Below is my column in the Hill on why I believe the Trump prosecution would warrant an admittedly rare venue change. I am still hoping that Judge Juan Merchan has the integrity to dismiss this clearly invalid indictment. Given Bragg’s failure to even state the key offense allowing him to bring these 34 felonies, Merchan should have scheduled a hearing on the threshold legal questions in two weeks — not schedule all motions to be heard in December. Indeed, with even legal analysts on CNN and MSNBC expressing disbelief at this indictment, few beyond Karen Friedman Agnifilo and
Here is the column:
“Filmmaking is not about the tiny details. It’s about the big picture.” Thus did the title character of the movie, “Ed Wood,” explain why arguably the worst filmmaker of all time was unconcerned with obvious gaps in logic, or scenes where cardboard tombstones toppled in graveyards. Wood said he relied on the “suspension of disbelief” of his horror-film fans.
If there is an Ed Wood school of prosecution, Manhattan District Attorney Alvin Bragg could prove to be its most apt pupil.
Indicting Donald Trump on 34 counts of falsifying business records, Bragg left out a small detail: The underlying felony Trump allegedly sought to conceal over and over. That, apparently, is left to the suspension of disbelief.
For many weeks, experts on both the left and the right expressed doubts that Bragg could charge Trump with falsifying business records, a misdemeanor with a now-expired two-year statute of limitation. To be able to file such a charge, Bragg would need to kick it up to a felony by alleging it was committed to conceal or further another crime — in this case, a federal campaign violation.
The problem is that the Justice Department declined to bring such charges. The reason was likely due to a tiny problem: There is no campaign finance violation in Trump paying women to hush up alleged affairs. Moreover, even if there were a violation, Bragg is not a federal prosecutor. In other words, his case is as implausible as Wood’s cardboard tombstones.
When asked by reporters what crime was being referenced 34 times, Bragg simply stated that he was not required to state the crime in the indictment. Despite becoming the first prosecutor to charge a former president, Bragg felt no compulsion to explain the claim that kicked the misdemeanor up to a felony and allowed a longer statute of limitations.
Bragg undoubtedly knew that New Yorkers would likely suspend disbelief when the name on the indictment was “Donald Trump.” After all, when Bragg ran for office, he was no more specific; he merely promised to bag Trump on some criminal charge. The actual crime would be named at a later date.
Bragg also undoubtedly counted on Judge Juan Merchan suspending judicial disbelief by not asking for the full basis of the criminal charges. Thus far, he appears to have been correct: Merchan set the next hearing for December, so Bragg has eight months to come up with an actual crime.
Even if the judge ignores the glaring legal problems with this flawed indictment, he must decide where a trial should be held. The correct answer should be “Anywhere but Manhattan.” However, the judge is likely to deny that change of venue motion, and a denial would say a great deal about this case.
Bragg’s cavalier attitude only magnifies the view that Manhattan is the wrong place for this trial.
It is not simply that the district attorney ran on a pledge to indict this defendant. The problem is that he was elected on that pledge by the citizens of this district — the same citizens who would comprise the jury pool in Trump’s case.
When Bragg was elected, he reviewed the theories being advanced by an attorney brought into the office for the purpose of nailing Trump. Yet Bragg and some of his team reportedly balked at the efforts of fellow attorneys Mark F. Pomerantz and Carey R. Dunne; Bragg halted the case, and Pomerantz and Dunne resigned. Their resignation letter was mysteriously leaked to the media and became part of a public pressure campaign; Pomerantz then wrote a tell-all book that many legal observers considered to be an outrageous, unprofessional effort to push for Trump’s indictment.
Bragg faced an outcry from constituents who called on him to make good on this election promise.
So, now we have a case brought by a prosecutor who campaigned on bagging Trump, to be tried before a jury selected from a district that elected Bragg in part for that reason — a district that also voted against Trump, 84.5 percent to 14.5 percent, in the 2020 presidential election.
