Thursday’s climax of the Manhattan trial of former president Donald Trump may go down in history as “The Reverse O.J.” Although juries declared one famous defendant not guilty and threw the book at the other one, the reactions after both verdicts were similar: screams of celebration and ecstatic cheers from people who saw what they believed was a score-settling justice in the outcome, transcending any reality in the courtroom. “Beat the police” was the theme of the O.J. revelers. “Get Trump” was the theme of the festivities on Thursday.
Other people were horror-struck by the verdicts in each of these cases, seeing them as a catastrophic failure of the American system of justice. That reaction is less noisy, but more volcanic. Soon after the verdicts, the Trump campaign website was so overwhelmed by the number of people simultaneously making donations that it crashed and temporarily went offline.
When the trial concluded, TV cameras followed Trump’s black SUV and its police-escorted motorcade through the streets of New York City — reminiscent of another slow-speed SUV chase covered live on TV — while legal analysts discussed the jury’s verdict of guilty on 34 counts of falsifying business records for the purpose of furthering another crime. Even after the verdicts were read, it still wasn’t clear what other crime Trump had been found guilty of committing.
Prosecutors had waited until their closing argument, after Trump’s attorneys had completed their own closing argument and couldn’t respond, before settling on a theory that the other crime was the violation of a state law against conspiring to promote the election of a candidate by unlawful means.
But Trump was the candidate in question, openly trying to win the election. What exactly was unlawful? It is not illegal to pay someone to sign a nondisclosure agreement to protect a candidate’s image.
Judge Juan Merchan instructed the jury that they could choose from a number of “unlawful means,” including violating tax law and violating federal campaign finance law, though these were never explained to the jury or charged in the case. Merchan told the jury they did not have to reach any agreement on what law Trump violated, because as long as they all agreed that he used some kind of unlawful means, he would consider it a unanimous verdict.
That could be unconstitutional, just one of many significant grounds for appeal that legal experts identified before the ink on the verdict forms was dry.
Merchan allowed the jury to hear from the prosecution team, repeatedly, that campaign finance violations were committed, but he refused to allow the jury to hear the fact that both the Federal Election Commission and the Department of Justice had previously investigated and chosen not to prosecute Trump for any of it.
Merchan also disallowed testimony from a defense witness, former FEC commissioner Brad Smith, who was going to explain to the jury what federal campaign finance law actually says.
Smith vented about it in a social media post on May 20. “You’ve got a judge who contributed to Trump’s opponent presiding over a trial by a prosecutor who was elected on a vow to get Trump, for something DOJ and FEC chose not to prosecute, on a far-fetched legal theory,” he wrote on Twitter/X. “The prosecution has been allowed to repeatedly misstate the law or elicit incorrect statements of law from witnesses.”
In a news conference after the conclusion of the trial, Manhattan District Attorney Alvin Bragg proudly stated that Trump had been found “guilty of 34 counts of falsifying business records in the first degree, to conceal a scheme to corrupt the 2016 election.”
Really? Did the jury unanimously conclude that the “other crime” that elevated 34 record-keeping misdemeanors into 34 felonies was a “scheme” to “corrupt” the presidential election eight years ago?
That means the clear winner on Thursday was Hillary Clinton. The woman who wrote a book titled “What Happened” to try to explain how she lost the 2016 election to Donald Trump now has a new talking point. “The 2016 election was corrupted by a scheme to silence a bimbo,” she can explain to anyone still listening. Don’t be surprised if you hear a report that two dozen former Arkansas State Troopers have died laughing.
Although the Trump conviction may not hold up on appeal, it could have a long-lasting impact in another way. Right now, the U.S. Supreme Court is considering whether former presidents will have any kind of immunity from prosecution after they leave office.
During the recent oral arguments in the case, known as Trump v. United States, Chief Justice John Roberts raised a concern that some prosecutors might not always act “in good faith.”
There are “layered safeguards,” Michael R. Dreeben assured him. Dreeben was arguing on behalf of Jack Smith, the special counsel appointed by Attorney General Merrick Garland. Smith charged Trump in two separate federal indictments soon after the former president announced he would run again in 2024.
Dreeben said one safeguard was, “A politically driven prosecution would violate the Constitution under Wayte v. United States.” Another was, “Prosecutors take an oath. The attorney general takes an oath.”
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Later, Justice Amy Coney Barrett had a question for Dreeben. “Let me ask you about state prosecutions,” she said. “A lot of the protections that you’re talking about are internal protections that the federal government has, protections in the Department of Justice, which obviously are not applicable at the many, many, many, many state and local jurisdictions across the country. What do you have to say to that?”
“The states do not have the authority to burden federal functions,” Dreeben acknowledged.
Good to know. The court’s decision on immunity for ex-presidents will apply to everyone who held the office, now and in the future. The effort to “Get Trump” could lead to a landmark decision that forever protects all former presidents from legal harassment by partisan opponents.
That would be a perfect ending. You might say it fits like a glove.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley
