by Mish Shedlock, Mish Talk:
Generally, there’s a crime and the prosecution makes a case. With Trump, the order is reversed. New York prosecutors picked their man, now they search for a crime, after a trial has started.
If you have been following the trial of Trump, and you are the least bit honest about things, you know its a kangaroo judge and prosecution. It remains to be seen how corrupt the jury is or isn’t.
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Democracy on Trial
The Wall Street Journal comments on The Trump Trial and Democracy
Outside of New York a reasonable person might think that such promises—identifying the defendant first, with charges to be named later—ought to be disqualifying for any fair prosecution since they are antithetical to American justice. Inside a New York jury room, reasonable people might wonder why Mr. Bragg would want to talk about an unrelated civil case if he really has the goods to make his own criminal charges stick.
Trump Indictment Is a Perversion of Campaign-Finance Law
Former Federal Election Commission Chairman Bradley Smith wrote for the Journal last year Trump Indictment Is a Perversion of Campaign-Finance Law
To recap how we got here: Ms. Daniels, a pornographic film performer, alleges she had a fling with Mr. Trump in 2006, nearly a decade before he entered the Republican primary for president. Once Mr. Trump became a candidate, Ms. Daniels began demanding money in exchange for her silence. Mr. Trump obliged, and his company, the Trump Organization, sent $130,000 to Ms. Daniels through Mr. Trump’s personal lawyer, Michael Cohen. The expense was apparently recorded on the company books as “legal fees,” which the indictment is expected to allege was a falsification of business records.
Mr. Bragg’s political problem is that this charge is chump change, merely a misdemeanor under New York law. To ratchet it up to a felony indictment, the district attorney has to show, among other things, that the falsification was designed to conceal another crime. That crime is believed to be a campaign-finance violation—an illegal corporate contribution by the Trump Organization to the Trump presidential campaign—which the false business reporting was meant to conceal. Here’s where Mr. Bragg’s legal problem comes in: Was the hush money a campaign contribution? The governing statute, the Federal Election Campaign Act, provides that a contribution is any donation made “for the purpose of influencing any campaign for federal office.” The Trump Organization, says Mr. Bragg, paid Ms. Daniels to prevent revelations that would have hurt Mr. Trump’s presidential campaign. Thus the payments were “for the purpose of influencing” a federal election—and, since corporate contributions to a campaign for federal office are illegal, the case is closed.
Not so fast.The Supreme Court has repeatedly held that because campaign-finance laws infringe on core First Amendment activity, they can’t be dependent on vague, subjective interpretations. Accordingly, the clause “for the purpose of influencing any federal election” is an objective standard. As another section of the statute states, an obligation isn’t a campaign expenditure if it exists “irrespective” of the campaign. In other words, campaign funds pay for campaigning—the campaign manager’s salary, ads, campaign travel, venues for rallies, polling and so on. They don’t pay for personal expenses not created by the act of campaigning, even if the candidate intends for them to benefit the campaign.
The statute’s objective nature is demonstrated by a noninclusive list of things that campaign funds may not be spent on no matter how much they might benefit—or be intended to benefit—a campaign. For example, if a candidate wants to look good in a debate and purchases a $4,000 suit he would never have bought if he weren’t running for office—that is to say, he buys it with the subjective intent to influence an election—it still can’t be purchased with campaign funds, because he would have to buy clothing anyway. A country-club membership can’t be purchased with campaign funds, no matter how much the candidate intends for it to benefit his campaign by giving him a place to schmooze donors.
In other words, the “crime” that Mr. Bragg claims is being covered up isn’t a crime at all. Worse still, one is left with the distinct impression that if Mr. Trump had used campaign funds to pay Ms. Daniels, Mr. Bragg would be alleging that the underlying crime the business records were intended to cover up was the illegal conversion of campaign funds to personal use. This is a classic Catch-22 that undermines the rule of law.
Porn Star Stormy Daniels Ridiculous Testimony
Time Magazine has this recap of Porn Star Stormy Daniels’ Testimony
The testimony carried all of the bawdy details one would expect in a made-for-tabloid tryst. There were silk pajamas. The porn star spanked the billionaire “right on the butt” with a magazine featuring him on the cover. He shared pictures of his wife, who was nowhere near the hotel penthouse. She alleged she felt a power imbalance that left her feeling like she had few options but to proceed with the unprotected and “brief” sexual engagement. She even seemed to suggest the whole affair may not have happened with consent. And that was just the first of at least two days of this.
On the legal front, you can already see the seeds for a Trump appeal taking life as his lawyers repeatedly objected that the details being presented by Daniels were so prejudicial that it would undoubtedly taint the jury’s decision. But Merchan declined their request for a mistrial.
“There will be grounds for appeal. But I don’t think it’s enough to win an appeal,” says Elie Honig, a former federal prosecutor who is watching the case closely and has been critical of the state’s strategy. “Not every error is going to cause a mistrial or a win on appeal.”
The enmity between Daniels—born Stephanie Clifford—and Trump was on full display for jurors and judges from afar alike to see. Trump muttered profanity during her testimony and his lawyers were telegraphing on Wednesday that the next day could bring harsh questioning. Daniels was far from circumspect about her motivations, acknowledging she wanted to hurt Trump by coming forward with her story. These two, it is incredibly apparent, loathe each other and want to see the other destroyed—which may make for great drama, but not immediately useful in the court proceedings. In a microcosm, they are fairly good proxies for how half of this country sees the other.
The Washington Post Transcript
The Washington Post offers this transcript of What Stormy Daniels said happened in Trump’s hotel suite
At the opening of Tuesday’s court session, Trump’s attorney Susan Necheles began by objecting — in advance of testimony by Daniels, whose legal name is Stephanie Clifford — to the prosecution seeking “any details of any sexual acts.” The charges, the defense noted, are not over alleged sexual acts.
Susan Necheles, defense attorney: We think that this is irrelevant. It has nothing to do with the charges in this case. And to the extent that it has any relevance, it’s unduly prejudicial. And there really is no reason for it to be coming into the case about books and records here.
Judge Merchan: So when you say that some details are necessary, can you give me a sense of what you have in mind?
The prosecution argued that the details are important if the jury is to understand why Trump would have been motivated to pay money to prevent a story about the alleged encounter with Daniels from appearing in news reports.
Daniels, who appeared nervous and spoke quickly, gave an incredibly detailed account of the evening she went to Trump’s suite at a Lake Tahoe resort following a golf event, where she said they had sex.
Daniels’s account also included how she stared at the ceiling during sex, since she was “trying to think about anything other than what was happening there” — to which the judge sustained an objection. She also said Trump didn’t wear a condom, and described the position in which they had sex. After the encounter, Daniels said she remained silent as she gathered her possessions.
Daniels said they stayed in touch because she hoped Trump would let her appear on his hit reality show, “The Apprentice.”
Immediately after the lunch break, Trump’s attorneys argued that Daniels’s testimony about the sex act was irrelevant and prejudicial to the point that it warranted a mistrial.
Trump’s lawyer Blanche: The Court set guardrails for this testimony. And the guardrails by this witness, answering questions from the government, were just thrown to the side.
In particular, Trump’s attorney argued that many of the details were simply intended to embarrass his client and “inflame the jury” in a trial fundamentally about business records, including any suggestion there were “safety concerns” in the encounter.
The judge said it “would have been better” if the prosecution hadn’t gone into certain areas, but suggested that “in fairness,” the witness was “a little difficult to control.”
Merchan: I do think that there were some things that were better left unsaid. Having said that, I don’t believe we are at the point where a mistrial is warranted.
All of this is what happens when a trial starts while the prosecution is still in search of a crime.
Any fair person should hope that if there is a conviction, it will be overturned on appeal.
Trump is not above the law. No one is. But Trump should not be beneath the law either. And that’s clearly what is in progress.
