Shortly after dozens of felony charges were rolled out against former President Donald Trump by the Democratic District Attorney in Manhattan a little over a year ago, I reviewed the case and concluded, "the indictment reeks." At the time, my initial impression boiled down to this: "[The case] is widely and rightly seen as a profoundly feeble case, with even the New York Times conceding that the legal theory behind it rests on a novel, 'untested,' and 'risky' bank shot, requiring a convoluted effort to upgrade a possible misdemeanor into a low-level felony -- all spearheaded by a partisan ideologue who's notorious for downgrading criminal charges. Given the reality that the feds looked at this exact same set of facts and declined to pursue charges, even as they're coming after Trump from other angles, says it all." I continued, "this is a deep blue city prosecutor weaponizing the law against a prominent member of the opposing party. It's an abuse of office. A former president has never been indicted in this country. This is very much not the way to make that history." Flash forward to last week, and I added additional commentary about how the trial is going:
Bragg's predecessor in the DA's office looked at these exact same facts and declined to pursue charges. The feds did the same. But hardcore partisan Alvin Bragg has decided run an experimental prosecution rooted in a novel approach, in the middle of an election cycle, against a leading candidate and former president, by chasing an episode that transpired two election cycles ago. The Biden donor judge agreed with the Democratic prosecutors...that the sordid details of Trump's sexual liaisons with porn star Stormy Daniels were pertinent and probative to the case -- even though there is no dispute that Trump paid Daniels in exchange for her silence. The 'crime' doesn't involve the alleged affair or the existence of the payment, neither of which violated the law. It involves the way Trump and his lawyer listed the payment in documents. Nevertheless, the jury was treated to salacious specifics about sexual positions, etc. during Daniels' testimony. By contrast, the Biden donor judge will not allow a key defense witness to offer what seems to be highly relevant testimony that would refute an element at the heart of the prosecution's case.
Let's set aside the important fact that the previous Manhattan DA, and the FEC, and the DOJ all reviewed this exact same set of facts and chose not to launch any prosecution of Trump, civil or criminal. Let's also set aside the fact that the judge presiding over the case is a Biden donor whose daughter is actively raising millions for anti-Trump Democrats. Let's ignore, for the moment, that one of Alvin Bragg's top prosecutors trying this case -- who was paid $12,000 by the DNC for political consulting during the Trump adminsitration years -- took the unthinkable step of leaving his perch as the third-highest-ranking official in Joe Biden's Justice Department in order to join a local prosecutor's office and try to put Trump behind bars. Leaving aside all of that, as well as the fertile ground for appeal on multiple fronts according to many legal experts, the question of the moment must be: How is the case brought by Bragg and company faring in court?
Remember, in order to resuscitate a possible misdemeanor with a statue of limitations that lapsed years ago, and to transform it into numerous felony counts, Bragg is trying to convince a jury that Trump personally conspired to engage in a wrongful bookkeeping categorization of hush money reimbursements, with fraudulent intent, in furtherance of another crime. Bragg has not specified what that other crime is, and has argued that he doesn't have to. Amazingly, the Biden donor judge has agreed and permitted this insane legal expedition to proceed. An absolutely essential element of establishing these supposed 'felonies' (as opposed to proving that Trump is a shady guy) is to prove that Trump was personally involved in the alleged conspiracy, with a willful intent to defraud, for the purposes of influencing the 2016 election. The prosecution's central cog in attempting to do this is Michael Cohen, Trump's longtime lawyer and 'fixer.' Cohen is also a convicted felon, a confirmed perjurer, and an inveterate liar. Cohen, whose credibility is already extremely weak for all sorts of reasons, has claimed that he personally witnessed Trump's involvement to this effect.
