Below is my column in The Hill on the first week of testimony in the Trump trial. It is making Rube Goldberg’s 13 step self-operating napkin look like a model of efficiency and clarity. It is so convoluted and illogical it is mesmerizing.
Here is the column:
Rube Goldberg, the inventor of bizarre machines that performed simple tasks through dozens of mechanical steps, was once asked about the essence of creating such fantastic, illogical machines. He replied “An inventor is simply a fellow who doesn’t take his education too seriously.” After the first week of testimony, the trial of Donald Trump is increasingly looking like a mad prosecution machine by lawyers who don’t take law too seriously.
I have long been a critic of the Bragg indictment as legally incomprehensible. However, I must confess that after a week of testimony, some of us have developed a weird fascination with the utter madness of the scene unfolding in Manhattan. It was not until the second week of proceedings that Bragg even revealed part of his theory of criminality. For months, even liberal legal analysts have expressed dismay that Bragg’s indictment had not clearly stated what specific crime that Trump sought to conceal by allegedly misrepresenting payments to former adult film actress Stormy Daniels.
The premise of the prosecution always had that Rube Goldberg feel. It was so implausible as to be impossible. After all, the base charge is a simple misdemeanor under a New York law against falsifying business records. Trump paid Cohen hundreds of thousands of dollars in legal fees and costs, including $130,000 for a nondisclosure agreement with Daniels.
Bragg is vague as to what should have been noted on the ledgers for the payments. It is not even clear if Trump knew of this expense’s designation as a legal cost. However, it really did not matter, because the misdemeanor has been as dead as Dillinger for years.
The dead misdemeanor was shocked back into life by claiming that it was committed to conceal another crime. Under New York’s penal law, section 175.10, it can be a felony if the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
For months, Bragg has suggested that the “other crime” was the violation of federal election laws, suggesting that the payment was really a campaign contribution Trump made to himself that was not properly recorded. The problem is that the Justice Department investigated that crime already and decided that it was not a viable criminal claim. It did not even seek a civil fine.
Bragg’s predecessor and Bragg himself rejected the theory behind this prosecution. But then a pressure campaign led Bragg to green-light a prosecution roughly eight years after the 2016 campaign.
In the trial, Bragg added a type of frying pan flip to his Rube Goldberg contraption by arguing that Trump may have been trying to hide his violation of another dead misdemeanor under yet another New York election law prohibiting “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.”
In other words, Trump was conspiring to try to win his own election. This even though the notations were made after he had won the election, and even though Trump was running for a federal, not a state office.
So again, what is the unlawful means?
The machine then flips you back to the beginning — seeking “to influence the election.” There are still the federal election violations, but that theory was rejected after an investigation. And if it were a real crime, it would be brought by federal, not state prosecutors.
There are also the misdemeanor falsifications of business records under section 175.05. So Bragg would use one dead misdemeanor to trigger a second dead misdemeanor to create a felony on the simple notations used to describe payments for a completely legal nondisclosure agreement.
This circular reasoning is already incredibly creative, but the actual evidence used to propel this ball through the machine is even wackier. Bragg decided to start with a witness to discuss an affair that is not part of the indictment. David Pecker, former publisher of the National Enquirer tabloid, had supposedly been paid to kill a story of a Trump affair with a different woman, Karen McDougal, a former Playboy model.
Pecker proceeded to make the prosecution case even more convoluted. On cross examination, Pecker admitted that Trump told him that he knew nothing about any reimbursement to Cohen for any hush money, that he had killed or raised such stories with Trump for decades before he ever announced for president and that he had also killed stories for other celebrities and politicians, including Arnold Schwarzenegger, Tiger Woods, Rahm Emanuel and Mark Wahlberg.
He also testified that Trump told him that paying hush money never really worked because stories still get out. And he understood that Michael Cohen was working as Trump’s personal counsel, not his campaign counsel. Finally, he testified that Trump had no direct involvement in arranging any payments to McDougal.
Pecker added that Bragg’s star witness, Michael Cohen, commonly exaggerated and often became loud and argumentative. Cohen will effectively ask the jury to send his former client to jail for following his own legal advice.
