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As former President Donald Trump awaits a Manhattan jury’s verdict, he can be forgiven for feeling that his criminal trial resembles a surreal “Alice in Wonderland” farce. He is left to peer through a “Looking-Glass” where everything is backward.
The culprit for this hallucinatory nightmare is District Attorney Alvin Bragg who brought a bizarre case based on warped interpretations of law and distorted facts. It is now up to twelve jurors to wade through the lunacy in search of the illusive truth.
Bragg’s fractured case requires the jury to reach several distinct conclusions on issues that make little sense to begin with. A Ouija board might help.
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Prosecutors allege that Trump falsified business records by booking payments to ex-porn star Stormy Daniels as “legal expenses” and that it was done to conceal or commit another uncharged crime not identified in the indictment. This is the so-called “mystery” or secondary crime that was never fully specified by the DA, even during the trial.
In other words, jurors must now guess. We’ll return to that in a moment. But the first step is to determine whether the record entries were accurate. If they were, there can be no secondary crime and the case should end with an acquittal.
This makes the records themselves the threshold question to resolve.
The Trump Organization controller testified that he alone made the decision to enter the term “legal expenses” in the company’s computer program. Why? Because the Daniels reimbursements were paid to the defendant’s lawyer, Michael Cohen, who handled the legal transaction.
No one, including Trump, directed the routine accounting decision. It was the only available choice that made sense. His critical testimony was corroborated by a bookkeeper. If believed, this effectively dissolves the prosecution’s case.
However, let’s say that jurors ignore such testimony and somehow agree that the records were falsified. They must then consider whether it was done to hide the other secondary crime. But what is that cryptic crime exactly? No one knows for sure, least of all the jury.
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The Sixth Amendment requires prosecutors to inform every defendant “of the nature and cause of the accusations” against them. The deliberate refusal by the prosecution to do so in this case is an egregious violation of a hallowed constitutional right.
Only in closing arguments —after the trial testimony concluded and all of the evidence was presented— did the prosecutor finally reveal the enigma: it was a federal election crime. But wait. He then contradict himself by claiming that was a state crime. Which is it? As a matter of law, neither.
It can not be the former because a local prosecutor has no authority to enforce a federal law. And it can not be the latter, because it was a federal election, not a state contest. State law has no application.
To complicate matters, Judge Juan Merchan is allowing jurors to consider a third option that prosecutors barely mentioned during the trial. That is, a tax law crime. Confused? You should be. Imagine what it’s like for the jury.
Evidence showed that reimbursements to Cohen were doubled so that he could pay appropriate taxes. Yet, prosecutors claim it was not taxable income but a nontaxable reimbursement, and that magically makes it a crime. Think about that for a moment.
Payment of taxes is now suddenly a crime? This must be the first case in American history where a person is being prosecuted for trying to pay taxes that the government now claims are not owed. It would be laughable, if it were not so serious. But there’s more.
Under Bragg’s twisted narrative, Trump willfully intended to commit fraud. Who exactly did he defraud? It wasn’t taxpayers, as noted above. It couldn’t be voters who had already cast their ballots by the time the “legal expenses” were booked after the election. That’s factually impossible. And it’s not the Federal Election Commission because the FEC concluded that the payments to Daniels did not qualify as a campaign contribution.
Yet, both the judge and prosecutors seemed utterly unbothered by the legal inconsistency and glaring uncertainty in the district attorney’s idiotic and senseless legal theory.
In furtherance of their concealment and fraud argument, prosecutors assert that Trump conspired with others to influence the 2016 election. Hold on. That’s not a crime. It’s what campaigns are designed to do. They exist for that very purpose. It can only be a crime if it was done by “unlawful means.” What was unlawful?
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Paying Stormy Daniels for a non-disclosure agreement is not illegal. It is perfectly lawful and quite common. Suppressing negative stories in the media may be unseemly or unethical, but it is also quite legal. Nevertheless, prosecutors used both to create the illusion of a crime where none actually exists.
In a normal case, both sides during closing arguments would explain to the jury how the law applies to the evidence presented at trial. But Merchan refused to allow it. He admonished lawyers in advance for planning to discuss the relevant law. That ranks high on the list of the most outrageous rulings ever rendered. It’s beyond incompetence, it’s a punitive deprivation of rights.
No one who has been following Merchan’s shameless antics is surprised.
As I explained in my previous column, the judge shredded Trump’s due process rights. He instructed the jury that they need not agree unanimously on which of the three secondary crimes or unlawful acts the defendant supposedly committed. Instead, they are free to pick and choose whatever they like without consensus. Four jurors may adopt one crime, four more can select another, and still four others can settle on the third. How can that be?
Unanimous jury decisions are a bedrock constitutional principle derived from the Sixth and Seventh Amendments. That requirement extends to all key issues, including every necessary element of an alleged crime and/or the establishment of secondary crimes.
This is an indispensable feature of jury trials. It’s what defines our rule of law and makes America’s system of justice the envy of the world.
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But in the trial of Donald Trump, jurors can agree to disagree while still reaching the ultimate verdict in unanimity.
Only in an “Alice in Wonderland” case with a Mad Hatter judge could the cherished principles of fairness be turned upside down.
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