Bragg's thrill kill in Manhattan could prove short-lived on appeal
By: Jonathan Turley, Opinion Contributor (The Hill)
Yes, the New York show trial against Donald Trump was politically motivated and rigged from the beginning. The legal justifications for the trial were even more convoluted than those for the Roe v. Wade decision. Bragg, Biden, Democrats, and the unbiased liberal press are trying to scapegoat the jury to protect the kangaroo court. But that's a red herring. The blame for running a kangaroo court falls squarely on the shoulders of the New York judiciary.
There is little chance that a NY appellate court will overturn the convictions before the election. And it is quite possible that the New York appellate courts will rally to the defense of the Merchan court. So, this may eventually be dumped in the lap of SCOTUS. And that ruling could very well be delivered during the next Presidential term.
Now Biden and Democrats must tiptoe through a mine field. A Trump appeal will cause a firestorm questioning the legitimacy a Biden 2nd term should Biden win reelection. And if Trump wins on appeal then there will a victory celebration like no other, no matter who prevails in the November election. Democrats are going to have to pay a huge political price to defend Trump's convictions in a New York kangaroo court. And the odds really do favor Trump.
S E E D E D C O N T E N T
The conviction of former President Donald Trump in Manhattan of 34 felonies produced citywide celebrations. This thrill-kill environment extended to the media, where former U.S. Attorney Harry Litman told MSNBC's Nicolle Wallace that it was "majestic day" and "a day to celebrate." When I left the courthouse after watching the verdict come in, I was floored by the celebrations outside by both the public and some of the media.
The celebrants would be wise to think twice before mounting this trophy kill on the political wall. The Trump trial is a target-rich environment for an appeal, with multiple layers of reversible error, in my view.
I am less convinced by suggestions that the case could be challenged on the inability of Trump receiving a fair trial in a district that voted roughly 90 percent against him. The problem was not the jury, but the prosecutors and the judge.
Some of the most compelling problems can be divided into four groups.
The Judge
Acting Supreme Court justice Juan Merchan was handpicked for this case rather than randomly selected. This is only the latest in a litany of Trump cases where Merchan has meted out tough rulings against Trump and his organization. With any other defendant, there would likely be outrage over his selection. Merchan donated to President Biden. Even though the state bar cleared that violation based on the small size of the contribution, it later stressed that no such contributions were appropriate for a judge. We learned later that Merchan has contributed to a group to stop the GOP and Trump. Merchan's daughter is also a Democratic organizer who has helped raise millions against Trump and the GOP and for the Democrats.
To his credit, CNN legal analyst Elie Honig has previously said that this case was legally dubious, uniquely targeted Trump and could not succeed outside of an anti-Trump district. On the judge, he recently challenged critics on the fairness of assigning a Biden donor who has earmarked donations for "resisting the Republican Party and Donald Trump's radical right-wing legacy." He asked "Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to "Re-elect Donald Trump, MAGA forever!"? "Absolutely not."
What is equally disturbing is the failure of Merchan to protect the rights of the defendant and what even critics admit were distinctly pro-prosecution rulings in the trial. It is not just the appearance of a conflict with Judge Merchan but a record of highly biased decisions. In watching Merchan in the courtroom, I was shocked by his rulings as at times incomprehensible and conflicted.
The Charges
A leading threshold issue will be the decision to allow Manhattan District Attorney Alvin Bragg to effectively try Trump for violations of federal law. The Justice Department declined any criminal charges against Trump under federal election law over the alleged "hush money" payments. The Federal Election Commission likewise found no basis for a civil fine. With no federal prosecution, Bragg decided to use an unprecedented criminal theory not only to zap a dead misdemeanor into life (after the expiration of the statute of limitation) but to allow him to try violations of not only federal election law but also federal taxation violations. In other words, the Justice Department would not prosecute federal violations, so Bragg effectively did it in state court.
Even when closing arguments were given, analysts on various networks admitted that they were unclear about what Bragg was alleging. The indictment claimed a violation under New York's election law 17-152 that the falsification of business records were committed to further another crime as an unlawful means to influence the election. However, in a maddeningly circular theory, that other crime could be the falsification of business records. It could also be violations of federal election and taxation laws, which Trump was never charged with, let alone convicted of.
