically increase and if he will be seen as a martyr by his supporters and a defendant whose trial was conducted in disregard of constitutional guarantees that protect all citizens
There is nothing good to be gained from this verdict other than the knowledge that our justice system works. Of course, my sense of schadenfreude has been satisfied, after seeing this Great Orange Neoplasm escape accountability for his entire life.
I've had some exposure to criminal law, but I'm really just a mere deal lawyer, although I did have a stint as an ALJ.
State court judges have greater reliance on judicial norms, experience and personal judgment than do Federal District Court judges, who must navigate within the confines of the sentencing guidelines. Here is now I imagine one line of thought.
1 Jail will not rehabilitate this felon
2 He is highly unlikely to express remorse
3 Other business owners and operators will be sufficiently deterred by the types of facts that were proven in this case and the consequences that follow from them
4 It is uncommon to incarcerate first-time non-violent offenders
5 There are practical difficulties associated with this felon's unique right to protection by armed federal officers. This will increase administrative burden and may require that he be held in solitary confinement for his protection. This is a measure that is normally reserved to prison authorities as a disciplinary measure and is widely seen as an enhanced deprivation of liberty
6 Alternatives exist to serve as punishment through the terms of probation. These include the length of probation, restrictions on travel, surrender of passport, frequency of interviews, etc. The special master's capacity to oversee the conduct of the felon's primary business pursuant to an unrelated civil case provides a safeguard against repetition of this type of offense.
Several good points here, with which I agree—thanks!
I am waiting for November-scorched earth and hell to pay when President Trump comes back to the WH.
Can't wait.
What’s your Plan B? It’s ok, I won’t dox you. You can share your fantasies about how you and your cohorts are going to take matters into your own hands. Any specific plans?
What? I follow the law even if I don’t agree with it. I will be taking it into my hands when I cast my vote. Seemingly intelligent people completely lost ability to think clearly. That’s why I also believe that Trump will be acquitted.
This entire discussion is silly in my opinion.
The truth is-everyone knows it’s sham but they pretend that it has legs to stand on.
Good. I thought the echo of the MAGA rhetoric meant you were looking forward to a course of retribution, rule by decree and all the other lawlessness on offer. Sorry to misinterpret. If you're voting for the former guy, that's all right, too.
Seems to me (as a former reporter) that the state was meticulous in the case it presented. Yet I'm amazed that Trump was convicted on all 34 counts. The case seemed complicated to me, which is why I thought the jury would not convict on all -- but they did! Credit to the prosecution.
I do think one of the complicated aspects is the “other crime” issue, but that’s an issue of law that can be raised on appeal.
But the existence of an “other crime” (and the underlying intent to conceal that crime) was a finding of fact, and the jury so found (unless you mean there is a Constitutional question?)
Did the prosecution present any evidence for the "other crimes"? I read the jury instructions, but I didn't read all the testimony or evidence. From what I saw in the jury instructions, it was up to the jury to decide whether any of the 3 potential "other crimes" happened:
1. Unlawfully influencing an election (NY statute). Was any evidence presented, or any precedent cited, that "paying someone not to tell embarrassing information" is "unlawful"?
2. Violation of tax laws (NY or federal or both)? Was any evidence presented that the misstatement would affect taxes? If it affected NY taxes, why was this not included in the indictment.
3. Violation of Federal Election Campaign Act. Was any evidence presented, or any precedent cited, that a candidate's use of his own money to support his candidacy, but not spent directly by the campaign, would violate the Act?
My question: is there an appeal that, as a matter of law, the prosecution did not make a case for an "other crime"?
I agree that the prosecution faces a significant hurdle on appeal due to the "other crime" issue. The jury was instructed that they could convict based on any of the theories for another crime, meaning all of them must withstand appellate scrutiny. If even one is found invalid, the conviction must be vacated and remanded for a new trial (since the jury might have relied entirely on the improper theory).
The New York statute appears to limit other "crimes" to offenses defined under state law, making reliance on federal election law as a predicate crime problematic. Even if federal law could serve as a predicate, it's doubtful the facts establish a violation. Trump spent his own money to pay Cohen to pay off Stormy Daniels—seemingly legal. The argument that this constitutes a campaign expense rather than a personal one is tenuous at best. An appellate ruling that hush money is a personal expense, not a reportable campaign expenditure, would unravel the conviction.
While Bragg celebrates, the conviction's survival on appeal is questionable and the process may span years. Having this historic conviction overturned years from now (after the election) could shake confidence in the democratic process on all sides.
Presumably they made enough of a case for the other crime that the jury found that there was an intent to commit at least one of them in every juror's mind
Well, that was my question. I've heard the prosecution claiming that Trump's payments were an unlawful attempt to influence an election, but I haven't seen any argument as to why that would be so. If Trump's books had recorded "payment to silence bimbo", would there have been any violation? As far as I know, it's lawful to pay someone not to publicly tell a story. It's lawful for a candidate to spend his own money to support his own campaign. So, two questions:
1. Was the payment unlawful in itself? If not, how can it be an "other crime"?
2. Did the prosecution present any evidence that the payments were unlawful? If not, it seems to me that the law would require dismissing the charge - you can't leave it to a jury to find a crime without evidence of a crime. The jury's role is to decide the credibility of evidence presented, and apply it to the law to determine guilt or innocence, not to decide without evidence.
This feels like grasping. The payment may not have been unlawful, but the way he went about it was, and the argument is that cooking the books was an attempt to unlawfully manipulate the election. One would assume that since he was found guilty of those things, the case was made for them.
The "other crime" was just one crime:
NEW YORK ELECTION LAW § 17-152 (conspiring to promote Trump's election (or prevent Biden's election) to a public office by unlawful means)
The 3 potential "unlawful means" were:
(1) violations of the Federal Election Campaign Act a.k.a. FECA;
(2) the falsification of other business records; or
(3) violation of tax laws.
Was the jury instructed that they can only convict if there was evidence beyond a reasonable doubt of a violation of each and every element of the above cited statutes? Such an instruction is a bedrock constitutional and statutory requirement
Have you not looked at the instructions?
It's bedrock for the crime actually charged. For the causing of records falsification, the jury was indeed instructed that they had to be unanimous as to every element of that crime, times 34.
In an obstruction of justice prosecution, though, for example, one can be found guilty of obstructing an investigation even if no charges were ever filed, much less every element thereof proved beyond a reasonable doubt.
Ms. Isgur and perhaps others have pointed out that people are routinely convicted, under both state and federal law, for obstruction of justice even though no specific crime was ever charged and no conviction was ever obtained. There's a nice discussion of this in the Mueller report. If the NY statute is constitutional (state & federal) as applied here, it's likely to be by analogy to obstruction of justice statutes, I think.
On the facts and law, I don't think it was a hard verdict to reach -- though politically the matter is highly charged. As a former (once and always, born and bred) New Yorker and graduate of Cardozo Law, I am very proud. However, of course Trump will appeal and of course the deniers will continue to blame everything on Biden and the Deep State.
I have no thoughts on sentencing except to say that Merchan is not likely to go easy.
I think we may not realize how dangerous this time is. Even those of us who are aware and know the law.
We are on a pinhead. That means us, the People, and us The U.S. We believe our republic cannot fall but history says different. This trial and the verdict are enormously important, a pivot point. But this may not be the only pivot point or the last one. Troubles are coming. The battle lines are being drawn.
I was recently threatened by a Trump supporter, who told me "We are coming for you!" Me? Who am I? An old lady with an education, some knowledge and some opinions.
What if Biden had been prosecuted and convicted of illegally having custody of confidential materials or aiding and abetting a bribe from a foreign agent? Would you have the same opinion?
There's a Democratic Senator on trial for accepting bribes right now and most dems I know are cheering for him to be thrown in prison for a good long time.
That Senator is not a former or sitting president and is at worst a corrupt NJ hack but one who stood up to Obama on the disastrous Iran deal
"... disastrous Iran deal"
Pray tell, what was the disaster that flowed from the Iran deal? The end of the world? The seven deadly plagues? I must have missed the news that day.
October 7 2023
Wow. No thinking at all. Typical MAGA.
I wouldn't have any problem with such convictions (after due process of law). But I certainly would not "have the same opinion." Nothing you described was even close to what Trump has done and caused or what he likely will do or cause if he's allowed.
Proof please?
