The Trump Verdict and the Political Destruction of the Law: Josh Filler

On Thursday, the final act of former president Donald Trump’s show trial in New York was delivered. And just like a Broadway play, the jury followed the script and found Trump guilty on all counts. This included falsifying business records related to hush money payments to porn star Stormy Daniels in furtherance of a conspiracy to promote or prevent the 2016 presidential election, as evidenced by those payments violating federal election law. While the case remains a legal abomination, the one thing the prosecution did prove is that Trump had lousy judgement in hiring the state’s star witness, Michael Cohen, as his lawyer. Regardless, just as Trump’s conviction was a surety, its being overturned on appeal is all but guaranteed, but not before the 2024 election. 

For starters, both the Federal Election Commission and the Justice Department, the two federal entities that have jurisdiction over federal election law, declined to prosecute Trump or even fine him or his campaign civilly for the payments to Daniels in exchange for a non-disclosure agreement. The reason is simple, there was no legal violation in making those payments, and recording the reimbursement to Cohen, who made the payments to Daniels, as a legal fee was done accurately by the Trump organization, which is why the prosecution never put on any accounting expert to show otherwise. They relied solely on convicted serial liar Michael Cohen to prove their case. 

As for the appeal, just recently Harvey Weinstein’s New York rape conviction was thrown out by the New York Court of Appeals on the grounds that prejudicial testimony concerning unrelated bad acts had been given to establish Weinstein’s propensity for such bad acts in violation of his right to a fair trial. Despite taking four years, the court’s reversal of the conviction represents that the rule of law still lives in New York, even among the most unsympathetic of defendants. The errors in Trump’s case dwarf what took place against Weinstein. 

To demonstrate what a kangaroo court Trump was up against, consider the following. The prosecutors were either Joe Biden donors or former Biden appointees at the Justice Department. The judge was a Biden donor, in violation of New York State ethics rules, and the Manhattan jury was comprised of Biden voters. As to the latter, there is a saying in trial practice that cases are won and lost at jury selection. In Donald Trump’s situation, the case was decided when the venue was chosen. Joe Biden won Manhattan with 86 percent of the vote in the 2020 election. Trump received just 12 percent and as such sought to have the trial moved to Staten Island, a more balanced playing field, but was denied by the judge. From that Manhattan pool of potential jurors, Trump’s goose was cooked before the kitchen even opened.

The full list of reversible errors committed by the judge in this case is too long to review thoroughly here. However, a quick snapshot includes not recusing himself after it was found he donated to Joe Biden, not requiring Trump to be indicted by a grand jury for all of the crimes he was prosecuted and convicted of in violation of the Fifth Amendment, and not requiring the prosecution to specify in writing what crimes Trump was being prosecuted for in violation of the Sixth and Fourteenth Amendments.

The judge also wrongfully blocked Trump from putting on a defense against the alleged federal election law violation by denying his request to have the former head of the Federal Election Commission testify, he incorrectly assumed jurisdiction over the federal election statute despite being preempted by federal law, and the judge allowed the case to go forward even though the statute of limitations had expired on the business records crime, etc. Similar to the Weinstein errors, the judge also allowed Stormy Daniels’ highly prejudicial and irrelevant testimony to be given (the judge all but admitted this mistake at the trial after her salacious testimony).

Prosecuting a former president, let alone one who is seeking and likely to re-win the presidency, should only be pursued when the evidence is incontrovertible and the legal theories upon which the case is based are clearly established, consistently applied, and easily understood. None of that was present here. Until the judge issued his jury instructions after the state and Trump had given their closing arguments, most lawyers could not agree on what the theory of the state’s case even was, because the prosecution never delivered it in an indictment or bill of particulars, or anywhere else. Allowing such an unprecedented legal travesty to go forward represents a deep fissure across America’s political landscape not seen since the mid-1800s.

Just how deep the divide runs will be put to the test on July 11^th when Trump is to be sentenced by the Biden donor judge. Under New York law, there are a number of options, including straight jail time, up to four years per felony, intermittent imprisonment, i.e., weekend jail, probation, conditional discharge, and unconditional discharge. A fine of up to $170,000 is all but assured, with probation the most likely to be imposed restriction on Trump’s liberty. Any form of imprisonment would only deepen America’s fall into banana republic status, but it cannot be ruled out, given the deranged hatred aimed at Trump by the Left, and their obsession with keeping him out of the White House. 

Decades ago, former solicitor general and federal appeals court judge Robert Bork wrote about the political seduction of the law. Bork’s concerns that political and ideological values were corrupting judicial decisions seems almost quaint by today’s standards. What happened in New York and what is happening in other jurisdictions prosecuting the former president represents the political destruction of the law by weaponizing the justice system to vanquish political opponents. It will be up to higher courts and rational adults to reestablish the rule of law and force a distinction between political differences and criminal misconduct. That distinction was lost inside a New York courtroom on Thursday, and we are all the worse off for it.