One essential ping on the Trump trial(s)

J.E. Dyer | Optimistic Conservative | May 30, 2024

Not under command.

UPDATE:  I composed this Wednesday evening and am going to simply post it now, as is, after the absurd verdict  just reported out from the jury in New York.  The “conviction” on misdemeanors attested to by Michael Cohen, of all unreliable witnesses, and that are past their statute of limitations toll, as well as a fake state “crime” that is also past the toll and can’t even be defined in the language of an actual statute, but instead is predicated on an implied federal campaign violation that the feds declined to call a violation – this is a vicious beclowning of the American judicial system.  Pray for our country.

The jury is deliberating now in Trump’s New York trial over a series of alleged misdemeanors having to do with bookkeeping for campaign funding – a transparently absurd basis for prosecution, as the accusation is that Trump didn’t count hush-money payments as campaign donations – and a felony-to-be-named-later.  The alleged felony, never articulated in the charging documents until just before the end of the prosecution and defense presentations, turned out to be a “scheme” to tamper with the election by not counting the hush-money payments as campaign donations.

The whole thing is farcical.  The Federal Election Commission actually looked at the hush-money payments years ago and declined to do anything with them.  The FEC didn’t find a crime in the Trump campaign’s choice to not count the hush-money payments as campaign donations.

Moreover, the idea that it’s interfering with an election to pay people for silence on non-crimes has no standing in U.S. law.  At any rate, Manhattan District Attorney Alvin Bragg’s tortured case is that, although there’s no underlying crime, and it’s perfectly legal to pay Stormy Daniels and another woman (a Playboy model) to shut up, failing to register hush-money as a campaign donation deprives voters of information they need for the election.

The implication seems to be that a candidate should defeat the purpose of hush-money by declaring hush-money as a campaign donation, so that it will be inspectable by political opponents and media.

There is no New York law dictating such a requirement.  Attorneys have been pointing that out for months.  There’s no there there.  None of the charges is even still within the statute of limitations time limit.

It’s a wailing klaxon to us, or it should be, that to keep the trial going, Judge Juan Merchan has bent or ignored one rule of jurisprudence after another.  A recent example was his effective exclusion last week of a defense witness whose expert testimony would have clarified that it’s not a crime to refrain from registering your hush-money payments with campaign-finance agencies.

This week, in instructing the jury for deliberation, Merchan apparently told jurors they don’t have to have unanimity on all the elements of a charge to find Trump guilty on that charge.  Attorneys are again pointing out in news commentary and on social media that that’s just false.

…Merchan just delivered the coup de grace instruction. He said that there is no need to agree on what occurred. They can disagree on what the crime was among the three choices.  Thus, this means that they could split 4-4-4 and he will still treat them as unanimous…

— Jonathan Turley (@JonathanTurley) May 29, 2024

Legal experts believe Trump has excellent grounds for instant appeal of any guilty verdict, especially given the violations to date of his constitutional rights (in the case of the long-mysterious felony charge, his Sixth Amendment right to know all the charges brought against him).

There’s only so far the jaw can drop.  We’d be here all day if I tried to outline every abuse inflicted or tolerated by Judge Merchan.  And I haven’t even been following the trial closely: I’m going by commentary from experts I trust like Andrew McCarthy, Alan Dershowitz, and Jonathan Turley (none of whom is remotely “MAGA”).

That’s what it has been taking to keep just one trial in the ring, still fighting to lay a glove on Trump.

A slam-dunk basis for appeal is something we can hope will produce the right result in the end.  But it’s clearly political harassment through misuse of the judicial system, to persecute Trump with such an ill-founded, dishonestly-conducted trial, especially during an election season in which he is a candidate.

Now, it’s understandable that some people can’t work up a lot of outrage over abuse of the law in the case of hush-money payments for encounters with strippers.  I don’t think much of those people’s intellectual integrity or judgment, but the emotional response is understandable.  The law is being violated and abused, sure – to ensnare Trump for sleazy acts (assuming we take everything at face value).

And if the law were being used above-board, with prosecutorial and judicial honesty, that’s pretty much how I would feel about the matter.

But it’s not.  This isn’t above-board or honest. And that’s the crux of this ping on the topic of Trump’s trials.

He’s also facing federal trials over the documents of Mar-a-Lago (in which the Florida federal judge seems to be treating the Justice Department’s prosecution with commendable rigor and skepticism), and the 2020 election in Georgia (the trial in which the prosecution has had all its dirty laundry – mainly a lot of underwear and questionable money transactions – exposed, while the gist of the case against Trump is in a phone call everyone in America has already heard, and no one with legal expertise thinks is proof of an offense).

In a case in the U.S. District Court of D.C., Trump is accused of conspiring to subvert the 2020 election outcome ahead of the electoral vote in Congress on 6 January 2021.  That case is on hold pending a Supreme Court ruling on a Trump immunity claim expected sometime in June.

