The real election conspiracy? Trump’s trial

News & Politics

In the wake of his recent conviction, Donald Trump loudly proclaimed that his trial had been “rigged.” Trump is often prone to overheated rhetoric, but in this case, he may have been guilty of an understatement.

This was as unfair a trial as this country has likely ever seen. The court allowed a massive amount of irrelevant and highly prejudicial evidence while prohibiting strong, admissible, and relevant exculpatory proof. Judge Juan Merchan’s demeanor was unfairly pro-prosecution, sustaining virtually all the state’s objections and curtly denying the defense’s.

A conspiracy to promote or prevent an election has been proven. But Trump was the victim, not the perpetrator.

Then, to top off the sickening prejudicial testimony, the jury instructions all but told jurors to find Trump guilty. In fact, there was no issue presented to the jury in the instructions upon which a reasonable juror could dissent from a finding of guilt.

Let’s first look at the acts in question from 10,000 feet, while adopting the prosecution’s theory of Trump’s motive. Trump and his “fixer” Michael Cohen wished to pay porn star Stormy Daniels to prevent her from exposing her one-night stand with the then-non-candidate 10 years earlier. Trump, in essence, told Cohen to fix the problem, without any specification as to how, although clearly, Trump knew that Cohen would arrange to pay her for a nondisclosure agreement.

Before the 2016 election, Cohen formed an LLC, funded it himself, and paid Daniels $130,000 through it. After the election, he billed the Trump Organization through an LLC for $420,000 in 12 equal monthly installments, seeking repayment per a “retainer agreement.” There was no written retainer agreement, although clearly the facts made out an oral and implied agreement to repay the “grossed up” amount, from which Cohen would also be paid fees for his services and tax liability.

The Trump Organization listed the repayments as “legal expense,” sometimes per a “retainer agreement.” It is easily discerned that these notations in the record were arguably not false at all since the payments were truly legal expenses, and Cohen labeled his invoices as seeking payment through a “retainer agreement.”

The law in question punishes “falsifying” business records with an “intent to defraud.” For the falsification to be a felony, the intent to defraud must include the intent to commit or conceal another crime.

Oddly, there was no instruction defining “falsifying,” which should include a definition and requirement of materiality. The court instructed that the intent to defraud, which is different from mere falsity, could simply be a “general intent,” without any intent to defraud anyone out of anything. What does that mean?

Moreover, the judge offered no instruction requiring willfulness or specific intent in the commission of the crime, a standard instruction requiring that the defendant know what he was doing was illegal.

The “intent to defraud” must include also intent (which means knowingly) to conceal or commit another crime to constitute the felony charged. But the judge also instructed that the prosecution “need not prove that the other crime was in fact committed, aided or concealed.”

Huh?

So, the jury could convict if all it found was there was an innocent, immaterial falsity, without any willful, specific intent either to falsify or to defraud anyone, and not followed by another actual crime or concealment of one.

Prejudicial hearsay evidence

The “other crime” (which need not be committed) was New York Election Law section 17-152, a “conspiracy” to “promote or prevent” an election by “unlawful means.”

But the court did not instruct the jury on what defines a “conspiracy,” which usually involves agreeing to commit a specific illegal act and taking at least one overt step toward it. The jury heard none of this. Why not? Because such an agreement would necessarily mean there was a specific illegal act agreed to. But the court allowed that the “illegal means” could be any one of several illegalities, not requiring agreement to any particular wrong. Pick one, any one, jury!

Since any campaign involves individuals who agree to promote or prevent an election, the key issue in this case is whether Trump and Cohen’s shutting up of Daniels involved knowingly “illegal means.” Bill Clinton’s campaign, we infer, quieted a woman once or twice, but is George Stephanopoulos a felon?

The Federal Elections Commission found no violation, nor did former Manhattan District Attorney Cyrus Vance, a reputable Democrat. So, how did the “progressive” prosecutor and a biased court trick the jury into finding a crime where none existed?