At the risk of sounding naive what fid Trump do or cause or what was he likely to do or cause if he’s allowed ? Obviously his message resonated in much of the US
Well, there was the whole "find a loophole to overturn the election results, or failing that, just disregard the results" thing. Not that he's been convicted of that, but the evidence seems pretty strong.
That's the Georgia case and, somewhat tangentially, the DC case.
Such as ?
Trying to get Mike Pence to refuse to accept certified electoral votes.
Trying to get Georgia officials to "find" enough votes to make him the winner.
On a serious note as opposed to football spiking by either side: what are the chances Trump prevails on appeal? Seems to me there were a number of rulings that might give him some legitimate grounds. Plus the whole issue of an indictment that doesn’t really make clear what the 2nd crime he was trying to hide. Since this is a legal site, hopefully someone can provide some insight
He has a couple of nonfrivolous appeal points for sure, relating to the charge. On his best argument, from the way the statute is constructed, I think it's probably 80/20 that the NY Appellate Division, 1st Department, will agree with the way the charge handled the crimes whose concealment motivated the falsifications. But I also think that the statute itself may be subject to due process-related constitutional objections, of a sort which the NY courts interpreting this statute have previously rejected in other contexts, but which Trump will use to try to get SCOTUS review. His chances might actually be better before the SCOTUS on a cert petition than before the Appellate Division or NY Court of Appeals.
Trump will also have a large catalog of weak to frivolous appellate arguments, all with single-digit possibilities of success. His venue objections fall into the weak category. His complaints about the detail with which prosecutors were able to question Daniels are likely going to be doomed for opening the door themselves (by denying the affair), and by two sorts of waiver — by failure to object consistently enough, and by then pushing even wider open the door they'd themselves opened through aggressive cross-x on those details. So also very weak. His arguments of political persecution/selective prosecution are frivolous — he had no right to be indicted only by a Republican grand jury composed of Republican voters, nor any right to a Republican judge, nor to petit jurors who're Republicans, and all of said Republicans of the MAGA variety.
But I'm a civil trial lawyer not admitted in New York, and there are almost certainly better-informed members of Mr. Lat's audience who may weigh in.
Great stuff as usual, Beldar—thanks!
Thanks for the detailed reply.
What about the jury instructions? If there was no instruction as to the necessity of proof beyond a reasonable doubt is that a strong due process argument?
There was such an instruction, of course.
Was the jury told that they did not have to reach a unanimous verdict on all elements charged ?
READ. THE. JURY. INSTRUCTIONS.
If there was no unanimity required to be found on a predicate offense that is a very strong due process argument
https://www.nycourts.gov/LegacyPDFS/press/PDFs/People%20v.%20DJT%20Jury%20Instructions%20and%20Charges%20FINAL%205-23-24.pdf
Read the instruction as to reasonable dount-a very strong argument can be made that it did not require that the jury to find that the prosecution proved each and every element of the crimes charged beyond a reasonable doubt . I thought that this instruction was a vague boilerplate instruction that failed to meet the statutory requirement of NY's Crimimal Procedure Law 70.20 which sets forth:
"Standards of proof for conviction. No conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant's commission thereof"
Severe problems are 1- state court enforcing at all federal election law and that childishly wrong 2–2020 US Supreme Court case outlawing combined majorities. Terrible NYS problems but the Constituional problems directly contravene recent S Ct authority.
If there was no such instruction would that also be another due process argument?
Does anyone have the ACTUAL instruction regarding the 2nd crime? I’ve read conflicting things. But the consensus I’ve seen is that they had to unanimously find a 2nd crime but did not have to agree unanimously on what that crime was.
Yes, just google “Trump Jury Instructions” and links to multiple sources will pop up.
"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. "
The "unlawful means" could be:
(1) violations of the Federal Election Campaign Act a.k.a. FECA;
(2) the falsification of other business records; or
(3) violation of tax laws.
The unanimity instruction was completely consistent with NY law on burglary. The NY Court of appeals has been crystal clear that the prosecution doesn't even have to specify what the other crime intended to be committed is, so there certainly doesn't have to be unanimity among jurors on that point.
I did not read the judge's instructions. Did he perhaps tell them that a finding of guilt includes a finding that it was for the purposes of disguising other crimes?
