The Manhattan conviction of former President Donald Trump on 34 felony counts sparked a citywide celebration. This thrilling atmosphere was felt in the media, with former federal prosecutor Harry Littman writing:He told MSNBC’s Nicolle WallaceIt was a “solemn day” and a “day to celebrate.” As I left the court after witnessing the verdict being handed down, I was overwhelmed to see members of the public and some of the media celebrating outside.
Celebrators would be wise to think twice before hoisting this trophy kill on the political wall. I believe the Trump trial is an environment with multiple layers of reversible error and subject to appeal.
I’m not too convinced that the case could be challenged on the grounds that Trump did not get a fair trial in a district that voted roughly 90 percent against him. The problem is with the prosecutors and the judge, not the jury.
Some of the most compelling issues can be divided into four groups.
judge
Acting Supreme Court Justice Juan Marchan was not randomly selected for this case, but handpicked by himself. This is just the latest in a long line of Trump cases in which Marchan has issued harsh rulings against Trump and his organizations. Any other defendant would have been outraged by his selection. Marchan donated to President Biden. The State Bar Association waived the violation because the donations were small, but later emphasized that such donations are inappropriate for a judge. It was later discovered that Marchan had donated to Republicans and groups aimed at blocking Trump. Marchan’s daughter is also a Democratic activist who has opposed Trump and the Republican Party and helped raise millions of dollars for the Democratic Party.
CNN legal analyst Elie Honig has previously said the lawsuit is legally dubious, targets Trump and would be unwinnable outside of anti-Trump districts. I tried Criticizing Biden’s donor appointments for fairness designation He called for donations to “resist the Republican Party and the far-right legacy of Donald Trump.” He asked, “If the judge had donated a few dollars saying, ‘Re-elect Donald Trump, MAGA Forever!’ would people be at all comfortable with him continuing to try the case?” “Absolutely not.”
Equally disturbing is that even his critics admit that Judge Marchan has failed to protect the rights of defendants and has clearly sided with the prosecution in his cases. Not only are there apparent conflicts with Judge Marchan, but he has a history of highly biased rulings. Watching Judge Marchan in court, I was struck by how incomprehensible and contradictory his rulings sometimes are.
Details of the complaint
A key issue will be the decision on whether to allow Manhattan District Attorney Alvin Bragg to effectively try Trump for federal violations. The Department of Justice has dismissed criminal charges under federal election law against Trump for alleged “hush money” payments. The Federal Election Commission has likewise found no basis for civil monetary penalties. In the absence of federal prosecutions, Bragg has decided to use an unprecedented criminal theory to allow him not only to resurrect dead misdemeanors (after the statute of limitations has expired) but also to try not only federal election violations but also federal tax violations. In other words, because the Department of Justice will not prosecute federal violations, Bragg has effectively prosecuted in state court.
Even as closing arguments were being made, analysts at the various networks acknowledged that Bragg’s case was unclear. The indictment alleged that the falsification of business records was done in furtherance of another crime, in violation of New York State Election Law 17-152, as an illegal means of influencing the election. But in an infuriatingly circular theory, that other crime could also be the falsification of business records. It could also be a violation of federal election and tax laws, for which Trump has never been charged, much less convicted.
Hard evidence
Judge Marchan allowed the prosecution to introduce a barrage of pointless and prejudicial evidence into the trial, including the testimony of Stormy Daniels, a porn actress who detailed her sexual encounters with Trump, and explicitly implied that Trump raped her. After this utterly disgraceful testimony, Judge Marchan expressed regret, but in fact criticized the defense for previously objecting to the testimony. He had previously severely reprimanded the defense for continuing to object, but now he criticized them for not continuing to object.
Judge Marchan was similarly inconsistent in other orders. For example, he allowed prosecutors to present Michael Cohen’s plea deal for federal election fraud and David Pecker’s non-prosecution agreement for similar violations, but only for credibility and contextual reasons. He instructed that the jury could not consider the plea deals or agreements to prove or incriminate Trump.
Prosecutors then stated that it was a “fact” that federal election violations occurred in the case and that Trump directed them. They also sought similar statements from witnesses such as Cohen. Marchan rejected the objection that prosecutors were ignoring his instructions. Marchan also barred from the presence of a legal expert, former Federal Election Commission Chairman Brad Smith, who was prepared to testify that the payments did not qualify as federal election violations and would not have affected the election if they were considered contributions. Smith was prepared to testify that the payments did not qualify as federal election violations and would not have affected the election if they were considered contributions because they were not even required to be reported until after the election.
“The courts retain the power to tell the jury what the law is, so Marchan’s refusal to testify will likely be upheld. The problem is, Marchan failed to do so. To make matters worse, he repeatedly falsely claimed that these payments were campaign contributions, leading the jury to hear the opposite.”
Instructions
Some held out hope that the jury might reach a unanimous verdict, despite the reversible errors. But those hopes were largely dashed by the instructions Judge Marchan gave the jury. The court largely followed standard instructions in a case that was anything but standard. But the instructions raised doubts about what the jury would ultimately decide. When the verdict was delivered, we still weren’t sure what Trump had been convicted of.
Judge Marchan allowed the jury to decide the second crime was one of three vague options. Even the jury ticket did not have to specify which crime was found. With Judge Marchan’s instructions, the jury could have been split 4-4-4 on what happened in the case. They could have looked at conspiracy to cover up federal election violations, falsifying business records, or tax violations. We’ll never know. And what’s worse, Mr. Trump will never know.
The Supreme Court has repeatedly emphasized that the requirement of unanimity in criminal convictions is essential to our system. There was unanimity that business records were altered to conceal or facilitate a second crime, but there was no specific finding as to what that crime was. In a sense, Trump may have benefited from Marchan’s blameless approach. The jury’s blanket conviction of Trump might have led to a finding on all three second crimes. The verdict document never required such detail.
These are just a few of the issues on appeal. There are others, including due process violations due to the lack of specificity of the indictment, vagueness of the underlying state law, and lack of evidentiary support for important defenses like “legitimate journalistic function.” These are the reasons why many of us see a high probability that this case will be overturned in either the state or federal system. None of this will dampen the excitement of this Manhattan murder.
But if Biden wins the election before the conviction is overturned, history’s verdict would be shocking.
Jonathan Turley is the JB and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