The Evidence
Judge Merchan allowed a torrent of immaterial and prejudicial evidence to be introduced into the trial by the prosecution. That included testimony from porn actress Stormy Daniels that went into details about having sex with Trump. She included a clear suggestion that Trump raped her. After this utterly disgraceful testimony, Merchan expressed regret but actually blamed the defense counsel, despite their prior objections to the testimony. He had previously chastised counsel for making continued objections, but now he criticized them for not continuing to make objections.
Merchan was equally conflicted in his other orders. For example, he allowed the prosecutors to introduce the plea agreement of Michael Cohen to federal election violations as well as the non-prosecution agreement of David Pecker on such violations. However, it was allowed only for the purposes of credibility and context. He issued an instruction that the jury could not consider the plea or the agreement to establish or impute the guilt of Trump.
The prosecutors then proceeded to expressly state that it was "a fact" that federal election violations occurred in this case and that Trump ordered those violations. They also solicited such statements from witnesses like Cohen. Merchan overruled the objections that the prosecutors were eviscerating his instruction. Merchan also barred the use of a legal expert, former FEC Chair Brad Smith, who was prepared to testify that such payments cannot be viewed as federal election violations and would not affect the election even if they were considered contributions, since they would not even have had to be reported until after the election.
Merchan is likely to be upheld in denying the expert, since the court retains the authority to state what the law is to the jury. The problem is that Merchan failed to do so. Worse still, he allowed the jury to hear the opposite in the repeated false claim that these payments were campaign contributions.
The Instructions
Even with all of the reversible errors, some of us held out hope that there might be a hung jury. That hope was largely smashed by Merchan in his instructions to the jury. The court largely used standard instructions in a case that was anything but standard. However, the instruction also allowed for doubt as to what the jury would ultimately find. When the verdict came in, we were still unsure what Trump was convicted of.
Merchan allowed the jury to find that the secondary offense was any of the three vaguely defined options. Even on the jury form, they did not have to specify which of the crimes were found. Under Merchan's instruction, the jury could have split 4-4-4 on what occurred in the case. They could have seen a conspiracy to conceal a federal election violation, falsification of business records or taxation violations. We will never know. Worse yet, Trump will never know.
The Supreme Court has repeatedly emphasized that the requirement of unanimity in criminal convictions is sacrosanct in our system. While there was unanimity that the business records were falsified to hide or further a second crime, there was no express finding of what that crime may have been. In some ways, Trump may have been fortunate by Merchan's cavalier approach. Given that the jury convicted Trump across the board, they might have found all of three secondary crimes. The verdict form never asked for such specificity.
These are just a few of the appellate issues. There are other challenges, including but not limited to due process violations on the lack of specificity in the indictment, vagueness of the underlying state law and the lack of evidentiary foundation for key defenses like "the legitimate press function." They are the reason why many of us view this case is likely to be reversed in either the state or federal systems. None of that is likely to dampen the thrill in this kill in Manhattan.
But if Biden wins the election before this conviction is overturned, history's judgment will be deafening.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
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The thrill of convicting Trump will be short lived simply because Donald Trump ain't the biggest problem for Democrats.
Since when is Juan Merchan a "acting Supreme Court justice"? Except in his own mind maybe.
What do you mean?
Each state has it's own Supreme Court justice system
There are some here who see nothing wrong with it.
That appears to be coming from the 'a win is a win' crowd. But now we know the thrill seekers didn't have a plan. Biden is having to campaign against himself now. And Democrats can't blame Trump for that although they'll try.
They seem to expect this "win" to be what is going to secure Traitor Joe in office. Their win stand a very good chance of being overturned in the appeals process.
They also seem to expect everybody to forget they are running an absolute failure as a candidate.
The fact that Merchan, Bragg, and Matthew Colangelo aren't in front of the Bar begging for their law licenses not to be revoked is a travesty.
Democrats will allow them to stay in their positions and will push them to be rewarded politically. Especially Colangelo, who will be bucking for AG if Biden wins reelection.
The damage done to the legal system by Democrats is irreparable.
It's because trump is guilty. Sorry!
Have you come up with the law that shows New York has the right to prosecute Federal Law at the state level?