Yes
As I've seen it explained, this is not quite true. To get to guilty, the jury needed to find (unanimously) that:
1. Trump commited the crime of falsifying business records. (Which, on its own, would be the misdemeanor).
2. Trump falsified the business records with an intent to commit another crime or conceal the commission thereof. (This is the step up to felony).
The prosecutors told the jury that the other crime here was Section 17-152, a New York statue that criminalizes "influencing" an election through "unlawful means."
Section 17-152 is one crime, not three, so to find Trump guilty, the jurors needed to unanimously agree that Trump commited the crime of falsifying business records with an intent to influence an election through unlawful means.
Where does the talk not agreeing on other crimes come from?
What the jurors did not have to agree unanimously on is what the unlawful means were.
Analogy: The Russian nobles who murdered Rasputin because they thought he was a bad influence on Tsar Nicholas II invited him to a party and gave him a lot to drink and food laced with drugs, then the shot him, then they threw him in a river. In a trial, a 12 member jury could convict the nobles of Rasputin's murder if they all believed beyond a reasonable doubt that the nobles murdered him. This would be a fair verdict even if 4 jurors believed that it was the drugs and alcohol that killed him, 4 thought it was the gunshots, and 4 thought it was throwing him in the river to drown.
That's the basic idea.
The 3 potential "unlawful means" were:
(1) violations of the Federal Election Campaign Act a.k.a. FECA;
(2) the falsification of other business records; or
(3) violation of tax laws.
This is not correct. The jury instructions clearly set out the three different potential crimes underlying the felony stepup. And they are explicit thar yhe jury need not be unanimous of which underlying crime(s) justify the stepup.
Those 3 were the "unlawful means"
He was given the opportunity to understand ALL THREE alleged “other crimes”.
An indictment does not have to state the facts underlying every element of the crime being charged. Those facts are presented at trial. That was done here. And for good measure, the three underlying crimes were contained in detail in the jury instructions. The jury then made their factual findings.
You are right some might think this statute is constitutionally defective. I disagree but we shall see.
Should the defense have been told the elements in the instructions to the jury at some point before the end of the presentation of the evidence?
All of that (as it relates to underlying crimes) was presented to the defense in pre-trial hearings. Also, the defense has tons of input into the drafting of the jury instructions. Nothing was hidden or a surprise.
I am a retired Philadelphia (and surrounding counties) defense attorney who practiced mostly in state courts - more civil than criminal, but I handled over the years a fair amount of criminal defense. If I were representing Trump, my advice would be to accept responsibility, show contrition and allow me to convince the sentencing judge that a reasonable time of probation or a suspended sentence would be apt under the circumstances. Given that Trump's crimes are Class E felonies (the least serious), it would under normal circumstances not be unreasonable to expect the judge to sentence to probation. However, Trump is not a normal defendant. He is incapable of accepting responsibility for his actions or being contrite. Worse, he continues to mouth off publicly about how he was innocent and his conviction and treatment are tremendously unfair. Plus, he continues to make statements that appear to be thinly vailed threats to the judge and prosecutors.
All this being the case, I am very hopeful that we will see Trump sentenced to some real time in jail, perhaps a year. Failing that, a sentence of home confinement with an ankle bracelet that monitors his whereabouts - and would prevent him from campaigning - would be satisfactory. I would want any home confinement, however, conditioned on Trump absolutely being forbidden from appearing on television for any reason, as he has sufficiently demonstrated that he is incapable of appearing anywhere or speaking without abusing the judge, court employees and prosecutors and their families.
For all the difficulties, a short sharp taste of jail seems appropriate. Then whatever someone else convicted of 34 low level felonies would get - fines, home confinement? I assume the sentence can be stayed pending appeal, so he can campaign. I have said for years that I hope the judge has authority to require a crewcut.
From the peanut gallery: my bet is he stays sentencing pending appeals, or pronounces sentence but suspends it pending appeals process. Not so sure about jail. Fines, probation, maybe ankle monitor house-bound with allowances for other trials [avoids the Secret Service in jail stuff], and some kind of ban on conducting business in New York, akin to disbarring a lawyer.