Bragg will now call to the stand Cohen, whom a judge just recently denounced as a serial perjurer who is continuing to game the system.
Even as legal experts debate what crime can be found in any of these flips and dips, Judge Juan Merchan seems content to listen as this weird machine bleeps and whirls in his courtroom.
That is why Bragg has created the perfect Rube Goldberg attraction. The artist himself explained his unlikely success by saying, “It just happened that the public happened to appreciate the satirical quality of these crazy things.”
In New York, that appreciation has moved from the satirical to the legal.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
If all that was true, it would mean Trump is a legal wizard
No.
It means Bragg’s case is weak, the judge is obviously biased and in any other court, the case would of been thrown out.
This is going to turn into a disaster for Biden and the left. No matter what happens in this case, Trump wins. If the jury acquits, Trump wins as it confirms that this was a scam all along. If the jury convicts, it becomes a bigger political problem. What does Bragg do then? He’s spent millions on a 40 felony case built from a limited out misdemeanor involving an 8yr old legal NDA. Jailing Trump would be a non-starter for a variety of reasons, another big fine that will be overturned on appeal? Trump becomes a martyr and looks like the victim. When you pair together, Bragg, Daniels, Cohen, and Pecker, Trump starts to look like the most honorable man in the room. Does Bragg really believe that simply bagging a “felony conviction” to run on is going to get Biden reelected (and nice DOJ job for him)? Sooner or later, someone is probably going to realize that Trump NOT on the campaign trail is helping his pole numbers…
Point 1: Long ago in law school I read an old English case in which an indictment was held to be defective because although it alleged that the defendant swung an ax and “cloved” the victim’s head in two, it failed to alleged that it killed the victim. Obviously that rule has long since gone by the wayside but it illustrates well the need for an indictment to be specific in the crimes alleged. Bragg’s indictment fails this test, assuming specificity is required in New York. Point 2: As to the judge, in our local area cases are dropped in courts randomly. In one case I recall, the judge in whose court a civil case had dropped realized he was a neighbor of the defendant. Not close friends, just a neighbor. That was enough for the judge to have the district clerk move the case to another court. For “Judge” Juan Merchan, being an active financial contributor and supporter of the Defendant’s current political opponent in a case which easily could impact the election is not enough. He is a joke of a judge. Point 3: As to the grand jury, many years ago, I appeared before a Harris County (Texas) grand jury to seek an indictment in a case. As an Assistant Attorney General, I did only civil prosecutions but the ADA with whom I was working was out of town and he asked me to substitute for him. I did. I was not placed under oath and I presented no witnesses. I simply told the grand jury what the defendant had done. The grand jury handed down a felony indictment. He was not a ham sandwich but he might as well have been.
Honestlawyermostly,
Thank you for your legal analysis and insight.
And the laugh re: ham sandwich.
Upstate– thank you. I appreciate your kind comments very much.
Want to point out again, for those who regularly use
‘Turley = Fox News’ as a smear against him
this article appeared on the heavily Dem-leaning The Hill.
Excellent Analogy – Now convince the Jury of it.
Back in the Day, my Professor for Administrative Law took to the chalkboard and drew out the procedure for taking a Case through the Administrative Law maze. When he had finished the schematic, I exclaimed, Are you F’en kidding Me! That looks like the Rube Goldberg Form of Law. To my delight on the Final Exam there it was on a multiple choice question: Which best describes Administrative Law (The only viable aws: Rube Goldberg)
Seems the ‘Rube Goldberg Form of Law’ is alive and well today.
Kudos! Jonathan
Bragg et al are doing just fine proving trump’s Pecker problem. Turley should just turn to be openly shilling for project 2025 as he inevitably will soon enough.
Describe in detail exactly what is the legal Problem involving David Pecker?
I know you are not responding to this question. Because their is no response
You meant to use the word ‘there’….
That aside, the legal problem is that Pecker used a ‘catch and kill’ scheme to bury information about trump going into the ’16 election and trump cooked the books through Weiselberg and Cohen in how the payoffs were made such that it ventured into election/campaign finance violations.