But in a dramatic turn of events yesterday, Cohen's cross-examination by a member of Trump's defense team appeared to shred -- or at least cast heaps of reasonable doubt upon -- Cohen's story about this essential link in the chain. After emerging from the courtroom last evening (the trial has been adjourned until next week), Trump took the unusual step of positively citing some CNN analysis of what had just transpired. It's not hard to see why he'd want to highlight these analyses of the day's developments. My goodness:
CNN’s Cooper: “Cohen was cornered in what appeared to be a lie…and had to adjust suddenly his memory that he had just testified to on Tuesday.” He called the cross examination “devastating” to Cohen’s credibility and story, upon which the whole, dubious prosecution hinges: https://t.co/PmnFdnZd5a
— Guy Benson (@guypbenson) May 16, 2024
Anderson Cooper says he would "absolutely" doubt Michael Cohen as a juror after "extraordinary" cross-examination.https://t.co/YmJLOyC8ST pic.twitter.com/LOd4XkRKLA
— Zachary Leeman (@WritingLeeman) May 16, 2024
Elie Honig: I don’t think I’ve ever seen a star cooperating witness get his knees chopped out quite as clearly and dramatically as what just happened with Michael Cohen. pic.twitter.com/QfeIMSi6YB
— Julie (@millennialergy) May 16, 2024
The deeply-flawed Cohen is the crucial witness in this case for the prosecution. And the defense just chewed up an important component of the story he's told to try to sink his former boss. The jury is composed of residents of a very anti-Trump jurisdiction, so who knows how they're processing all of this. But even if they've been willing to go along with Bragg's widely-panned theory of the case up until this point, getting from an arguably false bookkeeping categorization to multiple felonies requires, in large part, believing Michael Cohen. Any fair-minded person's ability to do so sustained a high-profile body blow in court yesterday. If CNN personalities with absolutely no love lost for Trump watched what went down and described it the way they did in the clips above, one wonders how jurors might have internalized what Anderson Cooper flagged as a pretty obvious new lie by Cohen, exposed by the defense. I'll leave you with longtime federal prosecutor and conservative Trump critic Andy McCarthy arguing persuasively for acquittal:
Trump ought to be acquitted for the simplest of reasons: Prosecutors can’t prove their case — neither the case the grand jury actually charged, 34 counts of felony business-records falsification, nor the case that elected progressive Democratic district attorney Alvin Bragg has imagined into existence, an uncharged conspiracy to steal the 2016 election by suppressing politically damaging information in violation of federal campaign-finance law...the FEC — a federal agency that actually has jurisdiction to enforce the campaign laws and expertise in applying them — investigated Trump and decided not to proceed against him. Why is that important? Because the FEC is in charge of civil enforcement. The civil burden of proof of a violation is a mere preponderance of the evidence, a significant step down from the burden on prosecutors to prove criminal offenses beyond a reasonable doubt. If the FEC concluded that it could not prevail against Trump on a civil-law standard, it is absurd to think he could be proved guilty on the daunting criminal-law standard. No doubt that is why Trump was not indicted by the Justice Department — which, like the FEC but unlike Bragg, has expertise and enforcement responsibility in federal campaign law.
Finally, the feds didn’t charge Trump because, as a matter of law, NDA payments are not campaign expenditures...If there is profound legal doubt that an NDA payment is a campaign expenditure — and it is more than just doubt in this case — then Trump can’t possibly have acted willfully by not treating reimbursement for the Stormy NDA as a campaign expenditure. To sum up, Bragg’s proof of falsity is paltry. His proof of fraud is non-existent. And if he had a scintilla of proof that Trump was even thinking about federal campaign law, let alone willfully flouting it, then he would have spelled it out in an indictment rather than playing his unconstitutional game of “guess what the other crime is.” Wholly independent of the plethora of constitutional infirmities in the prosecution, it should be thrown out for the most basic of reasons: Bragg can’t prove his case.
Acquittal would be the most appropriate and just outcome here. But even if the full jury can't reach a consensus to let Trump off without some sort of conviction -- for whatever reason -- it only takes one dissenting juror to hang the process and produce a mistrial. We'll see if this case is summed up and handed to the jury for deliberations next week.
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