Below is my column in the Hill on the approaching closing arguments in the Trump trial. Manhattan District Attorney Alvin Bragg appears to be launching his own school of abstract legal work in the Trump indictment. The key is to avoid any objective meaning.
Here is the column:
Abstract artist Jackson Pollock once said that his paintings have no objective meaning, so the best way for people to enjoy them is to stop looking for it.
For many of us, Manhattan District Attorney Alvin Bragg has created a new school of abstract law where there is no need for objective meaning. The jury is simply supposed to enjoy it for what it is: a chance to convict Donald Trump.
Pollock was famous for his painting drips on large canvases. Bragg has achieved the same effect by regenerating a dead misdemeanor on falsifying business records as 34 felony counts. To achieve that extraordinary goal, he has alleged that the document violations (which expired long ago under the statute of limitations) were committed to hide some other crime.
Originally, Bragg vaguely referenced four crimes and there have been months of confusion as to what he was specifically alleging as his criminal theories. Even legal analysts on CNN and MSNBC have continued to question the specific allegations against Trump as we head into closing arguments.
As it stands, there are three crimes that have been referenced by prosecutors: state and federal election violations and taxation violations.
Bragg’s legal vision for non-objective indictments was greatly advanced by Judge Juan Merchan, who will allow the jury to reach different rulings on what crime is actually evident in Bragg’s paint splatters.
Merchan has ruled that the jurors can disagree on what actually occurred in terms of the second crime. This means there could be three groups of four jurors, with one believing that there was a conspiracy to conceal a state election violation, another believing there was a federal election violation (which Bragg cannot enforce), and a third believing there was a tax violation, respectively. Nonetheless, Merchan will treat that as a unanimous verdict.
In other words, they could look at the indictment and see vastly different shapes, but still send Trump to prison on their interpretations.
Moreover, Michael Cohen is the sole witness even to address the elements of any of these crimes. Cohen is a convicted serial perjurer and disbarred attorney who appears to have lied again during the trial. Even if they consider his testimony, there is no direct corroboration in evidence on Trump’s intent or knowledge. As a result, the prosecutors will rely on circumstantial evidence to support whichever interpretation the jurors will buy.
Faced with charges that can mean different things to different jurors, Trump’s team will have to focus on the spaces between the paint drips; the canvas itself.
All of this case is based on the payment for a non-disclosure agreement that is perfectly legal and indeed common in business and politics. The Trump team needs to stop dancing around the NDA.
The jury likely believes that Trump knew of the NDA and supported it. The defense has to emphasize the testimony of David Pecker, the former publisher of the National Inquirer, that he killed stories for a variety of celebrities and politicians, including Rahm Emmanuel and Arnold Schwarzenegger. He also said that he killed stories for Trump for years before he even thought of running for president.
They need to emphasize the testimony of multiple witnesses that Trump seemed to want to avoid embarrassment to his family. He was also the host of a popular television show and an international businessman. The payment of a couple hundred thousand to kill stories is considered a cost of doing business for most celebrities, particularly those who have television contracts with provisions allowing cancellation for scandals.
In the instructions, the court will tell the jurors that payments cannot be campaign contributions if they would have been made anyway regardless of the campaign.
They also need to point out other gaps. It was not Trump who listed payments as legal expenses or retainer payments. Witnesses said that payments to lawyers are routinely recorded as legal expenses. Indeed, it is not clear how the money should have been denominated but the decision was being made by others in the Trump organization and by Cohen himself.
Moreover, on the characterization of payments as part of a “retainer,” the other party to that characterization was former Trump Organization CFO Allen Weisselberg. He is currently in prison in New York, but was not called by the prosecution. The prosecutors elected to rely entirely on Michael Cohen with various witnesses, including Cohen, referencing Weisselberg’s decision on how to pay the money.
That made the canvas itself largely Michael Cohen. All of this is held together by a witness who admitted that he has lied to banks, Congress, prosecutors, business associates, and virtually every creature that has ever walked or crawled on the face of the Earth. He also lied in front of the jury about the critical call where he said that he told Trump about the NDA payment.
The defense showed that that 96-second-long call was to Trump’s bodyguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that indicated that their conversation was actually about a teenager harassing Cohen.