I agree judge will stay sentence pending appeal. Home confinement is tricky at Mar-A-Lago. There’s no golf course there, but would he be allowed to eat dinner on the patio with adoring crowds? Can judge require him to serve home confinement in Trump Tower? No comment on the crewcut?
Gotta keep the lice population in the pokey within acceptable limits. A crewcut sounds entirely reasonable.
Sure . Stick him in jail and you will at least still carry Vermont.
It's one of those days I won't forget. I feel hopeful.
Lots of great comments here from legal experts. As a political scientist, I thought I’d weigh in on what this might mean for Trump’s campaign. I’m extremely skeptical of polls/pundits that suggest that this will have either a massive or zero impact on the election. In my opinion, it’s somewhere in between. Most support for Trump/Biden is already baked in, but I do see this mattering for the small percentage of voters that will turn out in November but are not following politics closely and are perhaps leaning towards Trump because they remember things being better pre-COVID/inflation. I think being a convicted felon costs Trump somewhere in the region of 1-3% of the popular vote, and where exactly that lands matters a great deal considering how close things are expected to be.
Nate Silver, in a subscribers-only post, has pretty much the same analysis as you. There is a tremendous amount of uncertainty here, of course. The polls showing that a conviction will matter to some small percentage of voters were based on a generic, unspecified conviction (when very different cases were simultaneously proceeding in NY, DC, Florida, and Georgia).
It remains to be seen whether this specific conviction, on the most arcane and difficult to understand charges of all the pending prosecutions, will have a negative effect on Trump's vote totals. Presumably, we will have polls within a few days that will shed light on this.
Interesting—my thanks to both you and Nick Seabrook.
(At the gym this morning, I saw Fox news crowing about the $35 million that flowed into the Trump campaign coffers post-verdict.)
I heard that too. My reaction was: Trump got 74.2M votes nationally in 2020. If his conviction only produced less than $0.50 for each via donations that typically would start at $25, that's really not very impressive.
NYC clown show —a real stinker even among NY stinkers—has elevated a very flawed man into a hero. There are inverted flags going up all over the U.S. particularly in rural areas. The Trump website is overflowing with new donors. The Ds saddled with a Bozo have made the issue fairness rather than Trump. If there is any effort to restrain Trump’s campaign I would go direct to the U.S. Supreme Court under the new Machon exception to exhaustion of remedies.
Wasn’t part of Michael Cohen’s sentence attributable to the Stormy Daniel’s pay off?
Shouldn’t Trump presumptively get similar time for that conduct?
Cohen wasn’t “convicted” of a crime, he pled guilty. They have different effects.
What different effects?
To be clear, it is NOT necessary that the jury find that any underlying crime “existed” (i.e., that it was actually committed). And of course the underlying crime does not even need to have been allegedly committed by the defendant (it could be a third-party crime). All the jury needs to find that the defendant commited the primary act(s) with the intent to conceal “another” crime, even if the defendant was mistakenly wrong about the other crime. He’s not being charged with that other crime. Maybe that’s a shitty statute, I don’t know. But that’s all it requires.
If you are right that is an incredibly shitty statute even by New York standards
And unconstitutional. Thought crimes are not permitted.
Before I became a prosecutor, I asked my three attorney siblings what to expect. They said "We expect you to be able to look yourself in the mirror the same way on your last day as you did on your first." One of the rules I learned through holding the power is that just because you can bring a case doesn't mean you should. Any DA should know a President as a defendant will likely lead to some other DA in a "less enlightened" jurisdiction doing it to the next President. And so on and so on. The present Manhattan DA office just impacted the country in a very bad way. I remember Al Scotti's funeral, and watching Hugh Carey, long past holding office, walking to the front to pay respects to DA Morgenthau's Deputy and successor. I really wonder if that type of respectful appreciation by Chief Executives of the role of the DA has now, like a lot of past practice, been trashed. Would Scotti have allowed his Manhattan DA's office down this road? We all know the answer to that. DAs getting into politics taint every criminal prosecution going forward. The prosecution of murders, robberies and rapes is difficult enough without jurors wondering about a political angle by the prosecution office in a case of note which should never have been approved. Now every prosecutor in New York is stuck with being looked at in that way.
So you shouldn't charge someone who has committed a crime with a crime because a bad political actor might make it personal later? What stalwart values you have.
