Below is my column in The Hill on last week’s cases and the sharp contrast to the handling of the Trump case in Manhattan. Two of these cases hold particular resonance with some of us who criticized Bragg’s prosecution.
Here is the column:
In 1976, Saul Steinburg’s hilarious “View of the World from 9th Avenue” was published on the cover of the New Yorker. The map showed Manhattan occupying most of the known world with wilderness on the other side of the Hudson River between New York and San Francisco. The cartoon captured the distorted view New Yorkers have of the rest of the country.
Roughly 50 years later, the image has flipped for many. With the Trump trial, Manhattan has become a type of legal wilderness where prosecutors use the legal system to hunt down political rivals and thrill their own supporters. New York Attorney General Letitia James (D) ran on a pledge to bag former president Donald Trump. (She also sought to dissolve the National Rifle Association.)
Manhattan District Attorney Alvin Bragg also pledged to get Trump. Neither specified how they would do it, but both were elected and both were lionized for bringing controversial cases against Trump.
Just beyond the Hudson River, the response to these cases has been far less positive. James secured an obscene civil penalty of almost half a billion dollars without having to show there was a single victim or dollar lost from alleged overvaluation of assets.
Through various contortions, Bragg converted a dead misdemeanor case into 34 felonies in an unprecedented prosecution. New Yorkers and the media insisted that such selective prosecution was in defense of the “rule of law.”
This week in the Supreme Court, a glimpse of the legal landscape outside of Manhattan came more sharply into view. It looked very different as the Supreme Court, with a strong conservative majority, defended the rights of defendants and upheld core principles that are being systematically gutted in New York.
In Gonzalez v. Trevino, the court held in favor of Sylvia Gonzalez, who had been arrested in Castle Hills, Texas in 2019 on a trumped-up charge of tampering with government records. She had briefly misplaced a petition on a table at a public meeting.
This was a blatant case of selective prosecution by officials whom Gonzalez had criticized. She was the only person charged in the last 10 years under the state’s records laws for temporarily misplacing a document. She argued that virtually every one of the prior 215 felony indictments involved the use or creation of fake government IDs.
Although the charges were later dropped, the case reeked of political retaliation and selective prosecution. There is no evidence that anyone else has faced such a charge in similar circumstances. Yet when she sued, the appellate court threw her case out, requiring Gonzales to shoulder an overwhelming burden of proof to establish selective prosecution for her political speech. The justices, on the other hand, reduced that burden, allowing Gonzalez to go back and make the case for selective prosecution.
Unlike the Trump case, the criminal charges against Gonzales were thrown out before trial. For Trump, selective prosecution claims were summarily dismissed, even though no case like Bragg’s appears to have ever been brought before.
The Bragg case is raw political prosecution. No one seriously argues that Bragg would have brought this case against anyone other than Trump. Indeed, his predecessor rejected the case. Yet people were literally dancing in the streets when I came out of the courthouse after the verdict against Trump. In fact, the selectivity of the prosecution was precisely why it was so thrilling for New Yorkers.
Another case decided this week was Erlinger v. United States. The justices ruled 6-3 (and not along the standard ideological lines) to send back a case in which Paul Erlinger had been convicted of unlawful possession of a firearm as a felon. He was given an enhanced sentence for having three prior convictions for violent felonies or serious drug offenses. However, the court denied him the right to have a jury rule on the key issue of whether these prior offenses occurred on different occasions.
The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This is in contrast to how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant.
In Trump’s trial, Judge Juan Merchan effectively guaranteed a conviction by telling jurors that they did not have to agree with specificity on what had occurred in the case to convict Trump. The only way to get beyond the passage of the statute of limitations on the dead misdemeanor for falsifying business records had been to allege that the bookkeeping violation in question occurred to conceal another crime. Bragg did not bother to state clearly what that crime was, originally alluding to four different crimes.
It was not until the end of the case that Merchan would lay out three possible crimes for the jury. All the way up to the final instructions in the case, legal analysts on CNN and other outlets expressed doubt about what the actual theory of the criminal conduct was in the case.
Despite spending little time on these secondary crimes at trial, Merchan told the jury that they could convict if they believed that invoices and other documents had been falsified to hide federal election violations, other falsification violations or a tax violation.