Have you not read the indictment? Or are you just enamored of making random clueless comments? Actually, I know the latter is the answer, so no need to further dig yourself in a hole.
Pecker Testified he did lots of ‘catch and kill’ for other politicians and famous people. It is not a crime.
The accounting Charge is a misdemeanor, outside the SOL
There is no Pecker problem
payoffs were made such that it ventured into election/campaign finance violations.
Bragg is not allowed to prosecute Federal Election Law.
State of NY election law does not apply to elections to federal office. (SCOTUS was very clear States just cant do that)
Yes we are still waiting for a crime.
Merchan should issue a directed verdict to the defense when the prosecution rests (he won’t but the law and the facts demand it)
Catch and kill becomes a crime by falsifying business records to cover it up and skirt around election guidelines. Elections are run by states. And this is primarily a documents case….
Pecker also testified he knew it was illegal and it was his belief trump could pardon him for it….
But this is all clearly outlined in the indictment. Read it in addition to the transcripts of testimony if you care to take that brave step away from the fox news interpretation of what’s going on in the trial. Last week did not go well for trump, let’s just say that.
The question you should be asking is not whether there was a crime or not, but rather why falsifying business records moves things into campaign finance violation….
And the answer there is simply to attempt to have transparency about who is donating money and favors to a presidential candidate. The Constitution really frowned on the idea of foreign powers gaining undue access in American elections. Granted, the SCOTUS is doing its level best to demolish those protections…, but they haven’t been able to do away with them entirely yet.
What is false about the accounting entries? And what business? Aren’t these Trump personal checks? There is no business.
3rd party payoffs are basically what the founders feared most in their political leaders. Why? Because that is exactly the mechanism by which a foreign power could control the new American government. It’s exactly why trump, without the waiver of being elected president, could never even get security clearance at this point. …
And yes, your faulty “accounting entries” are the text book definition of a 3rd party pay off.
As far as your waiting for a crime…, well, you’re in the group trump was referring to when he said he could shoot someone on 5th Ave and get away with it….
Trump’s crimes are clearly outlined in his indictments and yes, obstruction, fraud, espionage, campaign finance violations, witness intimidation are all crimes no matter how hard you cover your ears and pretend they’re not.
Trump’s crimes. Trump is the criminal? LOL.
The criminals are the ones running the criminal conspiracy to Get Trump.
This criminal conspiracy IS Joe Biden’s reelection campaign.
They are coordinating all of it through the frickin’ Biden White House and DOJ.
Yeah.
Trump’s crimes.
Wait a minute. Are not you, as licensed lawyer, Jonathan, required to notify prosecutor of this apparent civil rights crime on part of both Bragg and Merchan?
“. . . Not Taking Law Too Seriously”
The Left is not serious about any of its pet issues. Not “disinformation.” Not the middle class/poor. Not women, children, democracy, the border. It’s not even serious about the Trump lawfare cases. The Left couldn’t care less whether it wins or loses those cases. The point is to make Trump toxic, to drain him financially and spiritually, and to keep him off the campaign trail.
The Left picks up an issue (e.g., 14A), gets shot down. Casually drops the issue. And lights on a new one.
The Left has a single, overriding desire: Power. Everything else is just a means to that end.
The Left’s lack of seriousness about anything (except the power to control you), is the corruption of its culture.
This is a brilliant summation of the proceedings, and I think it’s important to continue to point out the absurdity of it all. Initially the ominous depictions of a potential Trump presidency might have flown, but the dems have simply gone too far and too much has become obvious in Biden’s stead regarding how much, factually, better things were prior to 2020.
No thinking person is buying this anymore, but by all means let the dems keep trying and removing all doubt that our government, institutions, and deep blue states in particular, are populated by privileged, insane, puerile, clowns. Attempting to state otherwise is actually becoming the irrefutable argument.
James,
“No thinking person is buying this anymore, . . .”