We can disagree about the wisdom of prosecuting politicians without suggesting someone has poor values. Whether you disagree or not, I hardly think taking the position that the health of the nation is more important than criminal prosecution is somehow evidence of bad moral character -- even if it's a mistake.
However, I suspect what he means is that you shouldn't charge someone with a crime when you wouldn't have charged someone who wasn't a politician -- and indeed you should be extra careful and reluctant to charge the politician.
And re: Trump, I think only the Florida case pases that bar. Maybe a differently charged case in GA would as well but Willis fucked it up. But this case was clearly brought because the DA was getting shit for not pursuing the earlier case against Trump.
Unfortunately lots of things are illegal in the US and if we accept a norm of digging for something to prosecute our political opponents with we'll end up needing to give our presidents general immunity which won't be good.
Except the entire point is that he committed a politician's crime. He's being charged for doing something only a politician would do. If you don't hold politicians accountable for monetary crimes related to their campaign, what are those laws for?
But that's the job of the federal election authority. If they charged him I'd be onboard -- though I dunno it's an easy case then.
This is an attempt to stretch a statute beyond how it's ever been applied before (hook not being a NY crime) to get someone because someone didn't like how the federal prosecutors handled things.
And that seems like a recipe for chaos. If Texas disagrees with DACA can they use the unprosecuted hook of illegal presence to turn every misdemeanor by a DACA recipient into a felony? But even if this wasn't a concern it raises exactly the concern of the OP.
Besides, the biggest problem here is the state court isn't well suited to actually figure out if the federal election activity was a federal crime.
It's not as simple as he did it to influence the election. For instance, even if you (a la Palin) buy clothes to influence the election you actually can't finance that with election money, you are supposed to spend your own cash on it and it's not clear the same isn't true here. If this had been brought in federal court we could have worked this all out.
I had thought there were interpretive problems with the federal election law in play as well. My understanding - albeit second hand - was one law says campaign funds cannot be used for these purposes and the federal law in question here is posited to turn the use of private funds in this instance into an unreported campaign contribution. Ergo, a logical tension about the meaning and interpretation of these laws.
If I’ve got it right - you know, about the meaning of the law being in question and therefore perhaps the constitutionality of the law - seems like a pretty serious issue that will need to be resolved on appeal.
Then, I really do think there’s a prosecutorial discretion issue here.
You can have a good conviction and still have a prosecution that never should have been brought.
I don’t really subscribe to the idea that just because you can construct a crime, you charge the crime. I think the right question is: Would anyone other than Donald Trump have been charged with this crime? I think the answer is likely: No.
[Aside: I never thought the Cohen plea ever made sense over the campaign finance issue. I just assumed it was kind of cloak and dagger cover for the congressional testimony that - as I recall - pretty blatantly painted a picture of FCPA violations over Trump Tower in Moscow. i.e., offering Putin the penthouse suite to get approval for the tower. How on earth did that go absolutely nowhere? When it did pretty clearly go nowhere, my reaction was: All these lawyers in Congress and not a single god damned brain among the lot of them.]
But back to prosecutorial discretion…I think it’s a separate and very serious issue exposed by this case. And we all know it’s there and lurking.
So, for instance, is the venue appeal a winner for Trump? Maybe not. But shouldn’t a prosecutor who believes in his case say, “Hey. I believe in the strength of my case and I don’t want to create even the appearance of injustice. Let’s take this to Westchester [or wherever].”
I am not actually making the argument that former presidents are above the law. But prosecuting a former president implicates all sorts of issues that are not in play for the normal citizen. And, if it were me as the prosecutor, I would think that - for the sake of the republic - if you do manage to convince yourself to charge this speeding ticket as a felony, you then need to seriously consider that while a venue change may not be legally required, it may be prudent in the context of the larger picture. I am not saying go to a Republican stronghold. But if you’ve got a good case why try the case with the home court advantage? Maybe that’s special treatment for a former POTUS. But it’s not FOR the former POTUS. It’s for the nation and preserving the perception that we are a nation of laws.
Then, I think there’s another question that may be a state law reform issue.
Should a low level politician, such as Alvin Bragg, really be able to make these kinds of charging decisions by himself?
This is a former President we are talking about here.
