Trump Indicted by Manhattan District Attorney

[N.E. Brigand]

Very interesting comments by Ben Wittes of Lawfare today on their podcast about this case. He was one of those people who felt that is case was the weakest and least important of the four cases in which Trump was charged, but after sitting through the first week of the case, he has changed his mind. His view now is that it is appropriate that this the case that is coming to trial before the election this year, both because the tawdry nature of the facts is very Trumpian and more importantly that the subject matter of Trump trying to control the information stream to prevent negative information about him from affecting the election is very apt in this time.

By contrast, see this piece by Teri Kanefield, whom you previously cited for her explanation of how many legal pundits were wrong (in her opinion) about how the Supreme Court should rule about Donald Trump's eligibility, as an insurrectionist, to appear on the ballot in Colorado and elsewhere. In this new piece, looking at prosecutors' opening statements, Kanefield asks, "Where's the beef?" because, as she sees it, the Manhattan case against Trump is a series of nesting dolls at the heart of which there is no crime. I have problems with Kanefield's writing -- which I never found time to explicate fully regarding the prior column and won't have time to do now -- that lead me to have doubts about her analysis, where she is certainly far more knowledgeable than me, but speaking as a lay observer, her argument seems unfortunately strong (unfortunate because if she's right, then once again the laws seem to have been written in such a way as to allow someone like Trump to get away with what should be crimes), but there is one point, near the end, where she seems to misunderstand the point so grossly that I begin to wonder how strong the rest of her post is:

By the way, is anyone surprised that stories presented by the National Enquirer are false? I remember reading headlines at the supermarket and joking that they must have the best investigators who find out about space aliens before NASA, and the best investigative reporters who can find out what famous people are doing behind closed doors. A few decades ago, someone told me he figured a fiction writing degree was a prerequisite for the job.

Here's why that paragraph is really off base: there would be no point in Donald Trump and David Pecker and Michael Cohen conspiring to spend more than half a million dollars to catch and kill the Stormy Daniels and Karen McDougal and Trump Tower doorman stories (and all rational observers agree that they did, though not whether that conspiracy was a crime) if they thought no one (and specifically no potential Trump voters) would believe those stories. If Kanefield doesn't get that very basic point, which is pretty central to the case, what else is she missing?

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Regarding the justice in Trump being on trial for his past attempts "to control the information stream," he still gets to control it in some ways because this trial is not televised or streamed (despite the claim by Trump's lawyer Todd Blanche to Judge Merchan this morning that "Every time we whisper to our client, it's live-streamed"). I know what a circus other high-profile trials like that of O.J. Simpson became and that there's a risk of grandstanding, but imagine actual video of Trump falling asleep in court.

Or imagine if the public actually saw things like this choice moment, reported by Josh Kovensky this morning about the second contempt hearing before the trial resumed. Judge Merchan heard arguments about whether four public statements or posts that Trump had made since his prior contempt hearing, but before Judge Merchan found Trump had violated his gag order with nine of the ten statements considered in that earlier proceeding. Reports from today's hearing suggest that Judge Merchan will find that Trump did not violate the gag order on at least two of these four occasions, but along the way, this happened:

During a contempt hearing on an additional four alleged gag order violations, Judge Juan Merchan told Blanche that it was Trump who chose to emerge in the courtroom hallway last week and assail Michael Cohen, who is a witness in the case.

“Nobody forced your client to go do that,” Merchan said.

Blanche replied: “Your honor, I agree with that.”

Trump looked over in surprise at Blanche, before shaking his head. In the courthouse’s overflow room, where your reporter is seated, journalists and members of the public erupted in laughter.

But apart from when the media has been distracted by coverage of the campus protests, at least this trial is getting regular coverage, including international coverage. As Lawfare reporter Tyler McBrien noted in his coverage, thanks to colleagues from abroad, he learned today that the word for "hush money" is Schweigegeld in German and pots-de-vin in French.

It's interesting that in this morning's hearing, Blanche mentioned something that President Biden said in his remarks at the White House Correspondents Dinner on Saturday. Biden had said that Trump had had a rough week and pointedly added that Trump was experiencing "stormy weather," which everyone understood to be a reference to Stormy Daniels. We are eventually going to reach a point where Donald Trump is going to ask a court to prevent the President of the United States from commenting on the criminal indictments filed against his political opponent, and I'm very curious how that work out. I think both Trump and Biden have to be free to say anything they want about each other and if that hurts Trump's legal case, the answer must be: nobody made you for for president. Judge Merchan today pretty much said this, but this is a state case, and I think it's going to be more important (for the future of American democracy) in the other cases. President Biden needs to be able to say people should vote for him because he has not been indicted for stealing classified documents! But Judge Cannon may try to prevent him from doing so, and because those are federal trials and Biden leads the government, I imagine there's an argument to be made that he can be bound by a federal judge's gag order.

Some other points of note today:

--Stormy Daniels's attorney, Keith Davidson, said that the statement he had her she signed for the Wall Street Journal, apparently denying that she slept with Trump, when the Journal reported on that liaison shortly after the 2016 election could be understood to be technically true because she denied a "romantic" affair. I'm not sure that works.

--Cross-examination reveals that Davidson was involved in a lot of sleazy sex-tape negotiations. A parade of celebrity names were dropped today.

--I'm confused as to why the prosecutors on Tuesday weren't allowed to refresh Davidson's memory with a transcript of his grand jury testimony (e.g., Didn't you say X?) but the defense today was allowed to refresh Davidson's memory by playing him a recording of something he said in a conversation with Michael Cohen.

--Michael Cohen had 39,740 people on his phone contact list. Sort of: that was how many contact numbers he had. He might have multiple entries for one person. For example, there were 'ten pages" of contacts in his phone just for Trump.

Finally, most observers (including V) suspected that, despite Donald Trump repeatedly saying that he planned to testify, he wouldn't actually do so. Here's his bogus reason:



Notice how Trump's lawyer, Todd Blanche, seems in that video to confirm that very incorrect interpretation. I rather like Ron Filipowski's notion, in light of Blanche's seeming agreement, that Judge Merchan should ask Blanche, on the record, if he misinformed his client about his rights.

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Trump did say something accurate in his remarks outside the court: he said that Robert F. Kennedy is not a serious candidate.

[Voronwë the Faithful]

I saw that piece by Kanefield. She (and a lot of other pundits) are missing a subtlety in New York law. I'll explain what I mean by that when I have more time.

[Voronwë the Faithful]

There are two factors that Kanefield (and others) are not sufficiently taking into account when they criticize the prosecution.

First, as noted, the elements of the falsifying business records felony include "with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission of another crime. Note that it is not necessary that the other crime actually be committed by the person being charged. It is sufficient to prove that the person intended to commit the other crime (whether or not the crime was actually committed, or that they acted to aid or conceal the commission of a crime by themselves or anyone else. So it would be sufficient to show that Trump intended to violate campaign finance laws (whether or not he did) or that he acted to aid or conceal Michael Cohen's already admitted crimes.

Secondly, as Kanefield notes, one of the predicate crimes that the prosecution is alleging that Trump intended to commit is ELN § 17-152: Conspiracy to promote or prevent an election. One of the elements of that crime is that one or more of the members of the conspiracy must act to promote or prevent an election "by unlawful means." But here is the point that Kanefield (and others) is missing. Under New York law, in the context used in this statute "unlawful" does not necessarily mean "criminal." In order to prove that Trump violated FECA or otherwise could have been subject to criminal penalty. It would be enough to show the actions violated state or federal law in any way, which is a much lower bar than Kanefield apparently thinks.

I've noted this before, but it is worth saying again. Generally speaking, people who practice criminal law in New York seem to think that this is a legally sound case. Law professors, former federal prosecutors and others who don't practice criminal law in New York don't. I'll go with the former over the latter.

[Voronwë the Faithful]

Finally, most observers (including V) suspected that, despite Donald Trump repeatedly saying that he planned to testify, he wouldn't actually do so. Here's his bogus reason:



Notice how Trump's lawyer, Todd Blanche, seems in that video to confirm that very incorrect interpretation. I rather like Ron Filipowski's notion, in light of Blanche's seeming agreement, that Judge Merchan should ask Blanche, on the record, if he misinformed his client about his rights.

Justice Merchan did better than that.

[Voronwë the Faithful]

ETA:

[Voronwë the Faithful]

SMH

[Voronwë the Faithful]

[Voronwë the Faithful]

[RoseMorninStar]

I saw that piece by Kanefield. She (and a lot of other pundits) are missing a subtlety in New York law.* I'll explain what I mean by that when I have more time.

*bolding mine

I have been thinking about this, as I've never served on a jury. Who explains the minutiae of the law or other various things that laypersons may not understand? Is everything explained in the courtroom or are there people who explain such things later when the jury is deliberating?

[Voronwë the Faithful]

The judge will give jury instructions on the law to the jury before they begin deliberating. The lawyers will each provide proposed jury instructions and the judge will choose which versions to give.

[RoseMorninStar]

Thanks V.

[Voronwë the Faithful]

[Voronwë the Faithful]

Boring but damning testimony from former Trump Org Controller Jeffrey McConney. Based on Emil Bove's cross, it appears likely that Trump’s defense will be to pin it once again on Weiselberg. However so far as I am aware neither side plans to call him as a witness.

[Voronwë the Faithful]

This piece by Quinta Jurecic and Tyler McBrien gets at some of what I was talking about regarding misconceptions about NY law.

What Must Prosecutors Prove in Trump’s NY Trial?

Oh, and Stormy Daniels is about to take the stand.

ETA: Or not. After a debate about what Stormy Daniels can and can not testify about, the prosecution calls a different witness, someone named Sally Franklin, who works at Penguin Random House.

[Voronwë the Faithful]

The purpose of Franklin's testimony was to enter into evidence excerpts from Trump's books in which he make it clear that he closely tracks his business dealings, in order to forestall the expected argument that he was not responsible for the falsified business records.

And then the prosecutors called Daniels.

[N.E. Brigand]

I see that Donald Trump posted on his social media account this morning that he had "just recently been told who the witness" today would be, although he didn't name Stormy Daniels, and that it was "unprecedented" that there was "no time for lawyers to prepare." A half-hour later he deleted that post.

[Voronwë the Faithful]

This is a detail about the PP/DD settlement agreement that I either didn't know or had forgotten about.



That certainly is suggestive that the story is true.

[N.E. Brigand]

Based on reports on Twitter, there's not much new in Stormy Daniels's testimony for someone who has followed Donald Trump's presidential career, but there's probably a segment of the public who will only learn now, for example, that before sleeping with her, Trump, age 60, compared Daniels, age 27, to his daughter Ivanka.

[Voronwë the Faithful]

Blanche has moved for a mistrial on the grounds that too many details were testified to by Daniel's despite the judge repeated sustaining of objections and that therefore the prejudicial impact outweighs the probation value.

[Voronwë the Faithful]

Merchan denies the motion. He points out that not only did he sustain most of the defense objections, at some points where he was surprised that there was not an objection he intervened sua spotted.