• So Much for Lawfare? Trump Found Guilty and So What

    June 5, 2024 // 15 Comments »

    A New York jury convicted Donald Trump of 34 counts of falsifying business records in connection with buying the silence of a porn star. He is the first American president to become a felon. The verdict is not unexpected from the deep blue Democratic enclave of Manhattan; the larger question is if lawfare will defeat Trump on November 5.

    The jury found Trump faked records (hiding hush payments as “legal expenses”) to conceal the purpose of money given to the onetime attorney Michael Cohen. Trump was actually reimbursing Cohen for a $130,000 hush-money deal struck with porn star Stormy Daniels, to silence her account of an affair with Trump. The affair was in 2006, a decade before Trump was elected president. The falsification of business records took place in 2017, after Trump was already in the White House and thus could not have influenced the election. He was found guilty nonetheless.

    For the jury to reach its unanimous decision of guilt on all 34 charges, the key was believing two witnesses over Trump.

    There are only two people on earth who know if an affair actually took place between Stormy and Trump. Trump said no, Stormy said yes and the jury agreed with her, fully absent of any further actual evidence. Daniels benefitted greatly from her claims to having the affair, and violated a nondisclosure agreement she voluntarily signed and accepted money for, to achieve her goals. “Proving” the affair was the base upon which the rest of the case to find Trump guilty was made.

    It is important to understand that having an affair and paying off someone to remain quiet about it are not crimes, even for a presidential candidate. Nonetheless, the prosecutor claimed in closing arguments Trump “hoodwinked the American voter” with a conspiracy to influence the 2016 election. In addition to those who may have benefitted from the plan, “all roads lead to the man who benefited the most: Donald Trump,” Joshua Steinglass told the jury.

    But the witness whose testimony was fully believed by the jury, and whose testimony will see Trump receive a criminal penalty when he is sentenced on July 11 (four days before the Republican National Convention!) is Michael Cohen. In the total absence of physical evidence and in the face of Trump’s claims to the contrary, Cohen served as connective tissue for many disparate elements. It was Cohen who claimed Trump masterminded the plan to hide the payments to Stormy. It was Cohen who said the 34 checks and invoices, only nine of which were signed by Trump himself, were not for legal expenses as they were labeled but were to reimburse Cohen for paying off Stormy. Stormy’s name appeared on none of the 34 documents, a fact which instead of exonerating Trump became under Michael Cohen’s testimony the linchpin of the conspiracy to falsify business records. Todd Blanche, a lawyer for Trump, told jurors the case hinged on the testimony of Michael Cohen, whom he called “the greatest liar of all time.”

    Nearly incredibly (Trump’s defense team called Cohen a “walking reasonable doubt”) the jury believed Cohen based on nothing but his good word. This is despite Cohen having gone to jail for perjury, been caught lying to Congress, being disbarred, and actually telling a lie during his testimony at the instant trial. It remains difficult to understand how a jury could objectively grant so much credence to Cohen in the face of his record of lying to his own advantage. Every critical element of the case came down to whether his word could be trusted. That is what convicted Trump. You might have thought Robert De Niro was leading the deliberations.

    There’s more. For jurors to have found Trump guilty of all 34 counts, they must have concluded beyond a reasonable doubt not only that Trump falsified or caused the falsification of business records “with intent to defraud” but also that he did so with the intent to commit or conceal another crime. That second element — the intent to commit or conceal another crime — elevates the charges to felonies and got around the statue of limitations that usually governs misdemeanors such as false business records. To reach this conclusion the jury had to also believe Cohen that Trump’s primary intent in all this was election influence and not, as Trump claimed, to hide the affair from his family.

    There are many questions surrounding the jury’s verdict, and the fact pattern of the case itself, all of which should come out in Trump’s inevitable appeal. With that in mind, the actual legal conclusion of this case is far into the future, almost certainly after the November 5 election. But that begs the more important question: does any of this matter to voters? This is lawfare, not justice, after all. “The real verdict is going to be November 5, by the people,” said Trump.

    CNN, for example, concluded “Donald Trump, who built a mystique as the brash epitome of power, has never been more powerless to dictate his own fate. His reputation, future, and even perhaps the White House’s destiny, [was] placed in the hands of 12 citizens of his native New York City, proving that not even once-and-possibly future commanders in chief are above the law.”

    So a victory for Democratic lawfare? Maybe not. Trump remains eligible to campaign for the presidency and serve if elected. None of the other lawfare shots is likely to conclude before November.

