Two of the primary themes of the Republican attack on the Trump verdict in New York is that the case was too trivial to be brought and that, considering the magnitude of the possible consequences, the prosecution was unfair and politically inspired by the District Attorney of New York County in order to affect the election. These arguments smack of the concept that because of who the defendant is and how he is situated in the politics of today, he is above the law and should have been given a free pass on criminal acts because of the possible grossly disproportionate outside effects a criminal conviction on minor felonies would have on the country as a whole. (In other words, they could affect his election chances.)
It is interesting that I haven’t heard any such complaints from Republicans (or Democrats for that matter), both before and after the conviction of President Biden’s son on three felony counts of lying on his gun application (about his drug use) and subsequently obtaining a gun license. The difference between Trump and Biden could not be more obvious. President Biden has said he won’t pardon his son, that he loves him and stands behind the legal system. The ex-president pardoned his friends and other pro-Trump political colleagues and regularly claims that the rioters on January 6 are heroes and promised he would pardon them if elected. A few days ago he called them “warriors”, restated how unfairly they have been treated, and blamed the Capital Police for instigating the insurrection. Incredible on its face since 600 or so of these “heros” pled guilty pre-trial. Biden will uphold the law; Trump will corrupt it and use it for vengeance and to tear it down to benefit himself and those he deems worthy.
Not to bore you with a lengthy list of Trump’s statements on the unfairness of the law as it relates to his acolytes and himself, I merely cite a truncated list of Trump employees, followers, campaign workers, and Trump administration employees who have been indicted, some already convicted, and some pardoned: Roger Stone, Rick Gates, Rudi Giuliani (disbarred in Washington and awaiting criminal trial), Jeffery Clark, John Eastman, Mark Meadows, George Nader, Paul Manafort, Michael Cohen, Michael Flynn, Alan Weisselberg (twice), George Papadopoulas, Tom Barrack, Tom Broidy, Peter Navarro (now serving four months and proud of it), Steve Bannon (about to serve four months and also proud of it); 578-plus individuals who have plead guilty in relation to the January 6 attacks; 78-plus individuals who have been found guilty after trial; and about 400 more charged and awaiting trial. I have shortened the list and have not included two congressmen who were convicted of various crimes and were the first to endorse Trump, numerous other attorneys and election officials who worked on his attempts to submit false electors and other officials whom he claimed have been unfairly treated. I suggest if you are interested in what Trump has said about these individuals, it is easily searched on the internet. Needless to say, he believes them all to be as pure as the driven snow. But I digress.
The Trump charges in New York were not an aberration, and there have been numerous analyses which show just that. (Look at justsecurity.org for one such review and an analysis of prior prosecutions.) He is being treated as any other person who has committed the acts for which he was convicted. He deserved no special treatment, and the court was clearly aware of the significance of the case and never sentenced him to jail for the 12 times he was found in contempt for violating a gag order which was upheld in the Appellate Division. This leniency—and it was lenient—was both intelligent because of his unique political situation and removed the issue from any possible appeal of his conviction. It is virtually unheard of for a defendant to violate a court’s order on multiple occasions and be held in contempt and not be incarcerated.
The defendant was tried and convicted by a jury on 34 counts of falsifying business records in the first degree. The speed of the verdict was stunning, considering there were 20 witnesses, emails, and other non-testimonial evidence. The statute has been used and upheld often since its inception. Most cases are pleaded out by defendants, since many of the cases have overwhelming evidence and prosecutors will analyze the them and occasionally offer a misdemeanor plea of falsifying business in the second degree. Apparently there were no plea discussions prior to trial since Trump insists he did nothing wrong and the case is a witch hunt. His attorneys also did not request a jury charge on the lesser crime of a misdemeanor false filing (which is raised to the felony charge if the defendant used the false filing to facilitate another crime, here election fraud under New York Election Law Section 17-152).
As a criminal defense lawyer, I see some interesting appellate issues centering around the judge’s instructions to the jury and the statute which in New York does not require the state to assert what particular crimes the defendant violated to raise a misdemeanor false filing to a felony and also does not require jury unanimity as to what particular crimes the defendant was guilty of to attempt to rig an election. The Election Law requires a predicate legal violation of some other law as part of a conspiracy to elect or deny another candidate’s election by “unlawful means.” The judge never specified what the unlawful means were, which left jurors the right to decide individually what illegal means the defendant used. The argument is that this deprived the defendant of his right to conviction by a unanimous verdict since individual jurors may have found different “illegal means.” All interesting, and also the reason why we have appellate courts.
The foregoing is why the rule of law, an independent judiciary, juries, and an uncorrupted independent justice system is perhaps the only thing standing between our democracy and the dictatorship of a demagogue. Trump has announced he will seek retribution and has repeatedly denigrated a system which has provided him and his minions with fair trials in his numerous cases. Those cases most recently include two civil judgements for sexual assault and fraudulent business practices totaling about $550,000,000; three criminal cases in federal courts in Florida and Washington, D.C.; and in state court in Georgia. He has also lost 61 state and federal court cases throughout the country in attempting to overturn the 2020 election (not one court, including the Supreme Court and over 300 state and federal judges, found even enough evidence to hold a fact-finding proceeding).
Trump continues to claim that every single one of these cases is a witch hunt, filed and tried by corrupt judges, prosecutors, and law-enforcement personnel who are all doing the bidding of his Democratic opponents. He has not commented on why many of these alleged miscreants are Republicans, often in Republican states. He has promised that if elected he will use the courts and federal prosecutors for retribution and as weapons to advance his interests and those of his supporters. Perish forbid if any of us would be tried under the corrupt system which he is advocating.
Before the Trump presidency, many of us warned that if Trump won, Roe would be abolished. He promised to appoint conservative judges to assure that. He did, and it was. Words have meaning, I believe him when he says what he will do. It is far too dangerous not to believe his rants about his intended total corruption of justice in the United States. We have been warned again, we should take him at his word.