Moreover, Cohen admitted to making millions by bashing Trump, and that he has a personal interest in his conviction.
You can throw paint on Cohen all day, but it will not cover up the fact that he is a pathological liar and grifter.
That is why I still believe that a hung jury might even be the most likely possibility. That may change when we see Judge Merchan’s final instructions. However, the only thing worse in New York than being a Trump supporter is being a chump. To rely solely on Cohen and not even call someone like Weisselberg is to play these jurors as chumps.
Pollock was doing more than just throwing paint at a canvas. As Pablo Picasso said, “there is no abstract art. You must always start with something. Afterward you can remove all traces of reality.” Bragg started with nothing and sold it as a legal abstraction.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
I was a bartender working my way through grad school in the 90’s during Ruby Ridge and Branch Dividian FBI Saige. I was surprised by how many people saw the federal government as aggressors simply because they could get away with it. People were not cheering the FBI.
Our government finally burned the Dividians complex down, men, women, children, and all to make a long lost point. At Ruby Ridge an FBI sniper killed a teenager and one other.
So not think you know what the Feds will do when cornered.
< At Ruby Ridge an FBI sniper killed a teenager and one other.
Details matter.
The ‘one other’ was Randy Weavers wife. She was standing on the front porch, holding their infant daughter.
But will shoot to kill approval on a warrant is legal “boiler plate”, it none the less still a shoot kill, BUT only if their lives are at danger, which is why the snipers kill shoot was approved up the chain of command. This was not a sniper with and itchy trigger finger. He was under orders.
Iowan2 said: “Details matter.”
Yes, details damned well do matter. Details such as how many ATF officers or agents were punished for that entirely wrongful Ruby Ridge shooting? That number is ZERO. The shooter, Lon Horiuchi, was never disciplined in any way by the Federal government. He did face involuntary manslaughter charges from the local prosecutor, Denise Woodbury, in Boundary County, ID, but a Federal District judge dismissed those charges on the basis of qualified immunity. Attempts to reinstate the charges after the 9th reversed that decision went for nothing when Woodbury failed to be reelected in favor of a successor who was more amenable to Federal pressure (I won’t speculate on the degree of difficulty required to manipulate an election in a county of 12,000 people). Horiuchi got to enjoy a cushy retirement and is apparently still alive somewhere, although I would be very surprised if the Feds didn’t fashion him a new identity. How many ATF and FBI officers or agents were punished for the incineration of 51 adults and 25 children at Mt. Carmel, Texas on Janet Reno’s watch? ZERO. How many ATF officers or agents are likely to be punished for what arguably was the murder of Bryan Malinowski in Arkansas in March? It should be a familiar number by now. Had there been serious, honest attempts to deal with the policy and attitude problems that resulted in the Ruby Ridge incident and the Mt. Carmel massacre, some 168 other people might not have perished a few years later in Oklahoma from a misguided act of revenge.
Why even think about it as ‘what the Feds will do when cornered’? Keep it simple: they don’t pick government employees because of their intelligence (if you think otherwise, you must never have worked for the government or dealt with government employees). As in, what is the main difference between an USPS worker caught dumping/burning mail and an ‘FBI sniper’ at Ruby Ridge? Answer: the uniform.
Anonymous said: “Why even think about it as ‘what the Feds will do when cornered’?”
No Feds were cornered in any of these incidents. They DID the cornering. That is a dramatically different proposition.
“The judge is doing such an obviously-and-publicly bad job that it makes me wonder if he is mocking the system or if this is the real system.
How can we explain this level of “incompetence” unless Democrats know they can commit any crime they want, right in the open, because they control the legal system where it matters?” @ScottAdamsSays
Somehow, this being Memorial Day, I feel very strongly that the men and women buried below those Crosses, Stars of David, and other monuments did not give up their lives for this type of legal proceeding to occur in this country.
Smoking guns are as rife as Hunter smoking crack!
“Can you meet this evening early,’ Hunter wrote. My father will be in New York also and he wants me to attend the Sandyhook memorial service with him and I would like him to meet you along with my uncle [Jim Biden] and then you and I can talk let me know if that works.”
“No problem,’ Yadong replied. ‘Pls let me know where and when to meet.”
“The texts to set up a meeting with Joe came after months of negotiation about the Biden family’s involvement in the deal with the Chinese government-linked company, in exchange for $10 million a year.”