    So does it matter? A majority of registered voters said a guilty verdict in Trump’s trial would make no difference in their vote in the 2024 presidential election. Across all registered voters, 67 percent said a guilty verdict would have no effect on their vote, while 17 percent say they would be less likely to vote for him and 15 percent say they would be more likely, according to the NPR/PBS News Hour/Marist poll released before the verdict. An ABC News poll earlier this month showed 80 percent of Trump’s supporters say they would stick with him even if he’s convicted of a felony in this case. Some say they would either reconsider their support (16 percent) or withdraw it (four percent.) Similar polls followed Trump’s defeat in New York courts over supposed real estate fraud.

    And Biden knows it. A Biden campaign spokesman said Trump’s conviction showed “There is still only one way to keep Donald Trump out of the Oval Office: at the ballot box. Convicted felon or not, Trump will be the Republican nominee for president.”

    As in other Third World countries where the judiciary is used to smite political opponents, let us hope the people can see the truth, as they still hold the final card to be played. The Deep State has tried from day one to destroy Donald Trump — Russian collusion and dossier hoax, pee tape accusation, Mueller hearing and report, Emoluments Clause, various calls for extra-legal interventions and coups, Alfa Bank hoax, Impeachment I, Impeachment II, demands Mike Pence invoke the 25th Amendment, MSM blackout of Hunter Biden laptop story, Twitter purge of conservative accounts, FBI raid on Mar-a-Lago, Letitia James prosecution “show me the man, and I’ll show you the crime” with no victims, no monetary loss but an effort to bankrupt Trump with civil judgment, Colorado attempt to remove Trump from state ballots over the 14th Amendment, and false statements Trump will “take revenge,” “demand retribution,” ensure a “bloodbath,” and “end democracy” (America’s last election if he wins.)

    Trump meanwhile has characterized this trial, and the others, as unjust, rigged, lawfare pure and simple. He has kept the voters’ eyes not on who he is (his personal life has been baked-in to the vote long ago) but on what he represents to the electorate. As such, it is hard to see this guilty conviction, however unfair, as mattering too much come November.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    It Comes Down to Intent (Stormy Weather)

    April 30, 2024 // 5 Comments »

    The critical element in the Trump “hush money” trial and the factor most likely to result in a reasonable doubt, is intent. What did Trump intend by paying Stormy (if indeed he did…) to keep quiet about an affair (if indeed they had one…)

    For a guilty verdict, the prosecution must prove Trump had an affair with Stormy Daniels, paid her to be quiet about that affair, and that the principal purpose of the payment was to influence the outcome of the election, that the payment was from campaign funds (itself illegal in the amounts paid and lack of disclosure) and that Trump falsified business records with the intent to characterize the payment not as hush money but as legal expenses. Believe it or not, that’s the actual charge here when all the dust is blown away, falsifying business records.

    Before we get to the meat of the case — intent — a warm-up point. There is nothing illegal about paying out “hush money” per se. It is called a settlement and lawyers negotiate them all the time for clients via NDAs, non-disclosure agreements. A person receives a sum of money to not speak about some event, usually as a way to avoid a lengthy and often embarrassing public trial. So the term “hush money” is a bit disingenuous.

    As for the affair itself, the jury will need to weigh the statements of the only two people on earth who know the truth, Trump and Stormy. If you have nothing to “hush” you have no case. The jury will also need to weigh out whether money was paid to Stormy by Trump, and there again you have only two people on earth, former Trump lawyer Michael Cohen and Trump himself, one is lying. The so-called receipts for the payments are checks signed by Cohen, Don, Jr., and the former, and convicted, Trump CFO (who ain’t sayin’ ‘nuthin’ ’bout ‘nuthin here), but not Trump. The checks are claimed to be for payments to Stormy, again by Cohen and denied by Trump. No proof of payments for the purpose of hushing someone, you have no case (Cohen said he created fake invoices for legal services to cover-up the money.)

    The money must also come from campaign funds to end up as being illegal; it cannot be Trump’s personal money. This is because campaign finance laws limit the amount of a personal donation and require disclosure for a candidate’s own money donated to the campaign. Where did the money come from? Lastly, the prosecution must convince a jury that all of this, events from up to  nine years ago, usually charged as a misdemeanor, is actually worthy of a felony conviction. The prosecution must find a way, past the hoopla, to prove these points.

