As We Await the Verdict

The jury is out in the Democratic Party’s New York prosecution of Donald Trump. We should have a verdict by the weekend. In the meantime, here are some thoughts.

This prosecution is a political act, intended to disable Donald Trump and help win the 2024 election for Joe Biden. It is not even in the ballpark of being legitimate law enforcement. I think that most pundits who have commented on the case have given it too much credit. It is an outrage that such a ridiculous prosecution has been brought, and the only things that can explain it are the insane hatred that liberals feel toward Trump and the win-at-all-costs mentality of the Democratic Party.

This is often referred to as the “hush money case,” but paying hush money is perfectly legal. Based on press accounts, I wonder whether the jury even understands that there was nothing wrong, legally, with Trump paying Stormy Daniels to keep her mouth shut. The alleged “crime” was characterizing the Trump organization’s payments to Michael Cohen’s law firm, reimbursing Cohen for making the payment to Daniels, as “legal services” in corporate records.

This is about as absurd an excuse for a crime as one can imagine. To begin with, it is trivial. Moreover, it is not at all clear that the characterization was wrong. Cohen paid Daniels, and the Trump organization reimbursed Cohen’s firm. Reimbursements of expenses paid by law firms on behalf of their clients are commonly included on bills for “legal services.” So what?

But all of that is moot, since filing a false corporate document is a misdemeanor on which the statute of limitation ran long ago. It can be revived as a felony only if the false filing was made in order to cover up another crime. This is where things get truly ridiculous.

With the trial now complete, we all should know what the “other crime” was that the Cohen filing supposedly covered up. But the prosecution still hasn’t made up its mind, and Judge Merchan has helped them out by telling the jury that if they agree that Trump was covering up a crime–any crime!–they can find him guilty, even if they don’t agree on what the supposed crime was. That is absurd. More fundamentally, from press accounts, I can’t even tell whether the jury has been instructed on the elements of whatever “other crimes” the prosecution wants to talk about, so that they can at least take a shot at deciding whether Trump violated them.

The prosecution has suggested that the allegedly incorrect Cohen invoice was intended to cover up a campaign finance violation, i.e., paying Daniels to keep quiet. Here again, I think that most pundits have given this theory too much credit. In my opinion, it is ridiculously bad. It simply isn’t true that spending your own money–not campaign funds–to discharge a personal liability violates any campaign finance law. The federal government, not New York State, is responsible for enforcing federal campaign finance laws, and it has not asserted a violation here, nor could it.

So in legal terms, the Democrats’ prosecution is a joke. That said, what is the jury likely to do with it?

I have no idea. I have tried quite a few jury cases, over 100. Some of them were large, involving hundreds of millions of dollars, and got a lot of local publicity. But I never tried a case where passions ran so high, where one party was hated by a large majority of potential jurors, and where political loyalties outweighed everything else. And, of course, my experience is all civil, not criminal.

That said, any trial lawyer, civil or criminal, will tell you that the most important thing he does is pick the jury. The number one variable in any case is, who decides it? The Democrats brought this shameful prosecution in New York because they knew they would get an overwhelmingly anti-Trump jury.

So we can only hope that on that jury, there are a couple of men or women who not only understand that they are being played for political pawns by the Democratic Party–I suspect that all of the jurors know that–but are willing to stand up against the Democrats’ attempt to turn the United States into a banana republic, whatever the risk to their own personal safety might be.

Experience has given me a lot of faith in the basic fairness of juries, although, as I said, I have never tried a case remotely like this one. So I rate the odds of conviction close to even.

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