Columns, Constitutional Law, Criminal law, Supreme Court

The Land that Law Forgot: The Supreme Court and the New York Legal Wasteland

Below is my column in The Hill on last week’s cases and the sharp contrast to the handling of the Trump case in Manhattan. Two of these cases hold particular resonance with some of us who criticized Bragg’s prosecution.

Here is the column:

In 1976, Saul Steinburg’s hilarious “View of the World from 9th Avenue” was published on the cover of the New Yorker. The map showed Manhattan occupying most of the known world with wilderness on the other side of the Hudson River between New York and San Francisco. The cartoon captured the distorted view New Yorkers have of the rest of the country.

Roughly 50 years later, the image has flipped for many. With the Trump trial, Manhattan has become a type of legal wilderness where prosecutors use the legal system to hunt down political rivals and thrill their own supporters. New York Attorney General Letitia James (D) ran on a pledge to bag former president Donald Trump. (She also sought to dissolve the National Rifle Association.)

Manhattan District Attorney Alvin Bragg also pledged to get Trump. Neither specified how they would do it, but both were elected and both were lionized for bringing controversial cases against Trump.

Just beyond the Hudson River, the response to these cases has been far less positive. James secured an obscene civil penalty of almost half a billion dollars without having to show there was a single victim or dollar lost from alleged overvaluation of assets.

Through various contortions, Bragg converted a dead misdemeanor case into 34 felonies in an unprecedented prosecution. New Yorkers and the media insisted that such selective prosecution was in defense of the “rule of law.”

This week in the Supreme Court, a glimpse of the legal landscape outside of Manhattan came more sharply into view. It looked very different as the Supreme Court, with a strong conservative majority, defended the rights of defendants and upheld core principles that are being systematically gutted in New York.

In Gonzalez v. Trevino, the court held in favor of Sylvia Gonzalez, who had been arrested in Castle Hills, Texas in 2019 on a trumped-up charge of tampering with government records. She had briefly misplaced a petition on a table at a public meeting.

This was a blatant case of selective prosecution by officials whom Gonzalez had criticized.  She was the only person charged in the last 10 years under the state’s records laws for temporarily misplacing a document. She argued that virtually every one of the prior 215 felony indictments involved the use or creation of fake government IDs.

Although the charges were later dropped, the case reeked of political retaliation and selective prosecution. There is no evidence that anyone else has faced such a charge in similar circumstances. Yet when she sued, the appellate court threw her case out, requiring Gonzales to shoulder an overwhelming burden of proof to establish selective prosecution for her political speech. The justices, on the other hand, reduced that burden, allowing Gonzalez to go back and make the case for selective prosecution.

Unlike the Trump case, the criminal charges against Gonzales were thrown out before trial. For Trump, selective prosecution claims were summarily dismissed, even though no case like Bragg’s appears to have ever been brought before.

The Bragg case is raw political prosecution. No one seriously argues that Bragg would have brought this case against anyone other than Trump. Indeed, his predecessor rejected the case. Yet people were literally dancing in the streets when I came out of the courthouse after the verdict against Trump. In fact, the selectivity of the prosecution was precisely why it was so thrilling for New Yorkers.

Another case decided this week was Erlinger v. United States. The justices ruled 6-3 (and not along the standard ideological lines) to send back a case in which Paul Erlinger had been convicted of unlawful possession of a firearm as a felon. He was given an enhanced sentence for having three prior convictions for violent felonies or serious drug offenses. However, the court denied him the right to have a jury rule on the key issue of whether these prior offenses occurred on different occasions.

The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This is in contrast to how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant.

In Trump’s trial, Judge Juan Merchan effectively guaranteed a conviction by telling jurors that they did not have to agree with specificity on what had occurred in the case to convict Trump. The only way to get beyond the passage of the statute of limitations on the dead misdemeanor for falsifying business records had been to allege that the bookkeeping violation in question occurred to conceal another crime. Bragg did not bother to state clearly what that crime was, originally alluding to four different crimes.

It was not until the end of the case that Merchan would lay out three possible crimes for the jury. All the way up to the final instructions in the case, legal analysts on CNN and other outlets expressed doubt about what the actual theory of the criminal conduct was in the case.

