THE EVOLUTION OF A CULTURAL FELONY

Late in the afternoon on May 30, a New York jury found Donald Trump guilty of thirty-four counts of falsifying business records. 

At that time, in what was clearly a minority view, I thought the reasons not to comment on the verdict easily exceeded those for doing so.

The charge itself -- falsifying business records -- is ordinarily a misdemeanor.  It can be turned into a felony, though it rarely is, if the false records are generated with an intent to defraud that includes an intent to commit another crime or to aid in or conceal the commission of another crime. 

In this case, Manhattan's District Attorney Alvin Bragg alleged that the other crime was the violation of section 17-152 of New York's Election Law.  That section makes it a crime for two or more persons to conspire "to promote . . . the election of any person to public office by unlawful means".  The DA claimed -- and the judge agreed -- that the unlawful means could be "(1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) falsification of other business records; or (3) a violation of tax law."  

Jury verdicts in criminal cases must be unanimous.  This means that the twelve jurors must all agree on a verdict of either guilty or not guilty. In addition, to reach a guilty verdict, the jury must unanimously find beyond a reasonable doubt that the defendant committed each element of the crime.  

Here, that meant the jury was  required to unanimously find that Trump conspired to falsify records and did so with the intent to promote his election by unlawful means.

Critically, however, the jury in this case was not required to agree on those unlawful means.  So long as all twelve of them thought Trump had committed at least one of the three illegal acts alleged to constitute the unlawful means, that was sufficient.  Some may have thought he conspired to falsify records with the intent to promote his election by unlawful means by violating FECA; others may have thought he did so by falsifying other records or by violating the tax laws. 

Once you take out the sex and Trump, the combination of which turned it into a prurient daily double, the case was actually a boring one.  

There were thirty four "records" -- either checks signed by Trump, invoices from Michael Cohen or ledger entries in the Trump organization's books and records -- the jury had to conclude were false.  And then it had to further conclude that each record had been created as part of a conspiracy to promote Trump's election by unlawful means.  

The evidence of the first was pretty much irrefutable. The checks, invoices and ledger entries were called payments for legal fees where no legal services had been provided. As to the second, the DA was able to prove that, in the wake of Access Hollywood's  infamous "grab 'em by the p**y" disclosure, Trump and his campaign were intensely concerned about any other adverse stories surfacing, which ultimately resulted in Cohen paying off Stormy Daniels and Trump reimbursing the payment.

The problem in the case was whether the pay-off violated New York's election law. 

To do so, the payment (i) had to be for the purpose of promoting Trump's election and (ii) had to itself be made unlawfully. 

The jury obviously concluded it had. 

The first conclusion was hardly surprising.  

Before his 2016 campaign even started, Trump cut a deal with the National Enquirer's  David Pecker, who agreed to warn the campaign of any bad stories in the offing. As part of that deal, the National Enquirer's parent company actually paid for two stories and then did not publish them, a practice known as "catch and kill". Also as part of that deal, Pecker pressed Trump for reimbursement. Because he had already advanced $180,000 for two stories, Pecker refused to fund the catch and kill of the Daniel's story. At Trump's insistence, Cohen then stepped in to kill that story by paying Daniels himself in exchange for her non-disclosure agreement (NDA).

The second conclusion, however, was problematic.

Because . . .

We have no idea whether the jury agreed on what made the payment to Daniels illegal. 

Was the payment a violation of FECA, made in a way that resulted in the falsification of other records, or made in a way that violated tax law? The jurors were free to choose any of these bases and did not have to agree on that choice.

It's possible, therefore,  that Trump was found guilty of a misdemeanor turned felony based on crimes a less than unanimous group of jurors concluded he had committed.  And as a result, it's also possible the conviction was unconstitutional.  Unanimity has always been required in federal criminal trials, and in 2020 the Supreme Court held it was required in state criminal trials as well. Whether that rule was violated here depends largely on whether the required unanimity on an element of a crime can be satisfied where that element -- unlawful means -- is itself satisfied via a menu of possible illegalities, no one of which must be found unanimously.

Following each day of his trial, Trump headed for the media just outside the courtroom.  

Before the cameras, he repeatedly called the judge corrupt and claimed the process was rigged.  

Though he embraced his right not to do so on the witness stand under oath, his courtside comments also repeatedly proclaimed his absolute innocence. 

Much of what Trumps says, on most of the days he says it, turns out to be garbage.  Childish rants at best. Pathological lies at worst.  Following his conviction, however, one thing he said was absolutely true.

"This is not over."