“The messages come from a fresh tranche of documents released by Congress on Wednesday, given to them by IRS agents who investigated the First Son.
On December 12, 2017 Hunter wrote on the Chinese messaging app WeChat to Liu Yadong, a top executive at Chinese oil giant CEFC, to arrange a meeting with his father.”
“I am sitting here with my father and we would like to understand why the commitment made has not been fulfilled,’ Hunter wrote, in text messages obtained by the IRS investigators and published by Congress last year.”
https://www.dailymail.co.uk/news/article-13448897/Hunter-Biden-meeting-Joe-Chinese-business-partners-texts-Sandy-Hookk.html
Memorial Day is a reminder that the Tree of Liberty needs occasional watering with the blood of patriots.
What might modern patriots do if Trump were to be found guilty?
How many might pledge their fortunes, honor and their very lives for Freedom?
I am almost certain the outcome of this trial has been preordained.
Or another way to look at it is trump is guilty AF.
“This means there could be three groups of four jurors, with one believing that there was a conspiracy to conceal a state election violation, another believing there was a federal election violation (which Bragg cannot enforce), and a third believing there was a tax violation, respectively. Nonetheless, Merchan will treat that as a unanimous verdict.”
Is that even legal?
They don’t care if it’s legal or not. They KNOW the likelihood of reversal on appeal – which will happen AFTER the elections – is nearly 100%.
The goal is to use taxpayer money to get an unjust conviction before the election so Democrats and the media can use the term “convicted felon” every time Trump’s name is mentioned. They only have to convince 1-2% of voters in swing states who are otherwise inclined to vote for Trump to stay home or switch to Biden.
I happen to know a woman who hates Trump and has voted Democrat her entire life who will vote for Kennedy. I don’t know how representative she is, but I don’t think they factored that into their evil strategy.
Farmer,
Doesn’t the State election law, apply only to State of NY, and local candidates?
That is how I read it. NYL 17-152 refers to elections for “public office.” The law does not define that term. But it defines “public officer” to be the holder of a state or local office. I am not aware of any cases on this question, though.
Daniel
If the prosecution brings up these three crimes, in Closing, is the Defense then allowed to rebut the Prosecutions theory in the Defense Closing arguments?
I think that depends on the instructions. If the judge says it applies, the defense cannot really say otherwise.
Professor Turley making predictions again? I would have thought he learned his lesson from the last fiasco regarding Cohen.
We don’t know how the jury will decide. We don’t know what the instructions to the jury will be. We’ll just have to wait and see.
It’s amusing how professor Turley tries to steer the narrative away from obvious problems for the defense. He doesn’t mention any of course. Costello’s performance was a problem. The contrast between Cohen’s and Costello’s behavior is like night and day. That is certainly going to have an impact on the jury. Cohen may be a liar and a cheat, but he freely admitted it and remained calm and cool under intense questioning by the defense. Costello, became contemptuous, combative, and disrespectful to the judge in front of the jury. It doesn’t matter if Cohen is a “serial perjurer”. He’s still the person who was directly involved in the scheme to falsify the business documents. Turley neglects to mention that Weisselberg is also a perjurer and he’s in jail for that as we as other crimes. Both Cohen and Weisselberg were close former Trump employees. Trump liked them because they were indeed liars and loyal subjects, until they were no longer useful. This is what the jury will see. Because this trial is not about Cohen, it’s about Trump. Trump is well known to the jury as a prolific liar and a grifter. Just like Cohen.
The NDA has nothing to do with this issue. Turley brings it up because it’s a nice distraction from the charges, falsifying business records. The statute of limitations is irrelevant. Because there was an extra year added due tot he pandemic and the fact that Trump was not continuously residing in NY.
The odds of Trump getting convicted are high. And this is why Turley and the rest of Fox News defending punditry are trying to minimize for Trump’s fans and supporters.
We normies long ago realized the demoncrats have put every person in Trump’s orbit on trial or in jail or prison for NOTHING.
It all has exactly zero sway and just the opposite.
What is clear is the demoncrats will destroy the life of anyone on the jury who doesn’t convict.
So this is another gigantic fraud and lie. That entirely characterizes the demoncrat party 100% of the time.