Those are very different theories of a criminal conspiracy. Under one theory, Trump was hiding an affair with a porn actress with the payment of hush money before the election. Under another theory, he was trying to reduce a tax burden for someone else (that part was left hazy). As a third alternative, he might have falsified the documents to hide the falsification of other documents, a perfectly spellbinding circular theory.
If those sound like they could be three different cases, then you are right. Yet Merchan told the jurors that they did not have to agree on which fact-pattern or conspiracy had occurred. They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved.
That was all that is required in New York when in pursuit of Trump.
Neither of these two cases is controlling in the Trump case, although there are two others pending on the use of obstruction (Fischer v. United States) and presidential immunity (Trump v. United States) that could affect some of the cases against Trump. But Gonzales and Erlinger demonstrate the high level of protections that we normally afford criminal defendants. A court with a 6-3 conservative majority just ruled for the rights of all defendants in defense of the rule of law.
That is not how the law is seen from 9th Avenue.
It all comes down to the legal map. As even CNN senior legal analyst Elie Honig observed, this case of contorting the law for a selective prosecution would not have succeeded outside of an anti-Trump district.
On the New Yorker map circa 2024, once you cross the Hudson River eastward, you enter a legal wilderness.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University School of Law. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon and Schuster, 2024).
One aspect of the Bragg case puzzles me. Cohen billed Trump for well over the amount of the Stormy NDA, ostensibly to cover taxes. Is this a standard practice? I can’t find any sources on how the defense explained the “grossed-up” amount, or whether it regarded the NDA payment as a disbursement or as something else. This isn’t the most crucial issue, but it’s where suspicions about Stormypalooza begin.
I recall when the nation was ‘shocked’ (think Inspector Renaud in Casablanca), shocked I tell you, when it learned that President Dick Nixon maintained an ‘enemies list.’
Trump’s list, if one believes he maintains one, would appear to grow on a weekly basis.
When and if he is inaugurated in January of 2025, the days and weeks immediately following should be very interesting to watch. Will he declare martial law to quell the massive rioting by his opponents/
What’s wrong with the Grand Jury process that Bragg wasn’t stopped in his tracks right there for mounting a pretextual, political prosecution? You’re supposed to be the legal eagle, JT, but you aren’t giving us advice on how to correct flaws in our legal system. Instead, all you do is whine and complain about stuff after the fact. It’s growing tiresome. Am I asking too much for an American “can do” attitude?….a healthy focus on making institutional improvements?
You should file a tort
Starting with the fact that the GJ process is inherently ex-parte and that even so Bragg violated the rules by failing to provide exculpatory evidence ?
There is nothing fundimentally wrong with Grand Juries, but there are many many reasons why they alone are NOT SUFFICIENT.
just as there is nothing wrong with the petite jury, but that too is insufficient.
We require Prosecutors to follow the constitution – which REQUIRES investigating CRIMES not persons.
The Left is currently terrified – as it should be, that Trump will be president and that a Trump DOJ will specifically target political enemies searching for Crimes they MIGHT have committed.
That is what Banana Republics do. That is what communist regimes do. That is what Democrats have done.
That is unconstitutional.
Willis and Bragg and James ran on a platform of “get Trump” – not prosecuting specific identified crimes allegedly committed by Trump, but to go searching Trump’s life until they found even the weakest reed and then trying to build that into a crime.
The Trump prosecutions have FAILED because of that. Far too many people are asking – “you went through Trump’s life with a fine tooth comb and THIS is all you came up with ?”
The left targeted Trump for promising a Muslim Ban as a presidential candidate. Making it CLEAR that they understand that campaign promises DO reflect biases that CAN preclude future actions by elected actors. There is a world of Difference between promising a muslim ban and delivering temporary restrictions on primarily islamic countries until their vetting process meets our laws and the norms in the rest of the world, and promising to “get Trump” and then devoting the power of public office to getting Trump.
But the problems with the prosecutor are small incomparison to the other problems with this case.
The requirement for the Judge to recuse is clear as a bell. Those of you on the left want Alito to recuse because his wife flies flags upside down or flies flags from the revolutionary war featured in the excellent series on John Adams. You want Thomas to Recuse because he has a close relationship with a Billionaire who has paid for vacations and other gifts for Thomas.
