In my opinion, Trumpsters and other right-wing acolytes of Donald Trump are correct in their assessment of the grave abuse of prosecutorial and judicial power that led to his criminal conviction. However, given their blind allegiance to the former president, what they are unable to see is that Trump is largely responsible for his own woes in the New York proceeding. Moreover, while they are able to see that Trump is clearly a victim of such abuse, they are unable to recognize that he is far from being a hero.
Anyone who objectively analyzes the events leading to Trump’s conviction can easily see what happened here. Trump’s enemies have been out to get him for a long time. When New York prosecutors discovered that Trump had falsified private business records to hide his affair with porn star Stormy Daniels, they had him dead to rights … except for two things: (1) The offense is only a misdemeanor and (2) More important, the two-year statute of limitations on that misdemeanor offense had run, which operated as a bar to prosecution.
Stormy Daniels. Licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.
Rather than just drop the matter, which is what they should have done, the prosecutors, led by Manhattan District Attorney Alvin Bragg, instead bent over backwards to develop a farfetched felony theory, one that was based on the notion that the falsification of business records was done to accomplish another crime — an offense that was not barred by the statute of limitations.
Yet, that other crime was never clearly defined. It is an elementary principle in criminal law that the defendant has the right to have the indictment clearly advise the defendant of what he is being charged with. The indictment in this case never did that. Equally egregious is the fact that in his charge to the jury, the presiding judge, Juan Merchan, gave the jurors the option of choosing from three different theories but not requiring unanimity among the jurors as to which theory they were settling on. It is an elementary principle of criminal law that a verdict in a criminal case must be unanimous on all essential elements of the crime.
One of the most amusing aspects of the case was the prosecution’s assertion that the falsification of business records was intended to influence the 2016 election. Why is that amusing? Because the falsification of the records occurred after the election, not before it. How could the falsification of records after an election influence an election that took place before the falsification?
It is also a virtual certainty that Engoron committed reversible error when he permitted Daniels to go into explicit detail about the affair she had with Trump. That evidence was clearly irrelevant with respect to the charge of falsification of business records and was clearly prejudicial.
Thus, in my opinion, it’s a virtual certainty that Trump’s conviction will be reversed on appeal. But that’s besides the point, given that the appellate courts will not issue a ruling in the case for several months and almost certainly after the election in November. In my opinion, the whole point behind the prosecution was to secure a conviction before the presidential election, which would enable Trump’s enemies to claim that he is a “convicted felon” and, therefore, hopefully deny him reelection.
However, it is also worth pointing out what loyal right-wing Trumpsters simply cannot bring themselves to acknowledge, which is this: (1) Trump himself is largely responsible for his woes in New York and (2) While Trump is clearly a victim of prosecutorial and judicial abuse, he is certainly no hero.
Let’s review the pertinent facts.
In 2006 Trump chose to have an extramarital affair with Daniels. No one forced him to do that. He made the choice himself. If he thought that he could keep a porn star from bragging about having had sex with a famous man like Donald Trump, he was naive to the extreme.
Okay, we all make mistakes in life. Trump made a bad one. But when it came to the 2016 election, he compounded that mistake by making more bad choices, which ultimately led to his conviction.
Once Trump began running for president, Daniels naturally recognized that her one-night stand with Trump was worth some money. As she began shopping her story to various news outlets, Trump decided to try silencing her with a hush-money payment of $130,000. No one forced him to do that. He chose to do it all on his own.
He could have chosen a different route. He could have chosen to own up to what he had done, acknowledged that it had been a mistake, and apologized for it. Instead, he decided to try covering it up with the payment of a large amount of hush money to Daniels.
In the process, he began lying about having had the affair itself. It would be a lie that would have fateful consequences for his criminal trial. That’s because throughout the trial, Trump claimed that he wanted to testify. But that itself was obviously a lie. If he really wanted to testify, nothing could have stopped him. Not the judge, not the prosecutor, not the jury, and not even his own lawyer. If a defendant in a criminal case wants to testify, he has the absolute right to do so.
But Trump knew that if he testified, the first question he would be hit with on cross examination would be: Did you have the extra-marital affair with Stormy Daniels? At that point, Trump would be trapped. If he answered truthfully, everyone would know that he had been lying when he denied having the affair. Once a jury knows that a defendant is a liar, that’s not a good thing for the defendant. But Trump also knew that if he took the witness stand and persisted in his false denial of the affair, he would later be indicted and almost certainly convicted of perjury. After all, how many people are going to believe that the tight-fisted Trump paid $130,000 to a porn star to buy her silence about an affair that supposedly never took place.
Moreover, Trump was claiming that the $130,000 that he paid to his lawyer and “fixer” Michael Cohen was actually for “legal services” rather than reimbursement for the $130,000 that Cohen had paid to Daniels at Trump’s behest. But the legal service that Cohen had performed was the preparation of a “non-disclosure” agreement with Daniels. The preparation of such an agreement takes about one hour at the most. Assuming that Cohen charged an hourly rate of $500, it’s rather obvious that a legal fee of $130,000 for preparing such an agreement would be somewhat exorbitant. Trump had to know that if he took the witness stand, the jurors would never buy his story. After all, Trump would still have to explain why Cohen paid the $130,000 to Daniels.
What about Cohen himself? Trump chose to hire him as his lawyer. He didn’t have to do that. He could have hired an honest, ethical, independent-minded lawyer, one who would have said, “No, I will not let you participate in this hush-money scheme and I certainly will not participate in it myself.” An honest, ethical, independent-minded lawyer would also have kept Trump out of trouble by preventing him from falsifying the business records.
But that is precisely why Trump chose Cohen as his lawyer — because he was the type of lawyer who would engage in illegal, shady types of deals. Birds of a feather flock together. No one forced Trump to hire Cohen as his lawyer. He did that all on this own.
And when he decided to falsify those business records, that was entirely his own decision as well. He didn’t have to do that. He could have simply paid Daniels in cash and gotten a receipt from her. In falsifying the records, he gave his enemies the hammer that would later be used to smash him. That was a bad decision, especially since Trump knew that his enemies would use anything to smash him.
In fact, it was a bad decision to pay the hush money in the first place. What was Trump thinking — that he could trust Daniels to honor the agreement after receiving the money? That’s the height of naiveté! What would he do if she broke the agreement — sue her for breach of contract? What would he do if she decided she needed more money down the line? Trump’s decision to pay Daniels the hush money was his choice and it led to more bad choices. But they were all his decisions. Nobody forced him to make them.
In other words, Trump’s case is not like the cases of Julian Assange and Edward Snowden. Both of them are being prosecuted for having engaged in truly heroic actions that involved risking their lives and liberty to disclose illegal dark-side activities of the national-security state. Trump, on the other hand, is being prosecuted for falsifying business records designed to hide the fact that he had a tawdry affair with a porn star.
It’s also worth pointing out that during his four years as president, Trump’s Justice Department was doing everything it could to bring both Assange and Snowden back to the United States to be prosecuted, convicted, and incarcerated for their heroic actions. Throughout those four years, Trump could have put an immediate stop to those two clear abuses of prosecutorial power by issuing pardons. He refused to do so, even while pardoning his close personal cronies. Thus, if anyone lacks moral standing to rail against injustices in the criminal-justice system, it’s Donald Trump.
Trump is clearly a victim of prosecutorial and judicial abuse, but, unlike Assange and Snowden, he is certainly no hero, and he is largely responsible for his own woes in New York.