While a change of venue to a place like Staten Island would not necessarily change the judge or prosecutor, it would change the jury pool.
In 1878, in Reynolds v. United States, the Supreme Court held that the Constitution compels a change of venue in some cases. Courts look to a “totality of circumstances” in determining whether media coverage creates actual prejudice or the likelihood of bias among members of the community. Trial judges in such cases are allowed to presume prejudice and transfer a case in the interests of a fair trial.
In this case, the court will likely deny the motion for a venue change, but it should grant it. It is hard to look at the totality of circumstances here and see anything but highly prejudicial media and political elements. No matter how you feel about Trump, you should have reservations about the fairness of a Manhattan trial.The problem is that, in an age of rage, reason is a stranger.
Still, Americans — and the eventual jurors in this case — may not have to “suspend their disbelief” if Judge Marchan shows that he will not join the cast of Bragg’s slapdash legal production. The judge can start by ordering a change of venue.
Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.
“When asked by reporters what crime was being referenced 34 times, Bragg simply stated that he was not required to state the crime in the indictment.”
Notwithstanding that nonsense, I would think Bragg would be required to state the crime in order to establish venue.
This court process seems more like Plan 81 from Outer Space — 9 times stupider than Plan 9.
Team Trump wants it moved so as to try to get a fair trial. That is exactly why it will not be moved. How long are Americans going to ignore this corruption of the justice system?
“he merely promised to bag Trump on some criminal charge. The actual crime would be named at a later date.”
Reminds of Lewis Carroll’s Red Queen who famously said ““sentence first, verdict afterwards.”
Professor Turley states, “There is no campaign finance violation in Trump paying women to hush up alleged affairs. Moreover, even if there were a violation, Bragg is not a federal prosecutor.”
It was my inference that a federal prosecutor was not needed because the FEC case was not being CHARGED, but merely referenced as an evidentiary factor to address criminal intent for the STATE charge (as to why Trump acted the way he did regarding “falsifying business documents”) –even if in reality, there is no federal crime (campaign finance violation)?
Braggs was a federal prosecutor (but now a state DA) (as I mentioned the other day), so I assumed his intention was merely to utilize his federal expertise to find/identify/cite some underlying potential federal crime for the limited purpose of addressing intent regarding the state charge and addressing/ beating the statute of limitations?
But the Checkmate here is, arguendo then, assuming there is no federal crime in reality (even if Braggs merely intends to cite it for the limited purpose of addressing intent for the state charge), Braggs may be SOL (ha ha) for purposes of an applicable SOL.
(I do not/did not practice in the area of criminal law.)
@Lin,
I guess you didn’t pay attention.
For Bragg to charge Trump you have to have an underlying Federal charge against Trump.
If not, then you run into a situation where Bragg would have to be able to charge Trump with a Federal Crime.
He can’t.
And the larger issue.
Clinton is from NY. AFAIK still resides in NY.
Clinton was charged w an FEC violation. She also had bookkeeping issues which is what Bragg is claiming.
Yet no GJ or any investigation by his office.
Selective prosecution of a non-crime. That’s prosecutorial misconduct.
Charging Trump w a crime knowing this… all in an effort to derail his campaigning for POTUS? That’s election interference.
That’s a felony. That’s also grounds for disbarment along w being actionable by Trump.
-G
Ian Michael Gumby: Hey, thanks for responding. The NY statute (turning the misdemeanors into felonies) requires an intent to conceal or further “another” crime (in this case, federal election crime). I didn’t believe the “another” (federal) crime meant that he needed to be CHARGED with it as part of the Braggs’ prosecution. But, if there IS no “another” crime (because what is alleged is not a violation-not because he was not charged with it), then Braggs loses on the limitations statute, as well as the correlative elevation to felony for the otherwise-misdemeanors.?