I already provided proof that the FEC has complete authority over charging campaign violations- and they chose not to prosecute; as the NDA isn't a campaign contribution- no matter how Bragg and Democrats want to twist it.
The only reason Trump was found guilty is we have a two tier kangaroo justice system. Where a partisan judge, prosecutors, and jury held sway.
NY didn't prosecute a federal law, nor did the jury find Trump guilty of federal law. Repeating it over and over won't make it true.
Um, he violated STATE LAW.
How many times do you need to be told this?
True, trump violated the gag order 12 times, that's 30 days in jail per-offense.. How many days did he do? ZERO. The judge was way to lenient. Trump should be in jail pending sentencing.
By what law?
That's a very disingenuous summary of what Bragg did. Bragg (actually a DOJ lawyer on loan ) told the jury they could find Trump guilty of a misdemeanor state conspiracy law if they believed he violated federal campaign law and he let the prosecution witnesses testify over and over that they had violated federal law.
Every state and territory in the union recognizes a judge's right to punish someone for contempt of court.
OK I agree with that, however, Frost specifically said 30 days in jail per charge. I asked what law specifically states that?
NY State Law 750 and 751
New York Judiciary Law Section 751 – Punishment for criminal contempts (public.law)
It's OK, I really didn't expect a thank you. /s
It will be short lived on appeal. If it isn't, our justice system is truly fucked
I hope you are correct; but Democrats aren't going to be so eager to give up their illegally won prize.
So long as the appeals are in New York, or any state that is controlled by Democrats, there is a greater chance of it standing.
Bragg and Democrats rushed these charges/indictment to make sure they came before the elections- they will now let the Democrat system slow walk the appeals process until after the election.
Brandon may even pardon Trump if he wins reelection to try and defang the process; which will taint it even more.
I am a pessimist. Democrats know what they can get away with now. They won't hesitate to pull the same BS against anyone else that defies them.
That is hilarious. How many times did right wingers on here bitch and moan that the prosecutors waited years to bring charges? Incessantly.
That's not true, of course. It was on his predecessor to bring charges I believe, and it was also his predecessor I believe who said that Mr. Bragg was actually slow to bring charges against the obviously guilty former 'president'.
It's Bizarro World.
Even more hilarious is the amount of times Democrats have delayed or dropped charges against real criminals. Like with Bill, Hillary, Obama, Brandon, and Hunter.
Seems the only time they are concerned about speedy trails is when they are going after their political opponents; and election season is coming up.
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Your comment is certifiably insane.
Right wingers obviously don't recognize the Bizarro World they inhabit.
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Naw, it's fine...trump is just guilty. Never ceases to amaze me; "it has to be SOMETHING....ANYTHING!!!!!!! But not trump is actually guilty.
it truly is a cult.
You must be easily amazed.
Even more so since you refuse to admit that Democrats ran that trial from top to bottom. There was nothing "impartial" about it.
There was at least one trump supporter on the jury, even they voted guilty... get over it. He's a fucking criminal.
You keep saying that and have offered no proof of it.
lol, I’ve seen MrFrost post it at least twice already. Newsflash - if your only sources of news are truth social and X, you are a Trump supporter.
Lol. . I hate to break it to you, but X, in particular, is filled with very left wing new sources.
Per this logic, Since I get news from left wing sources and not Truth Social, that must mean I'm a biden supporter.
Where's the actual proof that any juror was a Trump supporter?
And what other left wing source did this individual read? None. Just Trump’s diarrhea of the mouth website and clearly the most right wing garbage in X.
X is full of left wing sources and anyone get their fill of leftism on the site.
You are actually arguing that the only way a progressive can support Biden is if they limit themselves to far left sources. That progressives are so weak minded that if they were to read Truth Social they'd turn into Trump supporters.
Man, while I thought many progressives were close minded, I assumed some of them actually sought out competing sources for other perspectives. Guess not. They have to stay in the bubble or they become converted i guess.
Our justice system is truly fucked if this is 'short lived on appeal'. No reason why this should be overturned. It is guilty as sin on 34 counts. THE FORMER 'PRESIDENT IS A CONVICTED FELON
Such poor, sore losers I have never seen in my lifetime.
You miss the heads exploding (including the media talking heads) when Trump beat Hildabeast in 2016
Sky screaming, safe spaces, rioting and throwing their urine on people …. Good times.