In that trial, too, the “evidence” is invariably presented by the media in biased language.  There is ample evidence that Trump and others – including U.S. Senators and legislators in at least six states – questioned the electoral outcome in light of the widespread reporting of irregularities in the vote.  Senator Ted Cruz had a vote ready to bring to the Senate floor on 6 January, seeking to send the disputed results back to the states where legislatures had registered a dispute and require responses before 20 January to allow action in time for the inauguration.

Trump wanted Vice President Pence to decline to certify the electoral vote – an unusual but by no means illegal proposal.  The Vice President’s authority to do that is disputed; I myself would be inclined to not see the Constitution as conferring that authority on him, but it’s not illegal to see it another way.  Those trying to get another look at the 2020 vote were using the means available to them in law, not seeking to circumvent it.

The American people are being railroaded to call it “subversion” to dispute an election – though we can confidently expect that if Trump gets a narrow win in November 2024, Democrats will dispute that result using measures identical to those pursued by Trump in 2020.  An emotional and entirely impressionistic view connects the alleged “subversion” effort to the 6 January Capitol riot, which could taint the outcome of the trial assuming it proceeds after the immunity ruling.  The same political emotion is virtually certain to taint the trial proceedings, as we’ve seen in New York.

There is no evidence that anything Trump did constituted involvement with the riot.  Such evidence was certain to be found, if it existed, in the post-presidency impeachment effort in 2021, and the House J6 committee inquiry, both of which had extensive input from the FBI.  But no such evidence apparently exists.

On the other hand, a Trump defense in the trial in federal court would be bound to present evidence of the converse case:  that the 2020 election was in fact interfered with, and that other federal government actors were involved in interfering with the election (e.g., the agencies that rigorously suppressed information on social media in 2020, as researched by Matt Taibbi and others), and comported themselves inexplicably and irresponsibly on and before 6 January.  (E.g., Nancy Pelosi refusing National Guard support offered prior to the 6th; the FBI and other law enforcement agencies having more than three dozen confidential informants and embedded agents in the alleged Proud Boys plot for 6 January – a fact in evidence in federal court – and yet for some reason letting the plot develop and be put into action.)

Should the Trump defense propose to have such evidence examined, we can expect federal D.C. Judge Tanya Chutkin to work as hard to exclude or talk over it as Judge Merchan has done in the New York state court. Trump won’t get a fair trial in the “J6” case either; even taking an unsanctioned view of the underlying matter – the 2020 election – is being criminalized without regard to facts or people’s constitutional rights.

All of this sounds like a lot of counts and legal trouble to hold against Trump.  The problem is that it only sounds that way.  Every inch of “progress” in the cases in court has been attended by astonishment at how false is the whole package of allegations, and even more astonishment at the misconduct engaged in by the prosecutors, and its bemusing, jaw-dropping exposure as time goes by.

It is 100% fair to characterize what’s happening as political persecution in kangaroo courts (I exempt the federal judge in Florida from that criticism, but the federal prosecution’s behavior has been execrable).  We need this ping to reorient ourselves to the salient fact that this ridiculous set of trials is the fight for America’s future:  for whether we can keep our republic, and what our nation will be going forward.

It’s clothed in farce, hyper-reactions (positive and negative) to a personality, and enough muddled detail to ensure that few really see clearly how thoroughly corrupt the processes are.  It’s hard for some to take seriously, and for others to understand.  Most people who support Trump against the onslaught are just going by their accurate sense that he’s being hounded for political reasons, as if Biden were the president of a banana republic, abusing every branch of the federal government to go tooth and nail against a political opponent.

The point to take away from this ping is that this is important.  In a rising tide of emergencies, it’s the most important thing happening in American public affairs today.  Trump talks about it a lot in his rally speeches, from what I can tell, and he certainly “Truths” about it at Truth Social a lot.  The media mock him for that, and going by social media complaints, even many of his well-wishers get tired of hearing him talk about it.

But his fight is the fight for what will become of all of us.  If Trump can be sidelined (or worse) by abuse of the legal system, everyone else can be as well.  There will be no place for the political opponents of those who gain power to live in peace, holding their opposite views unmolested and planning lawful political opposition openly and honestly.

Going by his recent speech in the Bronx, Trump does talk about other campaign issues as well.  He’s not stuck solely on his legal travails.  But it shouldn’t bore or offend anyone to hear about them, and there’s nothing obsessive about paying at least some attention to them.  In fact, paying attention to them is merely adequate civic responsibility for grown-up citizens.

The chaos at our borders, the growing chaos of crime and lax enforcement in our cities, the problem of inflation biting deeper and harder with each passing month:  these are urgent domestic issues.  Election integrity is a priority for alarm and action.  Sorting out conundrums like the bad-government responses from the COVID-19 episode, and what the U.S. is doing in Ukraine and Israel, or about Iran and China, versus what we should be doing:  these and other concerns demand attention as well.

But the central drama that will determine whether we have a republic left to defend by this time in 2025 is the Trump trials.  Those trials are an effort to weaponize government against the political candidate preferred by tens of millions of Americans, and take him down without proving he’s actually done anything – anything at all – that’s illegal.  If they succeed, our republic is done for.