It was my impression that elevating the NY charges (normally misdemeanors) to felonies (by citing the Fed crime) was meant to merely beat the SOL and raise the 34 counts to felonies. For purposes of “intent,” -is the requisite intent to conceal or further what Trump BELIEVES to be a crime (whether or not CHARGED with, or whether it actually is a crime)?
In other words, “Actus non facit reum nisi mens sit rea,” but can there be culpable intent (for the NY crimes) without an actual federal crime?
Since posting my comment, I’ve skimmed several legal blogs about this, and legal opinion is all over the board.
(correction: Bragg, not Braggs)
What is wrong with as part of the BraggsHIT’ prosecution? There are BS prosecutions and BraggsHIT prosecutions.
P.S. Maybe Bragg has not named the “another” crime yet because he is still looking for one that would serve the purposes of beating SOL as well as raising state charges to felonies, and does not intend to rely on the campaign law violation…..?
@Linn,
You wrote:
-=-
I didn’t believe the “another” (federal) crime meant that he needed to be CHARGED with it as part of the Braggs’ prosecution. But, if there IS no “another” crime (because what is alleged is not a violation-not because he was not charged with it), then Braggs loses on the limitations statute, as well as the correlative elevation to felony for the otherwise-misdemeanors.?
-=-
Think about what you just said.
Bragg has to point to a federal crime where he was charged. Else no criminal activity occurred.
He can allege it, but he has no ability to enforce federal statutes. So if the Feds and in this specific case did not find that Trump committed a crime, and thus did not pursue it… Bragg can’t. Hence his case falls apart. Bragg has to know this and the key thing here isn’t to get a conviction but to harass Trump and interfere with his running for office.
If you want to get into intent… that works against Bragg as well. The bookkeeping issue which Bragg has the ability to go after Trump since it is NY law, only works if you can show intent to commit a crime. What NY statute did Trump intend to break?
Bragg should be disbarred except that those in the NY Bar Assoc are cheering him on over their hatred of Trump.
Now why no charges against Clinton who actually did break the law and was fined by the FEC? (Where you could show intent.)
-G
Ian: Respectfully, and YOU wrote: (1) “For Bragg to charge Trump you have to have an underlying Federal charge against Trump.”
You now state, (2) “Bragg has to point to a federal crime where he was charged.”
THAT is where we respectfully disagree. Here are a few excerpts I just found of others’ opinions that appear to parallel mine. Please note that neither opinion expresses that Trump has to be CHARGED with another offense:
“… according to Paul S. Ryan, an elections law expert who is deputy executive director of the Funders’ Committee for Civic Participation. To make it a felony, prosecutors will have to point to another potential crime that Trump was trying to further or concealed when he allegedly falsified how the Cohen payments were recorded.”
“…I’m not saying there isn’t a hint of what the other crime is,” said Robert Kelner, a defense attorney who specializes in political and election law. “But when you have this weird local statute – in which to prove one crime, you have to show he intended to commit another – you think you’d be very specific.”
You also said, “He [Bragg] can allege it, but he has no ability to enforce federal statutes.”
MY point/query is/was (?) does he need to ENFORCE or CHARGE “another” crime, —or just show that Trump intended to either “conceal or further” another “potential” crime (as Paul E. Ryan notes, above)?
I apologize if I am not making my point clearly.
(oops. forgot to refer to my source, https://www.cnn.com/2023/04/05/politics/trump-hush-money-indictment-bragg/index.html)
Finally, we agree on this (from your comment): “The bookkeeping issue which Bragg has the ability to go after Trump since it is NY law, only works if you can show intent to commit a crime.”
But I add this: “As Pomerantz writes in his recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s own criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.” https://www.vox.com/politics/2023/4/4/23648390/trump-indictment-supreme-court-stormy-daniels-manhattan-alvin-bragg
Lol @ you, Turley. Yesterday I was like: wonder if Turley stoops low enough to jump on the venue change train. Truth is, the legal sentiment outside of your politically motivated circles doesn’t doubt the strength of the case against trump in Manhattan. But there are a fair number of opinions calling into question attaching felony charges as a result.