And I really do think that more people need to be deeply concerned about the gravity of charging a former president. [To be clear: I am totally fine with the federal prosecutions, including in particular the Florida documents / obstruction case.]
Is Lady Justice blind? Sure. I guess. But not really. Because again: it seems clear to me Trump was changed because he is Trump and that’s how it will appear to many. That ain’t blind. Or, at least, it is the appearance of an absence of blind justice.
So, you establish a process to insulate from the risk of the proliferation of politically motivated prosecutions.
And this is a real concern ya’ll. This is exactly the kind of stuff that happened in the years preceding the fall of the Roman Republic and the Rise of Empire. There were political battles over judicial assignments and then when a consul lost office and the cloak of immunity he had previously enjoyed, that consul was charged with a crime. These kind of political trials became commonplace and undermined the strength of civic (extra-legal) norms in Rome and made the stakes for elections existential.
When you make an election in a republic existential in nature: That’s not good. Because people will then do whatever it takes to win elections, including resorting to corruption and violence.
That state of affairs cannot last long in a republic.
And sure enough, it did not last long in the case of Rome. It was all this political intrigue, polarization and weaponization of the legal processes that ultimately made Julius Caesar more inevitable than Thanos. Whether it was Caesar or a Caesar of another name: the fall of the republic was coming.
So. Yeah. Should a county prosecutor really have the power to charge a former president without much more of a process and checks that take the seriousness of this prosecution seriously? Career Federal prosecutors concern me a whole lot less than the Alvin Braggs of the world. He may be a prosecutor. But he’s an elected prosecutor. He - and others like him - are much more of a political animal than career federal prosecutors that operate under political appointees.
Additionally, there’s another dynamic in play. I found it a little funny how hard WaPo stretched to argue that Bragg wasn’t backed by Soros. I mean. Really? So, Institution Y pledges at least $1mm to Bragg. One week later Soros gives $1mm to Institution Y. Plus Soros is on the record as having said that county DAs is a strategy he has been going after. And this isn’t Soros backing Bragg?
Ummm. Ok. Whatever.
I will also say that Soros is clearly getting a little
more covert here because when I first heard of this Soros prosecutor thing, I assumed it was more tin foil stuff from the far right. Then I looked up the campaign donations of a certain controversial prosecutor and there was the Soros funding clear as day.
And here’s the thing: There’s nothing wrong with Soros pursuing that strategy (albeit a little uncomfortable that he certainly seems to be feeding into the conspiracy theories a bit and a lot of people with these DAs turn out to be pretty unhappy with the job performance and hyper political decision-making of these DAs - or at least that’s my perception and explanation for why they tend not to have a terribly long shelf life in the counties they are elected in).
BUT should an official in an election campaign where all you need is a George Soros be THE official that can charge a former president? And shouldn’t we take seriously concerns about how that looks (particularly in light of some highly controversial charging and non-charging decisions by other county DAs backed by Soros funds).
And even if we are ok with all this here: Shouldn’t we all be concerned that this is a sword that can cut two ways?
I am not saying don’t charge Trumps. And I am not saying Bragg did not operate within the process in place.
But I am saying: Should this be the process in place going forward? Because. Jesus. It scares me.
The Supreme Court ruling in the immunity case has implications for some of the (valid) concerns you raise, so stay tuned for that!
If the immunity case comes out well considered but remotely clear in the future roadmap, we’re not all going to eventually realize it’s a lot like the constitution itself. Seems pretty well thought through until you run into the event horizon and you realize the thing is more weak points than strong points.
My gut is i want to see as little clear rules and bright line holdings in that immunity case as is possible.
Other than stuff that is like: Yeah, you can’t prosecute bush for Iraq or Obama for too many drone strikes.
But even that drone strike thing? Man. Dog. The devil is in the details. The American citizen abroad was probably ok. Maybe. But we’re getting real close to some lines there.
I really hate that we have to get into this stuff in this level of detail.
Nothing good will come of removing ambiguity on POTUS immunity. Nothing good.
I think you are right on target. It seems 99% likely to me that some two-bit prosecutors somewhere in Texas, Florida, Montana, or even the deep red parts of California are going to find some arcane way to charge Joe Biden with a crime once he leaves office.