[NEWS] A Deep Dive into Trump’s Trumped-Up Charges

[BrasSmonkey]

Introduction

We’ve all heard that the state of New York convicted Donald Trump of committing 34 felony counts of falsifying business records.

We’ve also heard that the judge presiding over the case had a conflict of interest; that the jury was not sufficiently unbiased; and that some of the Prosecution’s team had worked in President Biden’s Department of Justice and stepped down to prosecute this case.

Surely, we’ve all heard that members of the Prosecution campaigned on “locking-up” Trump, or “getting” Trump; that the Prosecution refused to call the one witness, Weisselberg, who could’ve corroborated Michael Cohen’s testimony that Trump knew his business records were being falsified; that the Court gives advantage to the Prosecution in closing arguments by allowing them to have the last word without rebuttal from the Defense.

And we have definitely heard that this prosecution was based on poor evidence and political motives.

If you haven’t heard that, know that it’s all true—especially the political motivation to discredit Trump. One is immediately reminded of Peruvian dictator, Oscar Benavides, who said:


The palpability of political bias in this case is itself grounds to have this verdict overruled on the basis of selective prosecution. But other various and sundry reasons also give Trump ample cause to appeal this verdict.

In short, this case was so shoddy that it should have been dismissed from the very get-go.

The fact that it was not proves the Prosecution and Court—people who know far more about the law than any of us—were either acting in bad faith or are so ignorant that an ex-teacher who spent thirty minutes reviewing the Constitution was able to tell that this indictment had no legal merit.

So, let’s talk about the facts of the case, the rights of the Defendant, and then discuss why it should have been tossed.
The Facts of the Case

The Prosecution indicted Trump for “falsifying business records in the first degree—34 counts.” (pg. 27)

Falsifying business record in the first degree means that this is a felony. And since there are 34 counts, Trump is charged with committing 34 felonies.

The law this charge pertains to is Penal Law § 175.10: “a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise.” (pg. 27)

So, for this charge to stick, Trump had to have falsified business records with the intent to defraud and with the intent to commit another crime.

To accomplish this, the Prosecution presented the other law Trump is alleged to have broken, New York Election Law section 17-152, which reads: “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

As Judge Napolitano has said, it is the duty of the Prosecution to prove “every element of the crime, beyond a reasonable doubt, to a moral certainty and unanimously by the jury.”

Thus, the charge of “falsifying business records in the first degree” sticks if it can be shown that Trump intended to falsify his business records; and did so with the intent to affect the outcome of an election; and intended to affect the outcome of that election by unlawful means.

Therefore, there is a third element which the Prosecution must prove “beyond a reasonable doubt, to a moral certainty and unanimously by the jury.”

What is this third element? Well, no one knew until closing arguments were given on the last day of the trial, after all the evidence had been presented and after every witness had been called.

The third element upon which the entire case rests is nowhere mentioned in the opening argument of the Prosecution (pg. 41-71) and only appears in their closing argument (pg. 136-358).

Even Trump’s defense attorney, Tony Blanche, said in his closing argument that “I believe that the Government is going to talk about three potential unlawful means that they will claim makes this conspiracy a crime” (pg. 119).

In the Prosecution’s closing, they propose three ways in which Trump could have violated section 17-152 by “unlawful means”:

violations of the Federal Election Campaign Act;
the falsification of other business records; or
violation of tax laws

The prosecution, however, never decided on a single one of these means for any of the 34 counts.

Instead, they tell the jury that so long as they believe that Trump intended to violate any of these, then they are obliged to vote guilty.

If you think this reeks of due process violations and undermines the intent of requiring juries to arrive at a unanimous decision, then you have very good instincts.

The Court (Judge Merchan) then corroborated this in his Jury Instructions when he said:

“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were” (pg. 31, ¶1).

The Prosecution, therefore, is absolved of the responsibility of proving that Trump intended to engage in any one of these unlawful means; and likewise, the jury is absolved of the responsibility of reaching a unanimous decision regarding the facts of the case.

In summary, the Prosecution’s indictment is this:

By listing Trump’s payment to his lawyer Michael Cohen as a “legal expense” rather than a “campaign contribution” Trump has violated NY statute 175.10 and defrauded the public. In doing so, Trump intended to violate another law, NY election law 17-152. Trump is suspected of violating this election law either by violating FECA rules, falsifying other business records, or by violating tax laws.

Now, if you can keep all that straight, here’s what Trump and every other defendant is entitled to in a criminal trial.
The Rights of the Defendant

In the discussion surrounding this case, many people have pointed to the U.S. Constitution and possible violations of the 5th and 6th amendments; i.e., the right to due process and the right to be informed of the nature and cause of the accusation.

While controversial, the following is nevertheless true: the Bill of Rights does not apply to the States and therefore does not apply to Trump because this case is being prosecuted by New York state.[1] Neither does the 14th amendment apply in this case which states that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”[2]

However, given decades and decades of de facto application of the U.S. Bill of Rights in criminal and civil cases at the state level—and decades of SCOTUS case precedent—Trump can petition for appeal on the grounds that these constitutionally-guaranteed rights were infringed upon.

What is unambiguously applicable in this case, however, is the New York constitution.

NY Constitution Art. 1 §6 states the following:

“In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him or her”; and “No person shall be deprived of life, liberty or property without due process of law.”

Therefore, the rights allegedly guaranteed to Trump by the U.S. constitution are still guaranteed by the state of New York. Thus, he is still entitled to all the rights provided for in the U.S. constitution.

