There was a glaring mismatch between the charges against the former president and what prosecutors described as the essence of his crime.
Trump's Conviction Suggests Jurors Bought the Prosecution's Dubious 'Election Fraud' Narrative | Reason | Jacob Sullum:
May 30.2024 -"After deliberating for a little more than a day, a Manhattan jury on Thursday found Donald Trump guilty of falsifying 34 business records to aid or conceal 'another crime,' an intent that turns what would otherwise be misdemeanors into felonies. If you assumed that the jury's conclusions would be driven by political animus, this first-ever criminal conviction of a former president is the result you probably expected in a jurisdiction where Democrats outnumber Republicans by 9 to 1. But in legal terms, the quick verdict is hard to fathom....
"Manhattan District Attorney Alvin Bragg's case against Trump stemmed from the $130,000 that Michael Cohen, then Trump's lawyer and fixer, paid porn star Stormy Daniels shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump reimbursed Cohen in 2017, prosecutors said, he tried to cover up the arrangement with Daniels by pretending that he was paying Cohen, whom he had designated as his personal attorney, for legal work.... Cohen was the only witness who directly confirmed those two points.... But even without Cohen's testimony, there was strong circumstantial evidence that Trump approved the payoff and went along with the reimbursement scheme. The real problem for the prosecution was proving that Trump falsified business records with 'an intent to commit another crime or to aid or conceal the commission thereof' — the element that was necessary to treat the misleading documents as felonies....
"According to one theory, Cohen made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA), when he fronted the money to pay Daniels. Cohen pleaded guilty to that offense in 2018 as part of an agreement that also resolved several other, unrelated federal charges against him.... It is unclear whether Trump violated FECA by soliciting Cohen's 'contribution,' a question that hinges on the fuzzy distinction between personal and campaign expenditures. Given the uncertainty on that point, it is plausible that Trump did not think the Daniels payment was illegal, which helps explain why he was never prosecuted under FECA....
"According to a second theory, Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. Although that violation is described as 'criminal tax fraud,' Merchan said it did not matter that Cohen's alleged misrepresentation resulted in a higher tax bill.... Putting aside that counterintuitive definition of tax fraud, this theory required believing that Trump, when he reimbursed Cohen, not only contemplated what would happen when Cohen filed his returns the following year but also thought that 'unlawful means' somehow would influence an election that had already happened. The logic here was hard to follow.
"Likewise with the third theory of 'unlawful means.' Prosecutors suggested that Trump's falsification of business records was designed to aid or conceal the falsification of other business records.... Prosecutors said the records related to Cohen's dummy corporation, for example, were falsified because they misrepresented the nature and purpose of that entity, which by itself is a misdemeanor. That misdemeanor was the 'unlawful means' by which Trump allegedly sought to promote his election, another misdemeanor. And because Trump allegedly tried to conceal the latter misdemeanor by falsifying the records related to Cohen's reimbursement, those records are 34 felonies instead of 34 misdemeanors. The theory that Trump falsified business records to conceal the falsification of business records was 'so circular as to produce vertigo in the jury room,' George Washington University law professor Jonathan Turley said....
"To disguise the difficulties with its dueling theories, the prosecution averred that Trump committed 'election fraud'.... During his summation, prosecutor Joshua Steinglass called the nondisclosure agreement with Daniels 'a subversion of democracy.' He said it was an 'effort to hoodwink the American voter.' He told 'a sweeping story about a fraud on the American people,' as The New York Times put it. 'He argue[d] that the American people in 2016 had the right to determine whether they cared that Trump had slept with a porn star or not, and that the conspiracy prevented them from doing so.' Did the American people have such a right? If so, Trump would have violated it even he had merely asked Daniels to keep quiet, perhaps by appealing to her sympathy for his wife. If Daniels had agreed, the result would have been the same. As the prosecution told it, that still would amount to 'election fraud,' even though there is clearly nothing illegal about it. The jurors evidently bought this cover story....
"In short, there was a glaring mismatch between the charges against Trump and what prosecutors described as the essence of his crime, which is not a crime at all.... That approach suggests several possible grounds for appeal....
"Last week, New York Times columnist David French worried about the consequences of a conviction that is overturned on appeal. 'Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon and the Biden campaign runs ads mocking him as a convict,' he wrote. 'If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law.' In his desperation to prevent Trump from reoccupying the White House, Bragg has already accomplished that."
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