Everyone now knows this. Even you demoncrats know it.
Raw Fascism.
No, that’s ridiculous. “Public office” is not a term of art; it obviously means exactly what it means in ordinary English, and it includes federal offices, including the presidency.
But it requires a conspiracy to influence voters by illegal means, so it just kicks the can down the road, because to find that that was the crime concealed by the falsified business records a juror would then have to find what those illegal means were, and that they’d been proved beyond reasonable doubt. I don’t see how an honest juror could do so.
Why do you say “public office” is unlimited when the law defines “public officer” to mean only state and local officials? Do you have any case or official interpretation to rely on?
Is that even legal?
IANAL, but my civics understanding of Rights, informs me, a Jury must be unanimous in their decision. Of course that interpretation rests ONLY with this judge in this trial. My understanding about Merchan’s rulings, has the tally of reversible rulings, fast approaching double figures.
All the facts of the trial, prove Merchan was choosen to get the conviction, at all cost. Knowing, no matter what happened during the trial, these phony charges were never enough to bring the case, and overturning was always inevitable.
They have to be unanimous in their decision. They have to be unanimous that he falsified business records, and that he did so in contemplation of some other crime, or to conceal some other crime. They don’t have to be unanimous on which crime they think that was. But all the possibilities would have to have been proven beyond reasonable doubt.
It is legal, provided that all three are actual crimes, and the prosecution has shown the jurors enough evidence that they could find that the documents were falsified in contemplation of, or to conceal all three crimes. Then the jury doesn’t have to agree which of the three crimes Trump really did contemplate or attempt to conceal. But if a juror finds that he did it to conceal something that isn’t a crime, or for which there is insufficient evidence for him to find beyond reasonable doubt that Trump was contemplating it or attempting to conceal it, then as I understand it that juror cannot vote guilty, and the judge can’t accept his guilty vote.
As a practical matter they presumably won’t each be asked which crime they thought it was, so none of this is relevant; their guilty votes will be accepted and we’ll never know which crime each juror thought was involved.
So the right to know the crimes you are being jailed for is no longer a constitutional protection?
Iowan 2 – Also, it is important that the appellate courts understand what happened.
If the instruction is as Turley speculates, then the jury could conclude by 8-4 majorities that none of the three alleged crimes was proved beyond a reasonable doubt. But Trump could nonetheless be convicted because 12 jurors would have concluded that at least one of the crimes was proved beyond a reasonable doubt. This would happen if the four in the minority were different for each crime.
It is hard to believe that an instruction that allowed this would not result in a conviction being reversed on appeal. But that would be after the election.
Worst-Case Trump Scenario:
Trump get sent to NYC Prison:
1. He is found Hung-to-Death under mysterious conditions like Jeffery Epstein,
2. He’s Whacked on the Streets of NYC like Seth Rich (“Clintoned”) on the way to prison,
3. He goes to a NYC Prison then is transferred to Super Max Prison for security reasons and not heard of again until November 6th 2024 the morning after he is elected President.
{Note: The Dems have a few more Chapters to go in their Playbook (GA, Mar-A-Logo, …)
The same prospects apply to Hunter Biden, except he’ll not be elected to any Office.
Orange is the new; Red, White, and Blue 🇺🇸
The Secret Service wouldn’t allow that.
Accident just Happen to Happen
Mortal Error: Secret Service Special Agent George Warren Hickey Jr. – JFK “accidental assassin”
https://en.wikipedia.org/wiki/Mortal_Error
There are few Blood-Thirsty Lyndon B. Johnson type challengers to Trump’s Presidency
Hillary Clinton
Liz Cheney
maybe even sweet lil’ol Nikki Haley …
I’m sure there’s few more
The jurors know what is expected of them. They will play their role to find Trump guilty so he will have to campaign from Rikers. Of course, this means his residence will change to NY, so he will be able to take RDS as VP.
Democrat lawfare is turning Trump into Mandela. Voters understand what Democrats and the Injustice System are doing to Trump. It’s being done to them too.
Rather than comment about Alvin Bragg l want to salute all my brothers and sisters on Memorial Day for their service. God Bless all of you.
Margot,
Thank you.
Thanks Margot and back at ya. I am playing baseball in San Diego this weekend and was privileged to take my family, including my 3 young granddaughters to the Cabrillo National Monument and Fort Rosecrans National Cemetery. It was quite the moving experience.
Margot,
I join Upstate in saying thank you. Each Memorial Day I re-read a tribute I wrote many years ago to a close friend who died in Vietnam. I posted it here last year. Today, I will do so again. Please bear with me:
Billy was a Cuban American boy with whom I grew up in West Palm Beach. If you think of the stereotypical passionate Latin American male, that was Billy. He was a little taller than me; he had dark skin; and all the girls I knew loved him instead of me. Billy had a unique talent. He sang like an angel. He had a tenor voice that already was mature in high school. The girls that I wanted to like me, swooned when Billy sang. He really did have an unfair advantage.
Billy loved to sing, especially in church when our sanctuary choir backed him up. Billy’s voice filled our souls, brought tears to our eyes, and goose bumps to our skin. On graduation from high school, Billy enrolled in college on a scholarship in a school of church music.
Too soon, Billy’s student deferment was gone. Rather than be drafted, like many of my friends, Billy joined the military (he chose the Army) so he would have some control over his own destiny. Billy went to school, became a helicopter pilot, and then was sent to Vietnam. He was not there long—a little over nine months. Billy was flying at 5000 feet between Long Bin and Saigon when someone on the ground fired a shoulder-held missile and blew the helicopter up. It was September 1969. As a Peace Corps Volunteer, I was growing demonstration crops of “Miracle Rice” on Panay Island in the Philippines when the telegram was delivered to me, letting me know that my friend Billy was dead.
On this Memorial Day, I will remember and mourn Billy again. Remembering keeps him in my life. But remembering serves another purpose, as well. Remembering makes me face the reality that the world is not wonderful. Billy was a good person. Hurting someone else hurt him. But as a member of the military doing his duty, a duty that he was doing for us, he was forced to kill others who were determined to kill him. My friend Billy died, as did all the other veterans we honor, because they served with honor in a dishonorable world.
On this Memorial Day, the world seems even more imperfect; we are even more disillusioned. Terrorism here and around the globe has taken human culture to a new low in which innocent death—even children—is the goal rather than a terrible consequence. And once again, facing forces impossible to comprehend, we have turned to those in military service to stand in our place in harm’s way. They need our prayers today, and they shall have them. And so, I salute you Billy. My friend, I can still hear you singing.
Honestlawyermostly,
Thank you for sharing that.
@ Honestlawyermostly,Upstate,Dave. HAND SALUTE
I’d be guessing but I think just about everyone on this blog over the age of 60 or 70 knows of a Billy. My Billy was named Bobby and the memories are just as acute, sad, and emotional. Thank you and god bless all the Billie and Bobbies who died so we can discuss the world today.
“Pollock once said that his paintings have no objective meaning, so the best way for people to enjoy them is to stop looking for it.”
I totally agree with Pollock about that, and I would go further to opine that the best way to stop looking for meaning in his paintings (and thereby achieve maximum enjoyment of them) is to avoid looking AT them, altogether. Unfortunately, we do not have a viable option to stop examining this trial and the misconduct exhibited in it, because despicable lawfare at this level is endangering all of our futures.
Judge Merchan’s KANGROO COURT – will do anything and everything to convict Trump. His instructions will provide an easy way to find TRUMP guilty, even though his instructions and 100% of this entire case will be thrown out on Appeal. This whole process defies any sense of the law for over 250 years. This is a show trial run by the radical Left DEM’s and BIDEN ADMIN. The whole World knows it, even BBC ( Liberal) stated this is a JOKE. But the DEM’s, MSM, Left Wing Radicals etc. do not care, Even Biden is planning to make comments on the results, he has already scheduled it, sounds like the FIX is in. They will be surprised when they find out the whole thing will backfire on them, Trump continue to rise in the polls, African Americans, Hispanics, working class Americans etc. are flocking to Trump, in part due to the Lawfare of the DEMS.
It is obvious to me that Judge Juan Merchan simply wants a conviction so that Trump can be labeled as a felon, if only for the time span until reversal on appeal. He even fully expects a reversal but he will have his moment of fame, jurisprudence be damned. And his daughter will be richer and dad will retire, perhaps with a book contract.
Anonymous said: “dad will retire, perhaps with a book contract.”