Despite spending little time on these secondary crimes at trial, Merchan told the jury that they could convict if they believed that invoices and other documents had been falsified to hide federal election violations, other falsification violations or a tax violation.

Those are very different theories of a criminal conspiracy. Under one theory, Trump was hiding an affair with a porn actress with the payment of hush money before the election. Under another theory, he was trying to reduce a tax burden for someone else (that part was left hazy). As a third alternative, he might have falsified the documents to hide the falsification of other documents, a perfectly spellbinding circular theory.

If those sound like they could be three different cases, then you are right. Yet Merchan told the jurors that they did not have to agree on which fact-pattern or conspiracy had occurred. They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved.

That was all that is required in New York when in pursuit of Trump.

Neither of these two cases is controlling in the Trump case, although there are two others pending on the use of obstruction (Fischer v. United States) and presidential immunity (Trump v. United States) that could affect some of the cases against Trump. But Gonzales and Erlinger demonstrate the high level of protections that we normally afford criminal defendants. A court with a 6-3 conservative majority just ruled for the rights of all defendants in defense of the rule of law.

That is not how the law is seen from 9th Avenue.

It all comes down to the legal map. As even CNN senior legal analyst Elie Honig observed, this case of contorting the law for a selective prosecution would not have succeeded outside of an anti-Trump district.

On the New Yorker map circa 2024, once you cross the Hudson River eastward, you enter a legal wilderness.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University School of Law. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon and Schuster, 2024).

314 thoughts on “The Land that Law Forgot: The Supreme Court and the New York Legal Wasteland”

  2. Here is another fun one. Smeagol in this case appears to be that bug guy again. His posts were deleted, but Tom was wising up at this point and started quoting him in all of his responses so the conversation would still make since to anyone wanting a good laugh at Elvis’s expense.

    https://jonathanturley.org/2023/08/22/garlands-theater-of-the-absurd-why-the-hunter-biden-scandal-is-no-longer-a-laughing-matter/comment-page-1/#comment-2315949

    1. Because all leftist judges are clearly not adhering to the verbatim Constitution – they arbitrarily amend meriting the penalty of drawing and quartering.

      1. They are acting lawlessly, meriting severe penalty.

        Depending on the severity of infraction, drawing and quartering needs to be considered.

        Flaying alive is also a good remedy for rogue, lawless leftist “judges” (h/t Cambyses II)

  7. Unfortunately, we will probably see other acts of violence in support of DJT when he goes to trial. That’s why Jack Smith now has a protective detail. The indictment of DJT down in Fulton County, Florida–probably to come sometime this week–will also involve threats or actual acts of violence.

    Here is Dennis, with another prediction that aged like milk left in the GEORGIA sun.

    Also note his geographic ignorance.

    https://jonathanturley.org/2023/08/14/age-of-rage-uchicago-report-finds-30-million-american-view-violence-as-justified-to-keep-trump-for-power/comment-page-3/#comment-2312948

  9. Putin wanted to kill Zelensky so it is only fair that Zelensky kills Putin in a missile barrage. That will end the war.

        1. It’s quite telling that ‘Gigi’ said the following not far below the ‘Dennis’ comment: “So, you are admitting you intend to harass me, Dennis, Fish Wings and anyone else with whom you disagree? That’s trolling, and it is supposed to be banned here.” When she and Dennis are here with every post to harass and troll Mr. Turley, telling him he’s wrong all the time, that he should write other things, etc. Guess they should be banned, then, by her/their own admission.

          There’s also the one more current example where Dennis admitted it’s his ‘job’ to ‘poke holes’ in Mr. Turley’s articles…

          I’ve called them out, as others also have, for being one and the same. ‘Dennis’ acts more calm, as if just gently chastising Mr. Turley, but when he’s ‘Gigi’ he lets it all hang out/rages. They’ve used very similar language many times, which OK might just be using the same talking points or the same variant of TDS.

          How many years has he/she/they been here trolling like that, and being called out for the lies and other BS?

          1. I have made the point before that they engage in ad hom on Turley daily. Just more of their lunatic double standards.

            Also they engage in ad hom daily in referencing the readership here as a group, as if that makes it ok. Gigi has called the readers everything but the kitchen sink.

            Yet they both love to whine about how hey are treated. So typical of lefty libtards.

          2. Gigi also likes to use “Trumpy Bear”. Used regularly by Dennis and Elvis.

  11. OT

    Quite the hit job from WSJ on U.S. District Judge Aileen Cannon, quoting a GWU Law Prof. No mention of Professor Turley however. The hit piece was as disgusting and underhanded as they come, misogynistic, ageist, racist, bereft of objectivity and dripping in innuendo. It was a drive by character assassination.

    As Trump’s Documents Case Crawls Along, Questions About Judge Abound

    Trump’s legal team has filed a stream of long-shot arguments, and the number of unresolved issues is piling up, with no trial date in sight. “She could be overwhelmed and at sea, or super insecure, or it’s just about delay. You could interpret it several different ways. But whatever the reasons, it certainly has the effect of bogging things down,” said Randall Eliason, a George Washington University law professor and former public-corruption prosecutor.

    The highest-profile case in South Florida is playing out somewhat improbably in Fort Pierce, where Cannon sits as the only district judge in a gleaming white courthouse that hulks over the slow-paced downtown. Locals lovingly describe the area as “old Florida,” where lizards dart between palm trees and peacocks roam free.

    Without colleagues down the hall, Cannon also lacks routine, informal interactions with longer-tenured jurists who might have provided mentorship, lawyers who practice in the district said.

    Cannon also lost a law clerk who quit midterm, a move that is rare for young lawyers who take on the prestigious posts for a year after finishing law school. The former clerk now works for the large firm WilmerHale in Washington, D.C., where her online biography lists a recent clerkship in a South Florida federal court but doesn’t identify the judge. The departure was first reported by the legal publication Original Jurisdiction, which also reported that a second clerk backed out of an extension to remain in Cannon’s chambers for additional time.

    Cannon didn’t respond to a request for comment.

    Florida Republican Sen. Marco Rubio contacted her in 2019 to express interest in considering her for a judicial seat. She was nominated at age 39. Her selection surprised some in the South Florida legal community, where she was viewed as having less trial experience than a typical nominee for district court.

    https://www.wsj.com/us-news/law/as-trumps-documents-case-crawls-along-questions-about-judge-abound-aece6c11

  12. The Law that Chefs Forgot

    In this episode, Chef Gordon Ramsey, net worth $220 million (2024) Fvcks up a grilled cheese sandwich in Tasmania. Nobody can find Gordon in Tasmania. Where is he?

    Could this be Trump’s VP pick? Stay tuned.

  13. Even the SC conservative majority found that a bridge too far because the leading cause of domestic partner deaths is guns.

    Here, Dennis the cock sucking liar is at it again.

    First he claims that the majority found that guns cause deaths. He also claims that they cause the most deaths.

    Who here believes that guns CAUSE deaths in domestic abuse cases.

    Hey Dennis, show me one fvcking death certificate that says CAUSE OF DEATH: Gun

    COCK SUCKING LIAR

    1. Dennis believes that if swimming pool drownings were the most common METHOD of domestic violence deaths, that swimming pools should be outlawed.

      Of course, a third grader would see the phallicy [sic] of that argument. And pools aren’t even protected by the 2nd amendment.

  14. See below for another installment of Denny’s

    Cock Sucker’s Supermarket Tabloid

    Watch as he tries again to pretend he knows anything about guns or the law.

    I guess he hasn’t heard:

    Questioning our legal system is dangerous and irresponsible—Joe Biden

  15. Jonathan: The conservative majority on the SC giveth with one hand and taketh away with the other hand. It is interesting that in Gonzalez v. Trevino that case was an appeal from the 5th Circuit Court of Appeals which is the most radical right-wing of any Court of Appeals. It overseas cases from Mississippi, Texas and Louisiana. In another case, US v. Rahimi, the SC slapped down the 5th Circuit again in its erroneous decision finding the 2nd Amendment protects the right of a serial abuser to posses a gun and threaten his partner. Even the SC conservative majority found that a bridge too far because the leading cause of domestic partner deaths is guns. In Rahimi, Clarence Thomas was the sole dissent.