Ah! But our leftist trolls, the brilliant legal minds they are, will tell us all of all the crimes committed by Trump, even though the good professor simply pointed out all the nonsensical devices of the Bragg lawfare machinery.
@Upstate
I said, ‘thinking person’. 😂 3/4 of the trolls here are plants anyway, what they believe in is a paycheck. 😂
Is it true Bragg is a DEI Hire?
Didn’t Earn It
JT: Thank you for untangling the “wicked web they weave . . .”
When you lay it out clearly, as you did, the absurdity is obvious.
Sam,
Well said.
I wonder if Bragg realizes he is setting himself up to be the subject of what NOT to do in law school for decades to come.
Nothing gets decided on the papers, not yet anyway, but it is the goal of those who crave power. And what better why to condemn trial by jury to mockery and ridicule, then by the farce you are witnessing? A Trump conviction which is a possibility, given Trumps challenges with telling the truth, would be a blow to trial by jury.
Bragg & so called Legal (Left wing radical I hate Trump Dem legal experts) do not care about the law, they want a Kangaroo court, with a extremely biased conflicted Judge) just want a conviction. A Banana Republic/Court – Where the Judge is doing everything to aid Bragg. Its simply to aid the DEM’s/Biden in the elections. Their case is falling apart but if you listen to MSNBC so called experts it’s just fine. Trump needs to make appeals while this trial is on, if need be, some experts indicate there is a way to get the appeal into the Supreme Court if the appeal courts refuse, very quickly.
. . . just want a conviction . . .
That used to be enough to move the polls.
But the longer this plays out. As FACTS are revealed, it becomes more clear that all these legal actions ONLY happen because Trump. The fake rape case from 30 years ago, legally could not have happened in 2020 or in 2024. ONLY the NY legislature opening a 1 year window in the Statute of Limitations just for Trump. The business fraud case that lacks a single victim. This case that only has misdemeanors, with SOL expired.
Moderate dems that were irked by mean tweets, are now seeing the results of Democrat values when they have the reins power.
A conviction on this trial may give Trump a boost that secures his election in November.
Iowan2,
Well said.
Author, author
Hear, hear
I wish more people could focus on the failure of the Grand Jury to stop this essentially groundless and vindictive prosecution in its tracks. In the Supreme Court last week, Mr. Sauer argued that Grand Juries have been so disempowered as independent checks on frivolous indictments that any prosecutor could get them to indict a ham sandwich. This claim did not arouse the slightest pushback from the 9 black robed ones — a sign that the disempowerment of Grand Juries is a fait accompli in the minds of judicial elites.
That the legal power of bodies of ordinary citizens be minimized and power commandeered by the law-degreed is a worrisome trend. The Founders believed in a Jury to be deciders-of-fact, and to decide if those facts fit the law, after adversarial presentations constrained by rules of evidence. At least part of that thinking was that juries of 12 Americans are a font of common sense and fair judgment, especially if all 12 can agree. There is a dilution of special interests in such a unanimous judgment — the same cannot be said for giving over this decision power to a single prosecutor or single Judge. That was part of the thinking behind Grand Juries and Trial Juries being wrested from the clutches of “expertise” — which may know more about the law, but lacks the breadth of perspectives and realities brought together in the Jury deliberation room. Law and justice take place in a broader social context — they are not sterile surgical procedures or computer algorithms — all cases require context, and human judgment and experience to counterbalance the procedural sterility.
Why didn’t the Bragg hush money indictment get quashed by the Grand Jury, since all Americans understand that there is nothing illegal about a candidate working to conceal unflattering information, especially personal life indiscretions? Were Grand Jurors allowed to demand answers to their questions as a condition for returning an indictment? Or, were they constrained by the courtoom elites (prosecutor and judge) to a purely ceremonial role?
Just repeat after me, repeat to yourself over and over again until it sinks in to your conscience—–they are just like us, they are just like us, they are just like us.
Or else come to the unavoidable conclusion there are people in this world who believe in fairness and justice for all and those who don’t.
