Trump’s trial is a stupendous legal catastrophe

Every American should be appalled at this selective prosecution. Today the target is Trump. Tomorrow it may be a Democrat.

Some had asked whether a jury selected in Manhattan, which voted overwhelmingly against Trump, could be fair in judging the former president. But now that we have moved beyond this point, the real problem Trump has is that his best arguments are legal in nature: prosecutors appeared to cobble together misdemeanours and felonies in order to find something with which to “get Trump.”

The underlying crime is seemingly a minor misdemeanour – falsifying business records – which long ago expired under the statute of limitations. In order to turn it into a felony within the statute of limitations, prosecutors will have to show that Trump falsified the records in order to impact his election, thus constituting a federal election felony. The problem is, however, that federal authorities have not prosecuted Trump for this federal election crime. Moreover, state prosecutors have no jurisdiction over federal election law. Finally, we were not even clear, when the trial began, as to precisely which federal election laws the District Attorney was relying on.

I have been teaching, practising and writing about criminal law for 60 years. In all those years, I have never seen or heard of a case in which the defendant has been criminally prosecuted for failing to disclose the payment of what prosecutors call “hush money”. Alexander Hamilton paid hush money to cover up an affair with a married woman. Many others have paid hush money since. If the legislature wanted to criminalise such conduct they could easily enact the statute prohibiting the payment of hush money or requiring its disclosure. They have declined to do so.

Prosecutors cannot simply make up new crimes by jerry-rigging a concoction of existing crimes, some of which are barred by the statute of limitations others of which are beyond the jurisdiction of state prosecutors.

Appellate courts should be able to see through this ruse and reverse any conviction resulting from it. But that would likely occur after the election. In the meantime, however, a conviction prior to the election that might influence independent voters to cast their ballot against a convicted felon. 

In addition to the legal problems with the prosecution’s case, there are also some factual weaknesses. Prosecutors are relying on witnesses who have previously lied and whose credibility is very questionable. They should have to prove beyond a reasonable doubt that Trump authorised the statement in business records that the alleged hush money payments were legal expenses and that this statement was knowingly false. They might also have to prove that the reason he authorised the statements was to help him get elected, not to avoid embarrassment to his wife and children or losses to his business.

If the defendant were not Donald Trump and the venue were not Manhattan, this ought to be a slam dunk win for the defendant. Indeed, this extraordinarily weak case would never have been bought.

I am not a Trump political supporter. I voted for Joe Biden in the last election and I have an open mind about the coming election. But I want it to be fair. Whoever loses the election should not be able to complain about election interference by the weaponisation of the criminal justice system for partisan advantage.

All Americans, regardless of political affiliation, should be appalled at this selective prosecution. Today the target is Trump. Tomorrow it may be a Democrat. After that, you and me. The criminal justice system is on trial in New York. If Trump is convicted based on the distortion of law and facts that we’re seeing, the system will have failed us all.