I get you wanting to stack the deck for trump by having a venue change, that’s your job. I just didn’t think you’d jump so quickly into the obvious stacking of the deck tactics for the right to deal with it…
Baseball fans know what hitting for the cycle is…, this is just trump’s ‘single’ entry into hitting for that political cycle. And no one ever knows how trials will turn out. After all, word on the street was the weakest case against Aaron Hernandez was the case that actually put him in jail while he was acquitted on the case that was supposed to be strongest.
No worries, Trump will hit for the cycle in the charges coming his way. He’s a treasonist.
(someone is attempting to rile up other commenters here, but in reality, I, for one, just smile….)
Honored to entertain, but I don’t GAF about what you think, lin.
Do not ever give these leftist lunatics an inch.
They deserve nothing but our contempt.
This is why we support Trump as he exposes how dangerous, deranged, and truly evil the Democrat Party of today has become.
Ditto for magats.
^^^ case in point ^^^
Show nothing but contempt for the left.
Riiight, Trump is a “treasonist.”
Not the Big Guy? What say you about Joey’s *actual* selling out of his country to corrupt regimes and adversaries?
Those indictments are coming you know.
You just go and hold your breath on those indictments, maybe Durham has them.
+100
Fish Wings: thanks!
So you approve of Biden Crime Family treason? He’s doing the approved work of The Party, so we do not question Dear Leader’s crimes, right FishCult?
What crimes has Biden been charged with? Or Hunter? Or Dr. Jill? Just because that loser Mark Levin refers to a “Biden Crime Family” does not make it so.
Let’s just wait and see, cap.
This entire farce is not about the law. This is the use of power to intimidate, and the corruption of government, in the open, to illustrate that power. We are entering a fascist state if we do not eliminate the sources of that ideology. Trump is just a favorite tool for them to use to undermine our government and our culture. This is far bigger than Trump.
“I am still hoping that Judge Juan Merchan has the integrity to dismiss this clearly invalid indictment.”
Hahaha, nope. Not gonna happen.
We have Overtly political judges embedded into the system.
The Powers That Be are pressing down on them.
Their understanding of their duty as a judge is not ‘blind adjudication of the law’ nor adherence to the Constitution.
They don’t believe in that.
Their duty is to The Party.
They don’t care about “integrity”; they have lifetime appointments.
It’s “The Party” above all else.
This is going to be a kangaroo court, just like the Jan 6th committee.
But this time, with everyone knowing the indictment is an embarrassment (that would be words from a recent NYT opinion piece), CNN pundits even saying Bragg is on shaky ground, or the charges are weak, we are going to watch is unfold while doing a facepalm.
The only thing that will be proven is how far our judicial system has fallen.
We are a banana republic.
@Upstate
Its worse.
J6 you have an actual charge. Their entering the Capitol interrupted a joint session of Congress which is a felony.
(Whether or not the Feds instigated and exacerbated the situation is another story.)
Trump’s charges are a political shill. Bragg knows this when he made the charges. He also is gambling that he can delay this out to December so that it interferes with Trump’s campaign. The judge also knows this and complied. He warned Trump but didn’t gag him for a reason. Trump will campaign off this travesty. Ultimately he’ll say something that will give Bragg and the courts reason to gag him. (We all know Trump…)
Bragg isn’t playing to win. He’s playing a delaying action to harass Trump and impede his campaign.
Long before December there will be motions and counter motions along w appeals when applicable.
If Trump were smart, he’d bury the hatchet and work w DeSantis. But Trump’s ego and quite possibly DeSantis’ ego won’t let that happen. 4yrs of DeSantis as VP would season him for 8yrs as POTUS. Its unfortunate that Trump hasn’t learned anything from his 4yrs in office.
Would help to put this country back on track and attempt to repair the complete and utter mess Biden made of this country.