I am not sure how a US revolutionary flag could ever constitute a basis for recusal – unless Alito was a Crown Judge in 1777 trying a colonial for treason.
Absolutely Thomas must recuse himself from any case in which Harlan Crowe is a party – but there are none. Arguably Thomas MIGHT have to recuse himself from cases where Crowe has a CLEAR financial interest in the outcome.
Regardless the left is demanding recusals of supreme court justices or of Judge Cannon in FL on far more nebulous grounds that those applying to Judge Engoron and Judge Merchan.
I would further note that the Enmoron case is targeting an individual, and the Merchan case is targeting an individual CRIMINALLY.
That is where the requirements to recuse are HIGHEST. Absolutely any Supreme court justices that has contributed to Rahimis defense Fund or the campaigns of those prosecuting Rahimi should recuse.
Yet Enmoron and MErchan both took cases where NY law required them to recuse.
Worse still on issue after issue involving conflicts and constitutional violations the NY appelate courts ignored problems and violated Trump’s constitutional rights.
Abd we have not even touched the errors made by Merchan and Enmoron at trial.
The Highest NY court allowed cases like the EnMoron/James case to proceed without a jury specifically because any financial award would be deminimis. Otherwise the US constitution requires a jury trial. Next EnMoron improperly presumed guilt and jumped straight to the penalty phase. finnally he just plain botched the ruling.
SCOTUS long ago – in a RBG decision confirming prior decisions concluded that FRAUD is a property crime – following Blacks law dictionary.
This is NOT some legal technicality. It is a requirement that allegations of fraud REQUIRE real provable tangible damages. Otherwise we have rafts of lawsuits and criminal prosecutions over hurt feelings. No one in either Merchan’s court or EnMoron’s even argued that there was real tangible harm to anyone – therefore Enmoron and MErchan were REQUIRED to dismiss their cases. I would note that is also one of many reasons the public does not care. In the EnMoron case Trump was found to have overstated the value of his properties.
SO WHAT ? We al think what we own is more valuable than the market, and we all want to pay less for whatever we buy. Most of us know intuitively – if not consciously that the ONLY value of anything is what a buyer and seller willingly agree to.
In the Merchan case Bragg failed to prove that there was any falsified records – there is no GASB or FASB standard reporting for NDA’s or “Hush Money” – these can and are routinely catagorized as legal expenses and reimburements, and when paid to a lawyer as retainers. So the CORE claim of Bragg was nonsense. Further these are PRIVAT E records,
so the argument is that Trump lied to himself to cover up a non crime, in records that but for Braggs fishing expedition no one would have ever seen.
Exactly how do you defraud people in records they never see ?
Regardless the point is that ALL the requirements for Due process Are to prevent the sham trials that have occured in Manhattan.
The good ol’ Muslim ban, which excluded those from the 2 largest Muslim countries but included n Korea and Venezuela
And an estimated value of your assets is an estimate, so it can’t be a lie and can change daily
The sytem we have is imperfect – it has never promised to be perfect, when ALL the rules are followed it almost always produces results that we can trust and where even if there are errors, they are honest errors, not vigilante’s rushing and making mistakes in the fog of their hatred.
And here it is folks
Gigi’s BIG LIE
The one she has LIED about never saying. In fact, she has LIED and said she did not say this, at least 6 times. She has even tried to gaslight everyone by suggesting I couldn’t find her LIE.
Well, it wasn’t easy, because she has told a LOT of them.
Please enjoy, because she has NO SHAME and will not admit to her lie, even now.
Below is an excerpt from her post.
Gigi the Pathological Liar Says:
Nancy Pelosi was not in control of the DC National Guard and didn’t tell them to stand down. I didn’t lie. I have no idea who Amos Hochstean is, and have never claimed to. As to inflation that was above 8% when Trump left office, it has consistently gone down month by month, thanks to Joe Biden’s fiscal responsibility and leadership.
https://jonathanturley.org/2023/08/29/raffensperger-and-meadows-testify-in-key-hearing-in-federal-court-on-georgia-allegations/comment-page-2/#comment-2318372
Gigi, Dennis, George always use MSM Dem talking points
but act like they’re just smart and thinking all those things on their own.
George even said, “Talking points are an opposing view.”
Here is Dennis Nostradamus with another prediction that stinks to high heaven.
He speculates that the originalists in the “right wing cabal” of the SC will have difficulty with the Colorado 14th case. LMAO
Earth to Dennis……9 to Zip
https://jonathanturley.org/2023/08/27/yes-trump-was-seeking-another-recount-or-investigation-in-georgia-a-response-to-the-washington-post/comment-page-4/#comment-2317785
Here is a quote from dum dum Dennis, doubling down on dumb
I doubt the conservative members of the Court would want that outcome. No, they will be squarely faced with deciding the issue on a Constitutional analysis. That puts them in a dilemma because 3 respected conservative “originalist” scholars have said the plain language of Section 3 makes DJT disqualified. I think they have the better and more persuasive argument.—-Dennis the spastic idiot
Lie number 67 from Gigi the pathological liar.
Here she claims that Giuliani took the LAPTOP from Isaac, and then Giuliani gave it to the FBI.
She was quickly corrected by Tom, but strangely, never thanked him for educating her that what she heard from Rachel Maddow was not true, and that the FBI got the laptop from Isaac, who NEVER gave it to anyone else.
Instead she just moved on to her next lie.
https://jonathanturley.org/2023/08/27/yes-trump-was-seeking-another-recount-or-investigation-in-georgia-a-response-to-the-washington-post/comment-page-5/#comment-2318142
Here’s another chuckle from Gigi. She talks about Hunter not being charged with a crime, LOL. Ooops
Then she tells someone that the only reason he thinks the laptop would have mattered in 2016 was because he watches alt-right media.
79% think that it would have made a difference in the election
LOL you couldn’t get 79% to agree that the sky is blue, but yet….
And in fact, 17% of Biden voters say it would have changed their vote. So that 79% are correct.
https://www.congress.gov/118/meeting/house/116258/documents/HHRG-118-FD00-20230720-SD011.pdf
These are the people hand picked to moderate the debate Thursday.
We the people (ALL Americans) have a right to be gun wielding fvcking pissed right now.
“… serious journalists @jaketapper and @DanaBashCNN are reading and laughing about Donald Trump’s booking sheet with details of his weight and hair color.”
This one is too good not to post in it’s entirety.
Gigi, if I didn’t know better, I would say this Dick Head Mac guy is clowning you.
Jonathan
You are pathetic. I can’t back up a single thing I have said with links to actual documents, so I will just drop names and titles I heard on MSNBC and act once again like I know something. My rants are long, tedious, and boring, but it’s easy for me because I just cut and paste them from one of the DNC talking points emails I have.
Texas makes electricity from crude oil, thats a fact, as reported by Rachel Maddow. The economy is better now than ever. Who doesn’t like an aggragate 12.3 percent inflation rate the last 2 years and who doesn’t like paying double for gas and 7% interest rates?
But MSNBC says…look at that job report, wow, although we have 11 million unfilled jobs. God knows we could use some more. I mean just go ask the average democrat on the street, they will tell you that the Inflation Reduction Act and the Chips Act have REALLY improved their lives. No?? Well f them anyway, they don’t know what they are talking about. I am here to tell you the economy is great!!! I dont g-a-s what 80% of the country thinks.
You get paid by Fox, so nothing you say is true.
Besides, Jan Tombinski gave Pedo Joe the authority to coerce the Ukrainian gov’t with American tax dollars!! Rachel Maddow said so!
Blah Blah Blah Keyboard Diarrhea!!!
It’s pathetically trans-parents what’s going on here!!
https://jonathanturley.org/2023/08/23/joe-bidens-ukraine-defense-falls-apart/comment-page-2/#comment-2316367
We are getting close to the glory hole for Gigi, folks!
Here is Tom pointing out two other lies from Gigi.
The first is where she claimed that “inflation is going down every month”. It STILL hasn’t gone down from last August LMAO.
The second is where she claimed that Politico didn’t name the democrat who quoted Obama as saying “Never underestimate the ability of Joe to fvck things up”.
https://jonathanturley.org/2023/08/23/joe-bidens-ukraine-defense-falls-apart/comment-page-3/#comment-2316506