The defense rested yesterday at former President Donald Trump's New York Trial, setting up much wrangling over jury instructions, ahead of next week's expected closing arguments. Trump did not testify on his own behalf, as expected, but neither did an expert witness that Trump's team wanted jurors to hear from. Why didn't they call a man named Bradley Smith to the stand? As we covered a few weeks ago, the Biden donor judge in the case had determined that Smith -- the former chief of the Federal Elections Commission -- would be severely limited in what he'd be allowed to testify about. The heart of the prosecution's case involves Trump allegedly paying a 'hush money' sum to Stormy Daniels over their tryst (which he denies), then mis-categorizing the reimbursements for said payment in a willfully fraudulent way, in order to impact the 2016 presidential election. Smith is an eminent expert on campaign finance law, having run the FEC, which previously reviewed the same set of facts and decided not to even civilly charge Trump (DOJ and Alvin Bragg's predecessor in Manhattan came to the same 'no charges' conclusion on the the criminal side, too).
But as Byron York reported, Judge Merchan decreed that Smith would be severely hamstrung in his ability to bring any of his relevant expertise to bear in order to undermine the DA's theory of the case. For that reason, and perhaps because the judge threatened to hold a separate defense witness in contempt for insubordination on the witness stand on Monday, the Trump team elected not to call Smith after all. What would be the point, they must have figured, if the whole purpose of bringing him as a witness had been preemptively ruled out of bounds by the man presiding over the case? Smith did, however, air his related thoughts on social media after it was determined that he wouldn't testify at the trial. Jurors won't see any of this, even though there's a strong argument that they should be aware of all of it, as it goes to a core element of the novel case Bragg et al are trying to make against the defendant. Read this:
But the Federal Election Campaign Act is very complex. Even Antonin Scalia—a pretty smart guy, even you hate him—once said “this [campaign finance] law is so intricate that I can’t figure it out. /2
— Brad Smith (@CommishSmith) May 20, 2024
/5 Cohen even testified they just wanted to get past the election.
— Brad Smith (@CommishSmith) May 20, 2024
/7 but While judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen!
— Brad Smith (@CommishSmith) May 20, 2024
/10… To repeatedly misstate the law or elicit incorrect statements of law from witnesses (and unlike Cohen’s, my testimony would not have gone to the ultimate legal issue). The judge’s bias is very evident.
— Brad Smith (@CommishSmith) May 20, 2024
Smith went on to call the trial a 'farce,' due to these circumstances, and it's hard to argue with him. York caught up with Smith after he was passed over as a witness, due to the Biden donor judge-imposed restrictions. The resulting piece is entitled, 'what I would have told the Trump jury:'
Trump is charged with falsifying his company’s business records regarding his payment for a legal nondisclosure agreement with the porn actress Stormy Daniels — and doing so with the intention of committing another crime. But prosecutors have never specified what that other crime is. In various court filings, however, prosecutors have suggested they plan to argue that Trump intended, along with the false bookkeeping, to violate a state law that bars promoting a political candidacy “by unlawful means.” That’s the other crime, prosecutors will say, and the “unlawful means” will be a violation of the Federal Election Campaign Act, or FECA, the 1970s-era law that regulates political fundraising and spending in federal elections...Smith was not going to give the jury his views on the specific charge against Trump. He knew the judge would never allow that, and he didn’t intend to try. Instead, had he been allowed, Smith said he wanted the jury to know about the complexity of campaign law...
...the goal of his hoped-for testimony, Smith said, was “to lay out the ways the law has been interpreted in ways that might not be obvious.” ... When it comes to the details of the Trump prosecution, knowing how campaign finance law works has led Smith to believe that what is alleged to be the core violation in the case, that paying Daniels amounted to a campaign contribution or a campaign expenditure, is simply not true. “I can tell you my personal belief is that clearly paying hush money, or paying for a nondisclosure agreement, does not constitute a campaign expense,” Smith said..."My personal belief is that this clearly would not have been a campaign expenditure, never had to be reported, and therefore was not misreported.” Smith stressed again that he did not plan to testify about the specifics of the Trump case. Instead, he hoped to “lay out some of the factual work of the law — how does the law work in practice?” But that’s not going to happen.
It seems crucial to the prosection's chances for the jury to be confused on these matters, then defer to their supposed authority on the legal niceties, which may explain why a valuable opportunity for expert clarification was shot down by the judge. Of course, given everything else that's transpired in court over the last week or so, more than enough reasonable doubt may already exist to result in at least a hung jury and a resulting mistrial, if not an acquittal. Maybe. But it's a New York jury, with a Democratic prosecutor and judge doing everything in their power to secure a political conviction, with little apparent regard for whether it gets overturned on appeal, post-election. On that front, I'll leave you with these conversations:
Former US Attorney @tolmanbrett, who's watched the Trump trial closely, breaks down his perceived chances of various outcomes:
— Guy Benson (@guypbenson) May 21, 2024
Hung jury/mistrial--75%
Conviction--15%
Acquittal--10%
Explanation here: https://t.co/yYwSiKGHSb
As Trump's NY hush money trial is expected to draw to a close in the coming weeks. What kind of consequences could we see if he's convicted?@MZHemingway joined the show today and said "serious" consequences could befall ALL American politicians. 🎧🔽:https://t.co/C97nSgS1kq
— The Guy Benson Show (@GuyBensonShow) May 21, 2024
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