-G
I would agree with Mr Boone. This seems to be a conflict with the 6th amendment with the right to a “public and speedy trial”, “before an impartial jury”, “to be informed of the nature and cause of the accusation”. The prosecution has had months to prepare for this and to delay till December is totally unwarranted. It is obviously a set up to interfere with primaries and logistics of the upcoming election. As far as a change of venue is concerned, that would seem appropriate and would require little or no thought to grant. Which is all the more reason it will be denied by the judge who is also donates to Joe Biden. The next thing we will likely see is a move to enroll ChatGpt as potential jurors since they will be obviously Intelligent, wholly unbiased, coldly analytical and still guarantee a sure fire conviction.
About the only thing left is having no specific charges put out until the day of the trial, witnesses with their heads covered by sacks as they point at the accused, a large painting of the of the Reign of Terror behind the judge, a second painting of the crowd around a Guillotine with Kathy Griffin holding up Trump’s head.
I mean, other than that, Manhattan is the perfect place for trial.
Contrast these actions to the New York we saw on 11 September 2001. The disbelief that an enemy had the audacity to attack and hurt Americans and America. The patriotism was palpable, the unity of spirit was admirable and the citizens from all walks of life pulled together to help each other and to help each other heal.
Like a malignant cancer, this is worse. There is a force being propagated by divisive activists who hate our country and our way of life. They do not build things, they tear them down. They do not love people, they abhor them. Their goal is destruction and division.
These actors are despicable and their actions hurt this nation in ways only the foes in CCP China and Russia could dream about.
The Judge is a hand picked Liberal DEM, Obama/Schumer are in his corner, he is a Liberal DEM, very biased, who donates to Biden/his family is involved with Harris and DEMS, reference his daughter. There are comments about this judge record especially with jury instructions, refer to his record. This case should be thrown out, after the judge reviews the information, well before the summer but it won’t happen. Trump’s lawyers should appeal everything. I doubt the judge will allow the trial to take place outside of his authority and the judge and Brag are ignoring every legal principle.
He also donated to Biden in 2020. They are all in one big giant orgy together.
I know Turley likes movie themes but he might well have selected “The Producers” for this fiasco-turned-success story. Trump’s campaign chest is bursting since Bragg made him famous again in New York City. Lots of his newest support comes from marginal democrats and liberals fed up with the chicanery and doings of the radical and anti-American left. Judge Juan Merchan may be given the secret blessing backdoored from 1600 Pennsylvania Avenue to toss this case because, as in the Mel Brooks 1968 film, complications arose when the two schemers (i.e., the producers) backing what they believed would be a flop unexpectedly have a hit on their hands. Bragg, the hapless producer here, has done almost as much to re-elect Trump as Joe Biden.
Look up Speaker of the House Tom Delay.
Charged, tried, convicted, sentenced. Overturned in its entirety.
Democrats invented lawfare. They dont care about the charges being supported by actual law. By the time its appealed, the goal is met. A political adversary is eliminated.
It the words of famous Statesman Harry Ried. “we won didn’t we?”
Iowan, also remember Alaska Senator Ted Stevens who was charged right before his senatorial election, lost the election and then was proven to have not committed any crimes.
And he lost for the sole reason that he was, indeed, Ted Stevens.
Gov, Sarah Palin was under multiple corruption investigation, initiated by Republicans. Until she resigned and ran for VP. Then the investigations disolved.
Kay Bailey Hutchinson, Gov, Rick Perry. Law Fare in Austin is common.
Corrupt Judges allow the conviction, knowing appeals will overturn the conviction.
Judges like the one in Hawaii, that said outloud, he would not have stayed Trumps Travel restrictions, it the EO was signed by a different Executive. Admitting to his corruption, he is still on the bench, advancing the leftist agenda, and ignoring the Constitution in the process.
This indictment is a classic example of fascism where political parties use the instruments of government and the press to pursue their political enemies. Unfortunately, most of the US left and the democrats that support them are too ignorant to even see this. They’ve been taught to exist in rage-filled mindless chants and slogans with no ability to think beyond a 5 word statement. Meanwhile the US languishes under the destructive Biden administration with rampant inflation, chaos on our borders, and international chaos caused by weak and feckless President and his puppeteers.
The key offense is not Trump’s crime but appears to be Cohen’s crime which he plead guilty to.
The issue is that Cohen’s crime cannot be attributed to Trump, as he was not charged with it. Additionally, as a city prosecutor, Bragg does not have the jurisdiction to charge or try federal crimes. Given the eight-month delay, the DOJ could charge Trump with campaign violations, or Bragg may return to court in December and admit a mistake was made. Even if the latter scenario occurs, many people will argue that Trump got off on a technicality.
The Statute of Limitations has run on all 34 business violations. The only way to extend the Statute is to charge an underlying offense but Trump is not charged with an underlying offense. How can you be arraigned on non-chargeable offenses and the judges waits 8 months to hear arguments?
Judge Merchan pushing the first hearing date out to December (while we’re barely in April) tells me that he wants this indictment to have the maximum negative impact for President Trump’s re-election campaign. He is definitely on Team Bragg and by doing this, he has ALREADY proven that he cannot be impartial in any way. Thank you, Jonathan, for an excellent article.
I actually disagree. Professor Turley’s desire to change the venue seems to be motivated by a desire to see Democrats cover their naked partisanship with a shred of credibility thus somehow making this atrocity okay. Bragg is committing the crime he is accusing Trump of – i.e. election interference. Every day that this travesty is allowed to continue causes irreparable harm to Donald Trump, his campaign, and the country. A change of venue would only mask that which should not be masked. A kangaroo court should be held where all the kangaroos are. When the jury is all over social media bragging about how they plan to convict, and the clearly biased judge lets it go, and when the jury is out for no more than 20 picoseconds before finding Trump guilty, then the shame of the Democrat party will stand for the whole world to see, as it already does. This will be the definition of a pyrrhic victory. By winning, and “getting Trump,” Democrats destroy their party and themselves. It’s unfortunate that Democrats have to take all of America with them on their journey into the depths of the sewer but sometimes you have to hit bottom before you can rise again and that seems to be one of those times. I believe that this part of a Divine plan but when we finally emerge from the sewer, there will be a day of reckoning, and all those who countenanced this, or dam-ed it with faint praise, will be held to account.
“Every day that this travesty is allowed to continue causes irreparable harm to Donald Trump, his campaign, and the country”
Except that his popularity rose with the indictment. Can’t have it both ways, did it hurt him? If so why is he more popular the day after his indictment than before? And if there was a crime committed, why is it causing irreparable harm to the country to hold him accountable? If the jury finds him not guilty, such is life. If they find him guilty, such is life. If the Repos want to elect a convicted Felon, that is their choice.
Time will tell, don’t be so hasty.
Turley might have something there, why not just let Trump pick his own judge and jury. Trump would love his case being tried In Tennessee.
Do you not understand the guarantee of a fair trial?
Didn’t I say Trump would love Tennessee, I’m sure you and others would think that’s fair. In Trump world, nowhere on earth would Trump get a fair trial, well maybe in Moscow, but I digress.
Sure and Stalin should have moved his show trials. Mao should have been more caring with his cultural revolution.
Fascists USE THEIR POWER. Republicans worry they will hurt someone’s feelings.
The Republican Congress…needs to CUT off 50% of all Federal Spending, cut all aid to cities and colleges, and TAX all non-profits where ANYONE gets $100k+
Professor Turley, might there be 6th amendment grounds for forcing Mr. Bragg to being more specific, “..and to be informed of the nature and cause of the accusation;”. Could he petition the court at this time on this matter? Although Mr. Trump may want this to play out over a longer period, as he seems to relish the situation and lime light.