He was right

He has grounds for appeal here and will undoubtedly pursue them.

At that point, the chattering should have ceased.

Because . . .

There was really no news there anymore.

OK, Trump is the first ex-president ever convicted of  crime.  

Add it to his list of firsts.  

The first ex-president indicted on ninety-one criminal counts in four separate jurisdictions. The first president to attempt a coup in the wake of his defeat at the polls.  The first president  impeached twice. The first ex-president adjudicated a rapist. 

Even the salacious stuff was vintage Trump.  Sex with a porn star followed by a blanket denial no one takes seriously.  We always knew he was a sleaze. 

The point is there was not much here that was new. 

But then came MAGA's unhinged reaction.  

And the reaction of its cowardly following.

And all the reasons for not commenting . . . 

Vanished.

Whatever appellate issues exist, the notion that Trump's trial was anything other than a classic example of the rule of law at work is complete nonsense. 

The indictment was issued by a grand jury.  

A motion to dismiss the indictment was denied and the denial was upheld on appeal.  

A jury was chosen randomly. 

The trial court judge bent over backwards in litigating and then ruling on Trump's on-going contemptuous conduct. Any other defendant who behaved as Trump had would have been jailed.  

Trump's lawyers were vigorous in their cross examination of the DA's witnesses. No one listening or watching -- and certainly no one on the jury -- could have failed to understand that the chief witness against Trump -- Michael Cohen -- was a convicted felon and a serial liar.  No one listening or watching could have missed the fact that the porn star was cashing in on her new-found celebrity.

At the end of the day, the documents -- and two Trump loyalists -- did Trump in.  

The accountants' true up as much as anything else proved that Cohen was telling the truth.  The whole legal fees front was a complete fraud.  And David Pecker and Hope Hicks helped seal Trump's fate by making it clear that a plan was in place to kill bad stories and that plan went into overdrive after the Access Hollywood tape.

All of this, however, is lost on MAGA's acolytes.

Texas Gov. Greg Abbott called People v. Trump  "a sham show trial" in "a Kangaroo Court" by "a sitting US president weaponizing our justice system against a political opponent."  Speaker Mike Johnson called the trial "shameful".  Ohio's JD Vance said it was "a disgrace to the judicial system." Ted Cruz called it "nothing more than political persecution." Marco Rubio out did them all.  For him, "what happened [was] similar to what I grew up hearing about in Cuba."  Trump's senior aide Stephen Miller demanded that "every facet of Republican Party politics and power . . . go toe-to-toe with Marxism and beat these communists." To make himself clear, Miller tweeted "Is every Republican state AG opening investigations into voter fraud right now?  Is every House committee . . . using its subpoena power in every way it needs to right now?" 

To call these statements unhinged is an understatement.

They are irresponsible.

On the one hand, they are false.

Joe Biden has weaponized nothing.  People v. Trump was a state case. So is the Georgia election case against Trump. Biden had nothing to do with either of them. The two federal cases have been brought by a Special Counsel from whom he is insulated by statute; that counsel can only be fired by the Attorney General and then only for cause. The one case, of course, in which Biden has an interest is the current federal prosecution of his son in Delaware for illegal possession of a firearm. He could have probably stopped it by just appointing a different US Attorney. But he didn't.

On the other, the rants of Abbott, Vance, Cruz, Rubio and Miller are dangerous.

People v. Trump was rightly considered the least important of the four cases brought against Trump. At base, it was about the tawdry cover-up of sleazy sex by a foul-mouthed fraud who routinely lies for a living. It wasn't in the same league as  the Georgia or DC election cases, which charge Trump with attempting a coup, or the Florida federal case, which charges him with illegally retaining national defense secrets. 

In support of Donald Trump's on-going effort to destroy the rule of law, however, the MAGA-fied GOP has upended all of that. 

Their rants literally mean no politician can be fairly tried in any jurisdiction that opposes him. No judge in that jurisdiction can preside.  No jury can be impaneled.  By definition, any such trial would be a sham, any such tribunal a "Kangaroo Court" where "proceedings deviate so far from accepted legal norms that they can no longer be considered fair or just."  

The idiocy inherent in such a construct is transparent.

No Democrat could ever be tried in a red state.

No Republican in a blue one.

Any that were would be living in Marco Rubio's childhood Cuba.

Presumably with all the "communists" Stephen Miller is so anxious to eliminate.

Nice job MAGA.

Alvin Bragg convinced a jury that Trump's misdemeanor was a legal felony.

And you've now turned that into a cultural one as well.