Alvin Bragg’s Trump prosecution will lead to a hung jury

Abstract artist Jackson Pollock once said that his paintings have no objective meaning, and so the best way for people to enjoy them is to stop looking for meaning.

For many of us, Manhattan District Attorney Alvin Bragg has created a new school of abstract law that requires no objective meaning: jurors are supposed to simply enjoy it for what it is: a chance to convict Donald Trump.

Pollock was famous for painting droplets on his large canvases.Bragg achieved the same effect by reinstating a defunct misdemeanor of falsifying business records as 34 felonies.To achieve this extraordinary end, he claims that the document violations (which had long ago expired due to the statute of limitations) were committed to conceal other crimes.

Bragg initially referred vaguely to four crimes, but there has been confusion for months about what his specific criminal theory is, and as closing arguments head into the trial, even legal analysts on CNN and MSNBC continue to question the specific charges against Trump.

So far, there are three crimes cited by prosecutors: state and federal election violations and tax violations.

Bragg’s legal position on non-objective prosecution was significantly advanced by Judge Juan Marchan, who will allow the jury to reach a different verdict on what crimes Bragg’s paint spatters actually constitute.

Judge Marchan ruled that the jury could disagree about what actually happened with respect to the second crime. That is, there could be three groups of four jurors, one who believes there was a conspiracy to cover up state election fraud, one who believes there was a federal election fraud (which Judge Bragg cannot enforce), and three who believe there was a tax violation. Nevertheless, Judge Marchan would treat this as a unanimous verdict.

In other words, they could look at an indictment, see a completely different version of it, and still send Trump to prison based on their own interpretation.

Moreover, Michael Cohen is the only witness to have mentioned these elements of the crime. Cohen is a convicted habitual perjurer, disbarred, and appears to have lied again during his trial. Even if we take his testimony into account, there is no evidence that directly corroborates Trump’s intent or knowledge. As a result, the prosecution will rely on circumstantial evidence to support an interpretation that a jury will accept.

Faced with charges that could mean different things to different jurors, Trump’s team will need to focus on the space between the drops of paint: the canvas itself.

All of this litigation is based on non-disclosure payments, which are entirely legal and actually common in business and politics, but which the Trump campaign has had to circumvent.

Jurors are likely to believe Trump knew about the NDA and supported it. The defense must highlight the testimony of former National Inquirer publisher David Pecker, who covered stories about a range of celebrities and politicians, including Rahm Emanuel and Arnold Schwarzenegger. He also said he covered stories about Trump for years before he even began thinking about running for president.

It is important to highlight the testimony of multiple witnesses who said that Trump appeared to want to avoid embarrassing his family. Trump was both a popular television host and an international businessman. For most celebrities, including those with television contracts that include clauses allowing termination due to scandal, paying hundreds of thousands of dollars to stifle coverage is considered a cost of doing business.

In its trial instructions, the court plans to tell jurors that payments that would have been made anyway regardless of the nature of the campaign are not considered campaign contributions.

Other flaws also need to be pointed out: It was not Trump who listed the payments as legal expenses or retainers; witnesses said payments to lawyers are routinely recorded as legal expenses. Indeed, it is not clear how the money should have been described, but that decision was made by others in the Trump Organization and by Cohen himself.

Moreover, to the point of considering the payment as part of the “compensation,” the other party who did so was former CFO of the Trump Organization, Allen Weisselberg. Weisselberg is currently incarcerated in New York, but was not called by the prosecution. The prosecution chose to rely entirely on Michael Cohen. Multiple witnesses, including Cohen, addressed Weisselberg’s decision to make the payment.

The canvas itself was heavily shaded by Michael Cohen. All of this is wrapped up in a witness who admitted to lying to banks, Congress, prosecutors, business associates, and just about every living thing that has ever walked or crawled on the earth. He also lied before the jury about an important phone call and telling Trump about the NDA payment.

The defense argued that the 96-second call was made to Trump bodyguard Keith Schiller in late October 2016. It was followed by text messages indicating their conversation was actually about the teen’s harassment of Cohen.

Cohen also acknowledged that he has made millions of dollars from criticizing Trump and that he has a personal interest in seeing Trump convicted.

You could smear paint all day on Cohen and it still wouldn’t cover up the fact that he’s a pathological liar and cheater.

That’s why I still believe a unanimous jury is the most likely outcome. That could change once we know Judge Marchan’s final instructions. But the only thing worse than being a Trump supporter in New York is being a fool. Relying solely on Cohen and not calling someone like Weisselberg is treating the jury like fools.

Pollock did more than just throw paint on canvas. As Pablo Picasso said, “There is no such thing as abstract art. You must always begin with something, and then you can remove all traces of reality.” Bragg started with nothing and sold it as legitimate abstraction.

Jonathan Turley is the JB and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.