Wasn't that the election that kicked off investigations by the poor, sore losers for the following 8 years into lies and hoaxes that all turned up NOTHING?
It was actually Putin and his propaganda machine who beat Hillary.
Hillary won the popular vote. The only one that should count.
The electoral college should be abolished.
I didn't think anyone was still trying to sell that.
Yep. That would be the one
I have to agree with you on all you say here.
Comey also did not help.
Just the facts mam.
Hillary beat Trump by 2.9 million votes.
Putin feared and hated Hillary and loved/owned Trump.
There is no reason for an electoral college in the modern world.
Yes she did, too bad it doesn't mean squat
He does/did not own Trump. He sure wasn't afraid of MRS reset button. He probably hated her, a feeling shared by millions. Did you also know he would rather see Biden as President over Trump? He must own Biden
Opinion, not the facts mam
See 4.1.8
Still crying over that? Doesn't mean a goddamn thing for the Presidential Election.
Still running with fiction too.
Don't run your opinion as fact.
Speaking of Jan. 6th... Wasn't it rioters that pissed and shit on the floors of the US Capital building?
Why yes, yes it was.
Who was speaking of Jan 6th? Not me but that said, was that bad? Because it was done uncountable times by my friends on the left during their extended hissy fit post 2016.
Asking for a friend.
It will and when it happens our friends on the left will whine like they have never whined before. And considering the last seven years, THAT is saying something.
One excuse after another, but, it just can't be that trump is guilty... Amazing.. LOL
I was amused to see Turley use this as contributing to Merchan's "prejudice". I wonder if he would use the same argurment concerning the wives of Justices Thomas and Alito concerning their refusal to recuse themelves.
I wonder if Thomas and Alito have donated to Republican candidates and PACs?
I wonder if their wives have benefited financially from their husbands positions?
Since both Thomas and Alito are already on the Supreme Court (the highest court in the land) they have nothing to gain for strictly partisan rulings.
Merchan sure as hell donated to Brandon and an anti Republican PAC. Merchan has bigger aspirations than being a New York judge. Think Brandon won't tap him for a federal judgeship if he wins reelection? Merchan's daughter's company sure as hell has profited from his involvement in the case. Getting paid to fund raise for Democrats off of the case.[✘]
My comment had to do with a comparative situation, yours didn't. As well, mine spoke of a situation in America, which is the topic, and yours threw China into it, which has nothing to do with the topic. So as far as I'm concerned your comment hasn't negated what I said.
It hasn't Buzz.
Nice photo shop. Now back it up.
ven when closing arguments were given, analysts on various networks admitted that they were unclear about what Bragg was alleging
And continued for days after the verdict.. The first President to ever be charged with a crime was convicted of one lawyers and people passionately invested in the case couldn't explain.
with the help of a copplicit Judge, Bragg constructed a truly novel theory that turned two misdemeanors (one of which has never been charged against anyone else) whose statute of limitations had expired into 34 felonies based on a single bookkeeping error.
Once the case wasn't thrown out for the deficient indictment that didn't specify the second crime and put Trump on notice, it was clear the fix was in with the Judge. The verdict, in Manhattan, was always inevitable.
What is being missed by the hard core left is not so much that Trump was guilty, but the extreme and questionable methods used by Bragg and Mechan to make sure they obtained a guilty verdict at all costs. In their minds, to them the end truly did justify any means.
Welcome to American Jurisprudence.
Trump was guilty and a jury found him so.
Trump has been a scam artist/criminal his whole life.
About damn time he started paying for a life of crime.
Will you post the same if the appeal is successful and the guilty verdict is thrown out?
"Trump was guilty and a jury found him so."
Will you admit that the verdict was wrong and he really is innocent if the appeal is successful?
What will you admit to if the appeal is unsuccessful?
Of course not!
Bunch of sore losers can't stand that their loser hero lost bigly again and has been a lifelong thug/grifter/swindler/thief/mobbosswannabee/rapist/loser
Sorest bunch of fucking losers in the world
Hunter Biden is innocent of all charges.
Whether you and others like it or not, Trump has every right to appeal his conviction under the law of the land. That also falls under American Jurisprudence.
Bullshit.
When was the last time you filled out an ATF firearms transaction form?