'Lawfare': Should Trump trial result in a conviction, result should be overturned on appeal

Former President Donald Trump’s trial on ‘hush money’ payments should result in a verdict later this week. Should the trial result in a conviction, in my view, the verdict will be quickly overturned on appeal.

First, in an abundance of caution and avoidance of the appearance of impropriety, the judge, Juan Merchan, should have recused himself from the very beginning of this trial. His daughter, Lauren, has profited from the trial through her consulting firm as her Democratic clients, reportedly, have raised millions in campaign donations through email, citing the trial over which her father is presiding. Judge Merchan’s refusal to transfer the case to another Judge demonstrates his personal political bent and seeming bias.

Second, the judge should have moved the trial out of Manhattan to a more neutral location in New York state where the president could receive a more fair trial.

Third, the judge, constructively, precluded a key defense expert from testifying fully and completely. This witness, Bradley A. Smith, a campaign finance expert, would have told the jury that that the alleged charges against Trump were strictly federal in nature and could not be heard by a state court or jury, since they do not have jurisdiction over alleged federal campaign violations.

Fourth, the Judge castigated a key defense witness in plain view of the jury (Robert Costello, the former lawyer for the prosecution’s star witness, Michael Cohen). He confronted Costello’s credibility and veracity — this act alone tainted and unfairly prejudiced Trump’s defense and, in the law, is termed “reversable error,” requiring a new trial. The Judge accused Costello, in front of the jury, of giving him a “side look” and “staring him down.” The angered Judge then cleared the courtroom, dismissing the media and the public. This act alone indicated to the jurors that Costello was a poor witness, which no doubt will have a profound effect on how much weight they give his testimony.

More importantly, perhaps, the judge violated Trump’s Sixth Amendment right to a public trial. The public and media had every right to see the judge’s attempt to intimidate and control Costello, in effect, denying Trump’s constitutional rights by disallowing Costello’s full testimony for fear of angering the judge.

Quite simply, the judge’s handling of the trial, from a legal standpoint, has been such a fiasco that any guilty verdict will almost certainly be overturned. Yet, that will only happen after the November election which allows the current president to tarnish his opponent as a “convicted felon.” That, of course, was the whole point of this “lawfare” against a former president.

Yet, there is a much more troubling and broader aspect of this trial, coupled with the three other pending trials that face a former president for the first time in history. These politically motivated trials raise a vital constitutional issue for the American public. The overt attempt to destroy a political opponent is not new in politics. It can be traced back to the election of Thomas Jefferson when a muckraking, alcoholic journalist sought to smear Jefferson’s reelection bid with the allegation that he had a sexual affair with one of his slaves, Sally Hemmings. That spurious charge has followed Jefferson for over 250 years, as one historian has described, as a ‘tin can’ tied to Jefferson’s political reputation. However, it did not sway his supporters and the voters, who overwhelmingly elected Jefferson to a second term in 1804.

Fast forward 250 years and the same type of “lawfare,” political slander, and libel is taking place against a former president on an unprecedented scale. This “lawfare,” as it has been dubbed by the media, is an inherently dangerous political road to traverse for a representative republic. To destroy a political opponent by dubious civil and criminal allegations seeks to disenfranchise nearly 74 million people who voted for Trump in the 2020 election, in a blatant political attempt to force him off the ballot or soil his reputation with the moniker of “convicted felon.” This “lawfare” type of tactic, as well as Trump’s two previous sham impeachments, are a dangerous political tactic and precedent by one party against the other.

Should Trump be found guilty in the first criminal trial of a past or current president, I believe it will be a mockery of justice in an obvious attempt to control and influence the 2024 presidential race. The trial is a brazen use of the Department of Justice to purge and intimidate a political opponent, aided by zealous Democratic district attorneys in New York and Georgia. The current president has clearly received an unfair political advantage depriving his opponent of valuable time and resources to campaign in battleground states, as well as ruining his reputation. Even the most partisan onlookers can recognize that Judge Merchan’s conduct, and the trial as a whole, has been passionately partisan and ‘political,’ rather than legal, in nature.

William Hyland is an author and DeLand attorney with Vernis & Bowling of Central Florida, P.A.