If this abuse of his judicial responsibilities is ultimately credited with keeping Trump out of the White House, Merchan might be well advised to invest some of those prospective book royalties in security services and body armor. Because if the anti-Trump lawfare accomplishes what is hoped by those promoting it, I suspect there is going to be a meltdown in this country the likes of which has not been seen in long, long time. Not a Jan 6 phony, deep-state-abetted sham, but the real thing. I have to wonder if Merchan is truly so stupid that he doesn’t fully understand the ultimate personal risks incurred by what he has undertaken. Possibly he plans to go ex-pat before those risks can catch up with him? I certainly do not advocate that anyone should visit any extra-legal consequences on the Judge, I am just speculating on the probability that such acts might occur under certain cirsumstances.
It’s not going to happen. If any of it would happen, we already have had a list so long that should have been taken down that we know it is not going to happen.
Total information awareness and ease of life in the USA is so great it’s not on the table.
There is no way to organize anything without being instantly discovered.
Even those under direct outrageous attack have done absolutely nothing, because of course their lives are so great anyway.
If the economy and supply chain breaks completely, or the electrical grid, something that, then of course something will happen.
So all the goons have to do is keep the party going, and they are 100% safe.
Shakdi said: “If any of it would happen, we already have had a list so long that should have been taken down that we know it is not going to happen.’
So far, you are correct. But my take is that you will continue to be correct about that, until suddenly, one day, you are not.
Yet, Jackson Pollack’s art is far more organized and logical than Alvin Bragg’s. Pollack had a plan. Bragg reinvents his on a daily basis.
thats funny
FIX THE NAME ON THE FIRST PARAGRAPH
Shouldn’t the defense and prosecution have the instructions in advance so they know how to structure closing arguments?
It is hard to believe that the law would allow conviction where the jurors don’t agree on the specifics of the other crime. If this is what the instructions allow, it will likely be another basis for reversal on appeal if there is a conviction.
Since two of the jurors are lawyers, it is unlikely that the State can secure a guilty verdict. However partisan those attorneys might be, they would feel self-contempt for the rest of their lives if they support an absurd legal theory as a basis for a guilty verdict.
Sorry to differ. There are plenty of lawyers who support absurd legal theories as the basis for a guilty verdict and are proud of it if it serves the Dem cause. Look no further than Andrew Weissman.
wiseoldlawyer said: ” There are plenty of lawyers who support absurd legal theories as the basis for a guilty verdict and are proud of it if it serves the Dem cause.”
No offense intended. but there also seems to be an ample supply of lawyers who are inapable of self-contempt, or even serious self-examination.
Turley: “That may change when we see Judge Merchan’s final instructions.” NY State law allows judges’ instructions to the jury not to be made public. We may not actually get to see them and will have to rely on secondhand contemporanious recall by reporters and others in the courtroom. Some Trump supporters thought the one-week delay would harm Trump’s team but I think it only allowed the jury additional time to see and read just how wrong this case has been from the very beginning. Those two lawyers on the jury by now have become likely advisors to all other jurors and, hopefully, will use their training to instruct others on how to toss this case.
“Those two lawyers on the jury by now have become likely advisors to all other jurors and, hopefully, will use their training to instruct others on how to toss this case.”
While it is possible those two lawyers will have integrity and be willing to find Trump innocent one must keep in mind that after the trial they, like the George Floyd jurors, will have to live in the community and practice law there. We must always remember there was a reason for the wise words of the bard “First, we kill all the lawyers”!
Don’t expect too much.
Steven Walser, the “First, …” quote was spoken by a low-life, if not criminal.
Ahem, this may not be the venue for my comment but lawyers want book deals too. If they had any honor they would have resigned from the jury loud and publicly, and refusing to be associated with a lynching.
BUT. Let me guess: it is probably unethical to not take advantage of a golden opportunity to set oneself above a kangaroo court.
JJC said: “NY State law allows judges’ instructions to the jury not to be made public.”
Even after the fact, in the transcript? How can that be justified? I thought that transcripts of court proceedings were supposed to reflect everything of an official nature that occured in the courtroom during a trial.
like the criminal judge will care….he will just OVERRULE them and fine Trump another $1/2 Billion and harassing him some more!
You live in a fascist state….