As we shall discuss, the following grounds for appeal apply equally to the New York court system and the U.S. appellate court system.
It Should Have Been Tossed
Judicial Prejudice

The basis for an appeal consists of all of the things mentioned in the opening paragraph: it’s plausible the Court (Judge Merchan) had a conflict of interest according to 100.3(E)(1)(a)(i) and 100.3(E)(1)(d)(iii) of the New York Judicial Conduct codes since he is known to have donated to the Democrat party and to the Biden campaign.

His conduct during the trial has also garnered criticism from the likes of Alan Dershowitz. Specifically, the Judge’s threat to strike the testimony of the Defense’s key witness, former Trump lawyer Robert Costello, for “raising his eyebrows at one of…Juan Merchan’s rulings” can be seen as “prejudicial” toward the Defense according to New York §280.10:

“At any time during the trial, the court must declare a mistrial [when]: there occurs during the trial…conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial.”

During that exchange, the Judge took issue with Costello saying “Jeez” in response to a sustained objection by the Prosecution and “Yes. Strike it” to another one of their sustained objections (pg. 252).

COURT: “So, when there is a witness on the stand, if you don’t like my ruling, you don’t say “Jeez,” okay. And then you don’t say “strike it,” because I’m the only one that can strike testimony in the courtroom. Do you understand that?”
COSTELLO: “I understand.”
COURT: “Okay. And then, if you don’t like my ruling, you don’t give me side eye and you don’t roll your eyes. Do you understand that? Do you understand that?”
COSTELLO: “I understand that. I understand what you’re saying.”
COURT: “Okay. Thank you. Let’s get the jury back. Are you staring me down right now?”
COSTELLO: “No. I’m just wondering how—”
COURT: “Clear the courtroom, please.”

The press then objects to being kicked out of the courtroom, saying that it is an open trial and they have a right to remain. The Judge continues:

COURT: “I’m putting you on notice that your conduct is contemptuous. If you try to stare me down one more time, I will remove you from the stand. I will strike his entire testimony; do you understand me?” (this bit of drama can be found on pg. 252-257)

These transcripts could be used retroactively to call into question the impartiality of Judge Merchan. And interestingly, Costello’s comments could be used as grounds to invoke a mistrial in the other direction.

If Costello was deliberately saying “contemptuous” things to cast Trump in a bad light or to provoke a mistrial, it can be argued that his actions undermined Trump’s right to a fair trial (NY §280.10(1)).

However, since the Defense did not make a mistrial motion, their right to do so may have been waived.
The Court’s 1st Degree Conflict of Interest

Merchan’s daughter Loren Merchan’s interest in the outcome of the trial could also be grounds for appeal if Trump’s appellate team argues that Judge Merchan ought to have recused himself.

If Trump’s case is taken up on appeal in New York or by the U.S., Merchan’s failure to recuse himself could invoke a mistrial after the fact, resulting in an overturning of the conviction or the disbarment of Judge Merchan (or of Alvin Bragg, for that matter). Although disbarment is unlikely.

Improper Exclusion of Evidence

The Prosecution’s refusal to call Allen Wiesselberg—the one witness who could have corroborated Cohen’s testimony—is grounds for appeal since Weisselberg’s exclusion as a witness could be seen as an “improper exclusion of evidence”.

Weisselberg is said to have been witness to the crucial meeting whereby Trump is alleged to have directed Weisselberg on how to classify Cohen’s invoice, and where he is said to have known that he was violating the law.

Improper Inclusion of Evidence

There is also the issue of “improper inclusion of evidence.” Stormy Daniels, the recipient of the so-called “hush money” was called as a witness by the Prosecution. But as she had no knowledge of the particulars surrounding Trump’s intent to defraud or Trump’s intent to violate some other law, her testimony can be seen as irrelevant.

Many have commented that the purpose of her testimony was simply to “smear” the character of Trump. Given her testimony and lack of knowledge regarding the allegations, this objection seems credible. The content of her testimony was seen as so salacious that the Defense made two motions for a mistrial—both of which were denied by the Court.
Accountability of the Accused

Then there is the issue of accountability: Jeff McConney testified that he instructed Deb Tarasoff to list the payment to Cohen as a legal expense (pg. 76). He also testified that he never spoke with Trump about any of the accounting decisions made in 2016, 2017 or 2018 (pg. 131).

Ms. Tarasoff, who handled accounts payable at the Trump Organization, then testified that she never received any instructions from Trump on how to invoice checks; that she was told to invoice checks by McConney and Weisselberg (pg. 243-244).

So how can Trump be held accountable for how Tarasoff and McConney chose to record expenses when neither of them testified that Trump instructed them on how to record them in the accounting ledger?

These claims are the legs on which the entire indictment stands.

But, since Cohen’s testimony is uncorroborated by Weisselberg who the Prosecution refused to call because he is in prison—despite the fact that Prosecutors regularly call witnesses serving jailtime and despite the fact that only the Prosecution can offer witnesses immunity—and since Cohen is known to be a three-time perjurer who admitted that he wanted Trump convicted, his testimony, on its own, can easily be argued as unreliable and inadmissible on appeal.

Another instance of “improper exclusion” of evidence is the fact that the Court severely limited the testimony that a potential expert witness was allowed to give with respect to the alleged charge of Federal Election Campaign Act (FECA) violations.

The Prosecution claimed as a matter of fact that the accounting decision to list the payment for Stormy Daniels’s non-disclosure agreement as a “legal expense”, rather than a “campaign expense”, violated FECA rules.

Yet Bradley Smith, former FEC commissioner, was prepared to testify that the way in which Trump’s payment to Daniels was declared was not a violation of the act. The Defense ultimately decided not to call Smith as a witness since the testimony he was allowed to give was so limited by the Court.

Smith has been vocal on X regarding the alleged FECA violations and has repeatedly said that Trump did not violate FECA.

the shit goes on.... read more...
https://www.maciverinstitute.com/2024/0 ... p-charges/