This is Part II of a four part series that looks at the case New York state brought against President Trump that resulted in him being effectively labeled a “convicted felon.”
But when you take the time to look at the accusations and contemplate all of what the case was actually built upon, it’s obvious there’s more – and less – to this case than what meets the eye.
We ended the last post by enumerating the 34 felonies that President Trump was charged with. Each one of them represented a falsified business record, which is a misdemeanor, unless you can prove that the mischaracterization was done for the purpose of concealing another crime.
New York state insisted that the crime being concealed was a violation of either Federal Election Law, State Election Law, or Tax Fraud.
Take your pick. It could be one or all of the above.
It looked like this…
But at each stage of the prosecution’s case, you have some toxic flaws that neither the judge, nor the jury, nor the prosecuting attorney’s seemed willing to acknowledge.
Let’s take a look…
Here’s the problem…
Washington Examiner reporter, Byron York, explains:
Manhattan District Attorney Alvin Bragg has charged Trump with falsifying bookkeeping records of a nondisclosure payment in order to commit or conceal another crime, Bragg still hasn’t revealed what that other crime is. It’s really the key to the whole case. Without the other crime, there would be no charges against Trump in this matter. The fact that we — and that includes the defendant — still don’t know what the other crime is is one of the great injustices of a felony prosecution that never should have happened…[Bragg’s] theory is that if Michael Cohen paid Daniels $130,000 in the fall of 2016 to keep her from going public with her story that she and Trump had a sexual encounter and then Trump repaid Cohen in 2017, then that was a campaign contribution and should have been reported to the FEC. The payments were made “for the purpose of influencing any election,” the theory continues, and the Trump campaign should have filed a document with the FEC listing among its campaign contributions and expenditures that it received and spent $130,000 for “hush money.”
If you think that sounds a little odd for an FEC disclosure, you’re right. That’s where one of the critical witnesses to be called by the Trump defense comes in. Bradley Smith is a former chairman of the FEC, and on many occasions, including long before Trump, he has argued that there are all sorts of things a candidate can spend money on that are not legally classifiable as “for the purpose of influencing any election.” … Smith, having headed the FEC, has many examples from the commission’s enforcement of federal election law that illustrate his point. He knows what he is talking about, and it seems clear that his expert opinion is that paying off Daniels, no matter what one might think of it, is not a campaign expenditure or donation that FECA requires a candidate to disclose. The Trump defense plans to call Smith as a witness. Not because he has any personal knowledge of the Trump transaction but because he understands, and has enforced, the campaign law that Bragg’s prosecutors appear to be planning to use against Trump. But Merchan has forbidden Smith from testifying about most of the issues involved in the case.3
Judge Merchan has so restricted my testimony that defense has decided not to call me. Now, it’s elementary that the judge instructs the jury on the law, so I understand his reluctance. But the Federal Election Campaign Act is very complex. Even Antonin Scalia—a pretty smart guy, even you hate him—once said “this [campaign finance] law is so intricate that I can’t figure it out…
Someone has to bring that knowledge to the jury. That—not the law—was my intended testimony. For example, part of the state’s case is that they wrongly reported what they knew to be a campaign expenditure in order to hide the payment until after the election. Cohen even testified they just wanted to get past the election…
So, we were going to go over the reporting schedules, showing that even if they thought it was a campaign expenditure to be reported, an expenditure made on October 27 (when $$ sent to Daniels atty) would not, under law, be reported until Dec. 8, a full 30 days after election. But while judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen! (What an Expert Witness for Trump’s Defense Would Have Told Jurors If He Hadn’t Been Muzzled by the Judge)
Everything about the prosecution’s case requires the money paid to Stormy Daniels to be categorized as illegal in the context of Election Law. If the priority is a fair trial, it only makes sense that you would seek out the clarity provided by someone who can speak with authority as to whether or not Trump did, in fact, break the law from the standpoint of the FEC.
Bradley Smith is that authority and Bradley Smith was forbidden by Judge Merchan to provide that clarity.
Jonathan Turley is a professor at George Washington University Law School and has testified in United States congressional proceedings about constitutional and statutory issues. Since the 1990s, Turley has been a legal analyst for several major news networks and is currently a legal analyst with Fox News. He said this about the prosecution’s closing argument made by Joshua Steinglass:
Steinglass just said that it is a fact that these were campaign violations. Nothing from the judge and nothing for the defense. This jury has now been told dozens of times that the payments were campaign violations and the Judge is letting that false claim stand uncontradicted…He literally said that Trump lied in denying that these were campaign contributions because they were in fact such violations. Merchan is treating this all as argument. However, Steinglass is making a statement of law that is contradicted by a wide variety of experts.4
Among the “wide variety of experts” that Turley is referring to is Bradley Smith, whose testimony would’ve prevented Steinglass from invoking the discredited assumption that Trump had violated Election Law as an established fact (see “What an Expert Witness For Trump’s’ Defense Would Have Told Jurors if He Hadn’t Been Muzzled by the Judge” sidebar).
It’s as though the court wasn’t really looking for the truth as much as it was looking for an excuse to find Trump guilty.
Stay tuned for Part III!