    It’s pretty clear that Thomas would like to move SCOTUS in the direction of the 5th Circuit. Thomas made a step in that direction by declaring in the Cargill case that “bump stock’s” are not machine guns–despite the clear meaning and intent of Congress in its 1986 legislation. For Thomas the 2nd Amendment trumps every attempt to control gun violence. That’s why critics of Thomas say in the next mass shooting the grave markers for the next victims will also have the inscription “Courtesy of Clarence Thomas”!

    1. Dennis knows what a machine gun is!!

      And AR-15’s ruin the meat!!!!

    2. Dennis – Ask yourself, why do you Democrats teach children to revere and lionize a loser, drug-addicted, criminal named George Floyd — but not a black man who grew up dirt poor in the Deep South, was once a radical Marxist, and has been serving on the Supreme Court for over 30 years? Why do you Democrats disparage Thomas who has a truly great American success story that should be an example for all children, especially inner city black children?

      Watch this film: Created Equal, Clarence Thomas In His Own Words.

      Try to LEARN something about what makes America great and what makes a man like Clarence Thomas a truly great man.

      1. *Oh and Dennis, there is bonus footage in the film that demonstrates what a complete dumb-ass POS Senator Joe Biden was…and president Joe Biden still is.

    3. Dennis McIntyre, the Soviet Democrat Lyin’ Like A Proud Biden – the THIEF that shows up every single day to space in Professor Turley’s daily comments section to post his propaganda and Biden level lies. There are CHILDREN that create their own web space to publish their blogs, opinions, comments.

      Dennis is so cheap and so depraved he steals space from Prof Turley – and then starts each litany of lies with “Jonathan:”

      As though Professor Turley is his closest and dearest friend. Turley meanwhile looks and asks “How did that piece of dog shyte get on my shoe and my comment section?”

    4. “That’s why critics of Thomas say in the next mass shooting, the grave markers for the next victims will also have the inscription “Courtesy of Clarence Thomas”!

      Of course, the setup of the next 9/11 and the ones following are already here courtesy of Joe Biden, who lets terrorists run free among us. Then again, how many people died in the name of George Floyd, a criminal who most likely killed because his weak heart couldn’t tolerate the excitement and lethal amounts of drugs in his system? He and all the rioters are heroes of Dennis, who passes in the other direction of those heading to save lives. Who was that man, they say, who runs away? Dennis.

  16. Professor Turley Writes:

    Under one theory, Trump was hiding an affair with a porn actress with the payment of hush money before the election.
    …………………………….

    Turley calls this a ‘theory’..??

    This scenario was pretty well established. We’re not sure what part of this is still in doubt. Nor does Turley explain.

    1. ^^^Idiot too stupid to get what Turley meant. Wants us to explain apparently.

  17. Trump recently said that in the upcoming debate he will be debating 3 people. No, two and a half.

  18. Gigi the pathological liar thinks someone would pay to “attack” her pathetic ass. Leave it to a libtard to claim victimhood on a blog site.

    Like everything else in her reality, she imagines herself a) significant and b) worthy of anything other than disdain.

    1. REGARDING ABOVE:

      This malicious anonymous complaining about Gigi is Floyd Turdrunner Estovir.

      2. REGARDING ABOVE

        I resent you assigning my name to those maga morons, you pathetic twat. We can tell you are a fake, because everyone knows its spelled with a small “t”

        Tom gave me that name, because he owns me.

        Waters apparently owns you, Gigi. Can’t help you there.

        I am turdrunner

        I am turdrunner

        I am turdrunner

        1. REGARDING BELOW

          Any response is from Peter Shill, a pathetic teenager typing in his basement, still in his pajamas, waiting for his mommy to return home from her glory hole gig at the pool hall.

  19. New York is where the Marxists landed after they were kicked out of Europe.

    That communism metastasized to Illinois and beyond. 

    The abject corruption that is communism is the cancer that has permeated and is killing America.

    It must be irradiated, excised, and extirpated. 

    Communism is the antithesis of the Constitution and the Bill of Rights. 

    The Constitution and Bill of Rights must prevail and hold dominion, while communism must be completely eliminated. 

    Communism must be given no quarter.

  20. I remember this magazine as I saw it sitting on a seat on an American Airlines flight from Dallas to DC…….

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