Merrick Garland’s Department of Justice had prosecuted Cohen, properly so, for bank fraud related to his foundering taxi medallion business. To smear Trump, the prosecutor added to Cohen’s proper guilty plea a falsely concocted federal election crime, a gratuitous add-on. Prosecutors at the same time decided that there was no basis to prosecute National Enquirer owner David Pecker over his “catch and kill” purchase of a salacious story and agreed in writing not to prosecute Pecker for an election crime, which falsely suggests there was a crime.

Both Cohen’s plea and Pecker’s non-prosecution agreement — prejudicial hearsay evidence proving a falsity that no reasonable court would have allowed — were admitted into evidence, leading any rational juror to think that an election crime had been established. Not so.

The court also allowed some overheated, sensationalistic articles by Wall Street Journal reporters suggesting wrongful election conduct, even though the stories amounted to absurdly prejudicial, speculative hearsay evidence, inadmissible on multiple grounds.

But when Trump’s lawyers tendered testimony of a leading elections law expert, perfectly proper expert opinion evidence, that there was no election crime — the essence of the charge against Trump — Judge Merchan prohibited it.

When Cohen’s former lawyer Robert Costello tried to testify to Cohen’s various admissions that Trump had committed no crime, Merchan, with overt hostility, prevented him from giving that part of his testimony most devastating to the prosecution.

Pick a crime, any crime

Just in case the jurors had not already been convinced that the court was instructing them to find a crime, the court told the jury that “Michael Cohen is an accomplice,” because “under our law … there is evidence that he participated in a crime based upon conduct involved in the allegations here against the defendant.” How could the jury find Trump not guilty after this absurd instruction?

The court instructed that Cohen’s testimony needed corroboration but then specifically instructed that the corroboration needed not prove that the defendant was guilty or that a crime was committed. In fact, all that was needed was evidence that “harmonizes the narrative of the accomplice,” even if “it does not itself tend to connect the defendant with the commission of the crime charged.”

Can that “harmony” be a perfectly legal desire that Stormy Daniels be quieted? Seemingly so, even though that is not criminal. Apparently, then, the court did not require, as it should have, that Cohen be corroborated as to Trump’s guilt.

Again, a conspiracy necessarily means that the illegal act be agreed upon, while the court allowed the jury to pick any one of three possible illegalities, even though there was no evidence that any one was agreed to, much less with willfulness or specific intent.

One of the three possible illegalities was a campaign contribution of more than $2,700 per federal law. This contribution, the court instructed, could be a “loan or advance.” Such would logically mean that any creditor of a campaign is a contributor if it, like Cohen, allows a debt to remain open for any length of time.

And, of course, we have a state court judge instructing on federal law, which is, well, unconstitutional.

A second possible illegality named was a false tax record, which Merchan said could be something other than a false tax return, without further definition. So, any false business record would seem to suffice, a circular crime, since the initial false record now could be the second crime intended by the first.

In case this circularity option was not obvious to the jury, the court instructed that the second crime could simply be false business records, which sounds an awful lot like the first, predicate crime. To make sure that the jury grasped this point, Merchan specifically named Cohen’s LLC documents as “false records” that could constitute the “unlawful means.” These records, however, were simply part of the companion documents to the original (allegedly) false business records charged. So, under the judge’s instructions, part of the batch of allegedly false records could be the second crime intended to be committed by the other part of the batch. Circular, much?

The real conspiracy

The bottom line is that a conscientious juror would have great difficulty even considering acquitting Trump, the intended effect of inadmissible evidence, judicial hostility to the defense, and biased, improper instructions.

The prosecution, declined by Cyrus Vance, was resurrected by former federal lawyer Matthew Colangelo, seemingly sent by Merrick Garland to New York to orchestrate the resuscitation of a prosecution rejected by the previous conscientious district attorney.

So, a conspiracy to promote or prevent an election has been proven. But Trump was the victim, not the perpetrator. Rather, the perpetrators are those who carried out this miscarriage of justice, a show trial worse than any Stalin or Beria could dream of. This is a sad day for earnest judges across the country, and sadder still for our shredded country.

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