    But even if the jury can be convinced of the above points, largely on personal claims by disbarred lawyer and convicted felon and perjurer Michael Cohen, the case hinges on what was Trump’s intent all along.

    Trump may claim he need not discuss intent because there was no underlaying affair to begin with. More likely, however, at some point he could state something in legalese along the lines that if some sort of affair took place and if he paid Stormy to be quiet about it, his purpose was only to spare his wife and son further embarrassment. He was simply a marriage cheater. Besides, the infamous “Access Hollywood” tape was already out there, the one where Trump bragged about grabbing women by their private parts, and so how much of an influence could one more affair have on the campaign? Trump’s lawyer has already proposed another sweeping explanation in his opening statement to the court, saying “there’s nothing wrong with trying to influence an election. It’s called democracy. They put something sinister on this idea as if it were a crime,” he continued. “You’ll learn it’s not.”

    So the problem is, and it is a big one, intent. You have to intend to violate campaign finance laws, not make a mistake or just act like a sleaze. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump’s wife and kids, then the money was essentially a campaign contribution and a new set of laws kick in. But “it should be clear,” said the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.”

    The prosecution has already begun setting the stage for the jury as to Trump’s intent with its first witness, former National Enquirer publisher David Pecker. Pecker testified at a meeting he and Trump (and Cohen) discussed how they might “catch and kill” negative stories during the campaign. If someone seemed ready to come forth with something that might hurt Trump, Pecker could “buy” the story from that person with the intent to simply hold on to it and never actually publish anything. That, the prosecution claims in what some lawyers call “storytelling,” will show Trump already had hiding stuff on his mind and worked out a mechanism to hush up a negative story. But if so why wasn’t that mechanism — the Enquirer route of checkbook journalism — used with Stormy? The jury will need to decide. FYI, prosecutors gave Pecker and another Enquirer executive immunity from prosecution so that they remain unindicted co-conspirators.

    What you are likely to hear in the media, and from the prosecution, is that this trial is really about something much bigger than false business records. It is about Trump trying to steal the election, something they’ll claim has plenty of proof of intent behind it (see January 6.) Never mind all the technicalities of campaign finance law and all the salacious details provided by ex-con disbarred lawyers and porn stars, this is about something we all know to be true, election fraud, the desire by Trump to win at any cost. He was afraid of what effect Stormy might have. He laid out plans with the Enquirer, used with another alleged extra-marital girlfriend, Karen McDougal, to kill bad news. He directed Michael Cohen to pay off Stormy. He had records altered with an intent to commit or conceal the real crime. He created a criminal conspiracy to help manipulate the election. He is guilty of something.

    We’re left at this early point with the question that nags everything to do with Trump — so what? It has been long-established Trump’s slimy personal life matters little to voters. Trump himself has done a masterful job of setting the stage for all of his trials, labeling them in bulk election interference and an attempt to use “lawfare” to prevent him from even campaigning for the presidency. The “so what” question here is so what if Trump is found guilty? In whatever form this all shakes out, guilty or not, will it matter on the one day it matters, Election Day 2024?

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Trump and the First Amendment, Both on Trial, Again

    December 9, 2023 // 4 Comments »

    No former president has challenged the limits of freedom of expression like Donald Trump. At times rude and always overbearing, Trump has tested the boundaries of what can be called political speech. Here’s the latest.

    The most significant challenge to the First Amendment came during Trump’s penalty phase trial for fraud, based on his over-valuing his properties in New York to obtain favorable loan rates. Trump muscle-tussled there with the presiding judge, Arthur Engoron and, oddly, his law clerk seated beside him on the bench. Already upset over what he felt was the clerk’s overextended involvement in the trial (to include whispering in the judge’s ear) Trump seized on a vanilla selfie photo of the clerk with Democratic Senator Charles Schumer to taunt her with the phrase “Schumer’s girlfriend” and insinuate as a Democrat the clerk was inherently biased against Trump.  In the way things work in 2023, these fifth grade-level slurs plus a few Trump complaints online about Engoron himself being biased morphed into “threats” somehow. Engoron went as far as to suggest Trump was sending attack messages to his MAGA army (“targeting”) and that lives were in danger.