And the people who sold this lie—-“they are just like us”, who are they and what is their motives?
pbinCA said: ” In the Supreme Court last week, Mr. Sauer argued that Grand Juries have been so disempowered as independent checks on frivolous indictments that any prosecutor could get them to indict a ham sandwich. ”
Just a footnote, albeit imo an informative one. The phrase ” “If a district attorney wanted, a grand jury would indict a ham sandwich.” is attributed to New York Court of Appeals Judge Solomon “Sol” Wachtler nearly 40 years ago, in 1985. A trivial observation, perhpas, but for the fact that it illustrates how a great many of these issues we are discussing as if they recently materialized, are, in fact, nothing at all new. The lesson, to me, is that we need to focus on upgrading our society to one that acts upon defensible principles, rather than only bellowing when it is our personal ox that we think has been gored. YMMV.
PbinCa-excellent questions and observations. The grand jury is not supposed to be the extension of the prosecutor and should, in fact, have greater leeway in trying to determine if a crime has been committed and if the individual under investigation may have committed the crime. It would seem that on the federal level and state and local level the grand jurors have become marionettes dancing on the strings of prosecutors. When you read the constitution one gets a little more sense of the gravitas of the Grand Jury system since it was spelled out that are no indictments without it. A constitutional right has been basically sidelined and only given cursory attention. It would seem that legislation, at least on the federal level, should lay out the duties and procedures of grand juries. Basically enacting legislation to give the process fairness and teeth. It seems judges have not helped. The judge should be the arbiters of the law and able to answer questions for the jurors about the law. Maybe the judges should also have their roles narrowly defined and spelled out or have judges who only handle grand juries. If anything the Trump Trials have greatly exposed the degradation of presumed innocence and “fair trials”.
Lastly trials must be tried in the jurisdiction of the “crime”. I don’t see that same requirement for grand juries in the constitution.
pbinCA
Agreed, but it is the result of our nations non-existent, civics education.
Juries believe they are bound by the Judges rulings and jury instructions.
But juries have plenary power to determine the facts. Juries also MUST judge the law and its application to the case before them. Judges will not allow the jury to know this fact
The grand jury system does not work anymore and that is true for quite a while. The ham sandwich story is 40 years old. Problem is that the prosecutor presents his case unopposed, and the jury consists of non-legal experts who are expected to discover fallacies in the prosecutor’s reasoning. The accused is not represented and does not even know he is the subject of a grand jury process. The grand jury system lacks adequate balance. A solution could be the appointment of an independent counsel for the accused to argue for the defense in the grand jury process, so that al least the legal reasoning of the prosecutor is being challenged if need be.
DoubleDutch said: “Problem is that the prosecutor presents his case unopposed, and the jury consists of non-legal experts who are expected to discover fallacies in the prosecutor’s reasoning.”
I was entertaining a similar thought. I’m not sure that counter-arguments from a representative of the defense team at that point in trial would be productive; I can envision an entire additional venue of back-and-forth objections and squabbing that might ultimately do nothing to improve the grand jurors’ ability to function. Another possibility might be for a neutral ombudsman of some kind, whose role is to critique the legality of the prosecutor’s arguments for indictment. The prosecutor would present his case to the Grand Jury, the ombudsman would render his critique, and then the Grand Jurors would decide; no rebuttals would be allowed. I’m not even sure that questions from jurors should be allowed, but I’m not firmly decided against. While the ideal would be a balanced and neutral presentation to the Grand Jury, it’s possible that this method might tend to swing the pendulum to be prejudicial against an indictment. If so, I am fine with that outcome, as I believe that the criminal justice system was intended to mitigate toward dismissal and aquittal, unless a crime was proven beyond reasonable doubt. Perhaps the ombudsman could be drawn from the pool of public defenders, or a similar pool of attorneys specific to this role. I don’t know what, if any, legal obstructions exist to the establishment of such a position, and would also concede that, as in all else, the process could be subject to corruption and abuse.
What is false about the bookkeeping entry?
Nothing. I do this for a living. No doubt that Trump’s accountants booked millions in legal fees. This $130k paid to Cohen might get booked as an NDA sub-account to Legal & Professional expenses. Probably not an unusual transaction on his financial reports. Clients rarely question how an expense is booked. Just that it is booked…if, they even pay that close of attention.
Precisely. My invoices to clients include a post Reimbursement of Costs. If I were to make payments on behalf of a client under a NDA, I would list it in the invoice under the latter category. clients, likely, would book my invoice in total as legal&accounting expenses, and not break it down to its underlying elements. And that would be correct.
Yes Dutch. The frequency of legal expenses in his ledger probably looks like Chevron, 76, Mobil, etc., entries to any construction company. No one is going to do a deep dive into why someone filled up their tank.
Settlement money for enforcing an NDA is not illegal or unethical, but what is alleged here is not this simple.
If Bragg can connect the payment to Trump’s desire to keep the story out of the news for campaign/election purposes rather than family embarrassment (i.e., John Edwards), then this is much different from a run of the mill NDA settlement payment.
Thus, “I do this for a living” means you work with philandering politicians for a living, then my guess is that you are failing to understand the nuance here.
This is not correct. To be a campaign expenditure the activity must be of a kind that would be undertaken only in a campaign. It is the nature of the activity, not the motive of the candidate, that makes the difference. It would be a violation of campaign finance law for Trump to have used campaign funds to dispose of personally damaging stories, even if his motive was to help his campaign. See Bradley Smith’s articles on this. He will testify on the definition.
Thus, “I do this for a living” means you work with philandering politicians for a living,
If that’s what you think that means, then you fail to understand how accounting works. Paying an attorney to draft an NDA is a legitimate legal expense. Why the client is paying for an NDA is not an accounting question. The real irony of this case is Bragg is projecting his desire to negatively impact a political campaign by prosecuting Trump for paying for a legitimate legal expense that Bragg claims was to avoid a negative impact on Trump’s political campaign. Given the fact Bragg’s case has actually had a positive impact on Trump’s campaign, makes the case of why Trump “desired” an NDA as nothing to do with politics.
honestly even in a small business you barely review what your people record for categories.
this was pulling a rsuty needle out of the haystack, the purported fraud
EconisEasy
Law demands brevity
Its Donald Trump.
(only pertinent facts needed)
That’s funny, that is almost what I wrote. However, unfortunately, some of the commentors on this site need the additional information,,,
So, promoting his own candidacy is boot strapped into a felony by way of strained interpretations of “falsifying business records”.
Meanwhile, whither “absolute immunity”, which is given to state prosecutors all the time, the doctrine having been made up by the SCOTUS, but somehow this is not available to a POTUS?
We slip further into incoherence. And it’s the legal profession and the judiciary leading the way. Ugh.
Here are some of the legal issues with this theory:
1. New York Law 17-152 appears to apply only to state and local elections;
2. Even if it applies, a violation requires “unlawful means” and none has yet been identified;
3. If the “unlawful means” is a Federal campaign finance violation, that is exclusively within the province of the FEC and DOJ, who have not acted on it;
4. Even if Bragg has authority to charge a violation of Federal campaign finance law, the use by Trump of private funds to suppress stories in a manner that could occur without regard to an election is not a campaign expenditure, as Brad Smith has argued (and will testify as to the definition in the trial); and
5. Even if you get past all that, Bragg would have to prove that when the ledger entry was made Trump intended to defraud and intended to conceal the use of unlawful means in the election.
There is also a substantial due process violation, because Trump has yet to be informed of how specifically he is alleged to have violated the law.
To paraphrase the great Tina Turner, ‘What’s LAW got to do with it?”
Daniel,
Thank you for your legal summary.
Professor, this is the best column you have written. It perfectly describes the single-minded pursuit of Donald Trump and the cult-like belief of the looney Left that this combination of Rube Goldberg and Harry Houdini can bamboozle enough of the public to give us another year or two of the worst president in US history, followed by the incredible joke of President Kamala Harris.
Here is the prosecution’s closing argument:
“It’s Donald Trump, and if we say he is a bad man, trust us, he is a bad man.”
🤔👍🤣😂🤣