Guest Post: A Fair Trial

I am inundated by texts, emails, and requests for money for Trump.

No one claims Trump is innocent (except Trump himself.)

The complaints aren't about a lack of evidence that Trump was dead-to-rights guilty. It is that he was being held to account by the people with the responsibility for investigating and prosecuting criminal acts.

They complain Trump should not have been investigated. Or prosecuted by a Democrat. Or indicted by a grand jury. Or tried at all, since he is a candidate for office. Or tried about something scandalous like a hush money payments to a porn star. Or tried about something trivial like business or election fraud. Or tried in New York City. Or tried under New York laws. Or tried supervised by that judge. Or tried by a jury of New Yorkers. Or tried with witnesses like his former attorney. Or tried when he was barred from publicly criticizing the jury. Or tried when he wanted to testify for himself but was advised not to. 

The solicitations for money pour into my in-box, along with letters and comments from Republican friends: "Don't you see, Peter? "That this wasn't a fair trial!" 

Trump is doing what Trump does. When the outcome is disappointing, he claims the system was rigged against him. We saw this after the Iowa primary loss to Ted Cruz in 2016; the defamation trials by E. Jean Carroll; the conversion of foundation money to personal use case; the business and tax fraud cases in New York; the 2020 election, the 2022 midterm election, and now this trial. Trump has convinced fellow Republicans that, once again, he was robbed.

Robert Litt has a comment on that. Litt is a college classmate, who attended Yale Law School, worked as a federal prosecutor and for the Department of Justice as the Principal Associate Deputy Attorney General, and served as General Counsel in the Office of the Director of National Intelligence.

The photograph of young Robert Litt is from the Harvard Freshman Register, a glossy book of names and photographs. It is the original "Facebook." 

Robert Litt, 1967

Robert Litt, current

Guest Post by Robert Litt

Accusations of “due process violations” and “corruption” and “bias” in the Trump hush money trial don’t really mean much without specifics. I’ve not seen anything that comes close to justifying those claims. Anyone who has tried criminal cases, and is willing to be honest, will tell you that Judge Juan Merchan called it down the middle in this case, a particular challenge given the aggressive nature of the defense.

 

To give just one example, a lot of judges I have appeared before would have held Robert Costello. one of Trump's witnesses, in contempt on the spot. And the fact that the judge's daughter is a partisan Democrat is no basis for recusal of the judge himself (the principle invoked by defenders of Justice Alito). Indeed, the judge asked the appellate court for a ruling, and that court agreed that he did not need to recuse himself.

 

Dealing with a couple of the specific claims that have been made:

 

-       The judge did not bar a former FEC official from testifying, as Trump has claimed. The judge ruled only that he couldn’t testify as to what the law was. That ruling is completely unexceptionable; in any criminal case the jury is instructed in the law by the judge, not by witnesses. Nothing unusual about that ruling. 

-       The question of jury unanimity is not straightforward. There are some types of things that a jury doesn’t have to agree upon unanimously. For example, under federal law, conviction of conspiracy requires that an overt act has been committed in furtherance of the conspiracy, and the overt acts need to be set out in the indictment. But the jury doesn’t have to agree on which overt act was committed, only that one was committed. More to the point here, my understanding is that the general rule is that a jury must agree unanimously on the “elements” of the offense but not on the “means.” Thus, for example, if someone is charged with assault with a deadly weapon, and there is some conflict as to whether the weapon was a baseball bat or a billy club, the jury need agree unanimously only that it was a deadly weapon, not what the weapon was.  

The judge’s instructions in this case said that the “element” was the intent to influence an election by unlawful means - but the specific unlawful means were, well, means, as to which unanimity was not required. Personally, if I had been the prosecutor, I might have agreed to an instruction that the jury had to agree on the particular illegal means, to avoid an appellate issue, and because I seriously doubt that would have made any difference in the verdict. But whether the judge committed error by not giving that instruction will be for the New York courts to sort out. 

 

-       Unlike the rest of us, the jurors heard and saw Cohen over several days and were able to judge whether they thought he was lying or not. Apparently they concluded he was telling the truth. Some of us may disagree, but we weren’t there. I suspect that the defense tactics - undoubtedly demanded by the defendant - of contesting facts that were neither important to the actual defense nor subject to effective rebuttal (e.g., that he had an affair with Stormy Daniels) undercut the jury’s view of the credibility of the entire defense.  

 

-       The one area where I think the judge may have given the prosecutors too much leeway was in allowing Daniels to go into detail about the nature of the affair, although he did limit her testimony significantly. That’s a legitimate appellate issue that, again, the appellate courts will sort out, including whether any error was harmless given the overall strength of the case. (And the decision of the state courts to reverse Harvey Weinstein’s conviction shows that those courts are capable of treating even loathsome defendants fairly.)

 

-       There is zero evidence that this case was brought to “settle political scores.” Let’s be realistic. Whatever the legal issues may be, as a factual matter the jury found, after hearing evidence from both sides, that Trump caused false entries to be made in corporate books to cover up an affair he had with a porn star. Another judge has found, again after a full evidentiary presentation, that Trump’s organization systematically (and hugely) overvalued assets in order to get bank loans. In other words, he’s a cheat and a fraudster. Is it really right that he should escape accountability for his actions because he is a prominent politician? That would be a real double standard.

 

The fact is that over the years,Trump has almost invariably lost in court proceedings of all sorts. Either everyone is corrupt, or he is - Occam’s razor seems relevant here. The real weaponization of the law is from Trump supporters who want to purge civil servants and replace them with political loyalists and who overtly advocate for compiling lists of Democrats who will be locked up if he is elected - never mind what their crime is; we’ll figure that out later (another example of the “rubber/glue” syndrome that infects MAGA world). 

To my mind, the constant drumbeat of false accusations about corruption and politicization are far more corrosive to the rule of law than is this case. And many of those making such accusations are lawyers who know that their charges are baseless. Shame on them. They are tearing down Americans' confidence in our institutions for their own political benefit. 

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