    In retaliation Judge Engoron slapped a gag order on Trump, later extended to his attorneys as well. The order prohibited Trump from commenting on the trial, out loud, in the press, or on social media, and specifically said the law clerk was off-limits. Trump paid little attention to the order and was fined twice, for a total of $15,000, for violating it. Trump called Engoron an “extremely hostile” judge. His lawyers said there was evidence of “tangible and overwhelming” bias. Trump’s lawyers then filed a lawsuit against Engoron challenging his gag order as a violation of the First Amendment.

    Lawyers for Engoron argued he and his staff received hundreds of anti-Semitic calls and letters. They blamed Trump’s comments about Engoron and the clerk for amplifying his supporters’ anger toward them and said the clerk is “playing Whack-A-Mole now trying to block her phone number.” “It’s not that Mr. Trump has directly issued threats to the staff and Judge Engoron, it’s that what he’s said has led his constituents” to make threats, the lawyers argued, comparing the potential effect to the January 6 riot and a violent attack on Nancy Pelosi’s husband. “That is not political speech. That is threatening behavior and it should be stopped,” Engoron’s lawyers argued.

    The appeals forum which heard the case disagreed, particularly about the part saying what Trump was engaged in was not political speech. Judge David Friedman of the state’s intermediate appeals court issued a temporary stay suspending the Engoron gag order and allowing the former president to speak freely about court staff while the longer appeals process plays out. Friedman questioned “Engoron’s authority to police what Trump says outside the courtroom. He also disputed the trial judge’s contention that restricting the 2024 Republican front-runner’s speech was necessary or the right remedy to protect his staff’s safety.”

    Another gag attempt was also struck down last month, after the judge overseeing Trump’s Washington J6 case briefly paused a gag order she had imposed on him. Trump reacted to this three times in three days, calling Special Counsel Jack Smith “deranged.” Twice he weighed in about the deposition testimony of his former chief of staff, Mark Meadows, who could end up a witness at the trial. These moves prompted Smith’s team to ask the judge, Tanya Chutkan, to reinstate the gag order. She put the order back in place, though it has been frozen again as a federal appeals court considers whether Judge Chutkan properly imposed it in the first place. That temporary suspension left Trump free of all of the gag orders placed on him.

    Long term, a federal appeals court panel appeared poised to significantly narrow the gag order imposed against Donald Trump by the J6 judge Chutkan. The three-judge D.C. Circuit Court of Appeals panel raised concerns the order — which bars Trump from criticizing witnesses, prosecutors, and courthouse staff — created murky restrictions stifling the former president’s right to push back against his detractors, particularly in the heat of the campaign.

    What at first seems novel — it happened mostly on social media!– and soooooooooo Trump — the insults, the elementary school-quality teasing — was in fact at the core of what the First Amendment is all about. Political speech is among the most protected forms of speech, more so political speech critiquing the government. In fact not novel at all, Trump was engaged in the most basic form of expression designed to be protected by the First Amendment.

    Judge Engoron, standing in for King George here, played the role of evil government perfectly. He chose to use the power of government, the gag order, etc., to stop Trump (who claims the trial is political persecution in the first place) from criticizing the government, in the guise of his court, and then doubled-down by extending the order to Trump’s lawyers, and then triple-downed the whole mess saying the gag applied 24/7 to those named, all way beyond the limited point of a gag order (proper use is almost always to shield important information from a jury to not prejudice a case.) A gag order should enhance democracy by protecting the right to a trial by jury, not run rough shod over it silencing the political speech of someone on trial.

    The hardest thing sometimes to accept about the First Amendment is it often protects speech you don’t like made by people you don’t like, in this case Trump, who is presumed crude and guilty by some half of the electorate. This idea is captured in the quote”I disapprove of what you say, but I will defend to the death your right to say it,” often attributed to Voltaire, and apparently missing from both Judge Engoron’s and most undergraduates’ education. Those who bleat support for Israel/support for Palestine has no place on campus fall squarely into the same narrow box as Engoron, wanting to block speech which personally threatens them but does not rise to the level of threat established by the Supreme Court, or offends them, somehow believing the First Amendment does not protect “hate speech.” While speech might be offensive — or even feel threatening — to some people, to others “it is an expression of a political opinion, an unfiltered reaction to a recent event, or an attempt to rally support for a cause. The freedom to share provocative ideas and spark robust debate about political issues is essential to democracy, social justice, and progress.”

    That’s exactly what Trump is doing, criticizing his trials and their participants in real time via press conferences and especially social media, all protected by the 1A. Victory Trump, victory First Amendment.

     

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump