How Manhattan DA Alvin Bragg and Judge Merchan Violated the Constitutional and Legal Rights of President Donald J. Trump

photorandy2023

1 year ago

I have written several articles on our President Trump. A list of the links have been provided at the bottom of this article for your convenience. This article will, however address different aspects on President Trump’s Presidency and his campaign for the 2024 election.

On July 9, 2024 the House Judiciary Committee and its Select Subcommittee on the Weaponization of the Federal Government released an interim staff report titled, “Lawfare: How the Manhattan District Attorney’s Office and a New York State Judge Violated the Constitutional and Legal Rights of President Donald J. Trump.” The state or local prosecution of a current or former president by a popularly elected district attorney raises substantial federal interests and raises serious concerns about conflict between state and federal entities.

The report explains the several ways in which New York County District Attorney (DANY) Alvin Bragg’s prosecution of President Trump suffers from severe legal and procedural defects, including:

Bragg’s unconstitutional and unprecedented Russian-nesting-doll theory of criminal liability, in which the jury never had to reach unanimity as to each element of the criminal offenses; and
Bragg’s usurpation of the federal government’s exclusive authority to prosecute alleged violations of federal campaign finance laws and the Biden-Harris Administration’s refusal to intercede to protect federal interests.

The report also details Judge Merchan’s egregious legal rulings before and during the trial that all cut against President Trump’s rights, including:

Judge Merchan’s failure to recuse himself for manifest political bias against President Trump;
The unconstitutional gag order he imposed on President Trump during the trial;
Judge Merchan’s admission of plainly inadmissible, irrelevant, and unfairly prejudicial testimony against President Trump; and
Judge Merchan’s refusal to permit former Federal Election Commission Chairman Bradley Smith to testify as to the meaning and complexities of the Federal Election Campaign Act.

Every person admitted to practice law in New York, including elected district attorneys and appointed judges, must take a “constitutional oath of office,” swearing or affirming to “support the constitution of the United States, and the constitution of the State of New York.” By taking that oath, District Attorney Alvin Bragg and Judge Juan Merchan were legally “bound to a constitutional course of conduct.” In their politicized efforts to indict and convict President Trump, they failed their oaths of office.

Given that President Trump’s indictment was conceived in legal and constitutional error and the trial exacerbated and compounded those errors, an honest review of the facts and the law will likely lead appellate courts to vacate the conviction and dismiss the indictment with prejudice. This will go a long way in restoring the American people’s trust and confidence in our justice system, although more work is ahead. In the meantime, the Committee and Select Subcommittee will continue our oversight of lawfare and its effect on the rule of law in the United States.

On April 4, 2023, Manhattan District Attorney Alvin Bragg announced that he secured a 34-count criminal indictment against President Trump that bootstrapped misdemeanor state charges for allegedly falsifying New York business records to an ambiguous, unknown federal crime to aggravate the charges to felonies. The indictment focused on payments that former Trump employee Michael Cohen made to Stephanie Clifford (also referred to as Stormy Daniels) in 2017. Legal experts have detailed serious legal and constitutional deficiencies with Bragg’s politicized prosecution. First, as one legal scholar explained, even if the alleged bookkeeping irregularities “amounted to fraud crimes . . . the transactions in question could not possibly have had the slightest impact on the 2016 election. They didn’t occur until months later—specifically, from February 14 through December 5, 2017.” Second, “even if Bragg had jurisdiction to enforce federal campaign finance law” and “even if Bragg were correct that the . . . payments were in-kind campaign contributions that had to be disclosed,” any disclosure would have been due “several months into 2017. Again, there could not conceivably have been any impact on the 2016 election.”

In March 2023, the Judiciary Committee opened an investigation into Bragg’s unprecedented indictment of President Trump, including by requesting that former Manhattan Special Assistant District Attorney Mark Pomerantz provide relevant documents and testimony pertaining to his role leading the investigation into President Trump.4 On instructions from Bragg, Pomerantz refused to cooperate with our oversight. The Committee issued a subpoena for Pomerantz’s testimony, litigated it in the U.S. District Court for the Southern District of New York upon Bragg’s objection, and prevailed, resulting in Pomerantz appearing for a deposition before the Committee on May 12, 2023. Despite Pomerantz’s conduct at the deposition—he refused to answer the most basic of questions—the Committee’s investigation proved fruitful. On April 25, 2024, the Committee released its interim findings—in short, Bragg’s prosecution of President Trump was politically motivated, unethically and likely unlawfully focused solely on one person, and “opened the door for future prosecutions of a former president—or current candidate—that would be widely perceived as politically motivated.”

On May 15, 2024, the Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government held a hearing highlighting the weaponization of the rule of law through the use of lawfare tactics and exposing the two-tiered justice system that extends from the highest offices in the Department of Justice to the offices of politically ambitious state and local prosecutors. The Committee heard testimony from former federal prosecutor James Trusty, who testified about the dangers of lawfare, or, as Trusty put it, “an end-justify-the-means mentality” that is the “antithesis of justice.” The Committee also heard from Gene Hamilton, a former Department of Justice official, who highlighted the unprecedented use of lawfare against President Biden’s political opponents. Finally, the Committee also heard from Robert Costello, Michael Cohen’s former attorney, who testified about Cohen’s credibility and highlighted the deficiencies in Cohen’s testimony.

On June 13, 2024, the full Committee on the Judiciary convened a hearing to further examine the left’s use of lawfare to target political adversaries. The Committee heard testimony from experts that President Trump’s prosecution in Manhattan was riddled with defects. The Committee heard testimony from Federal Election Commission (FEC) Commissioner James “Trey” E. Trainor, III who explained how Bragg’s prosecution was “a significant deviation” from a well-established legal framework as Bragg “usurped the jurisdiction that Congress [] explicitly reserved for federal authorities.” The Committee also heard from a constitutional law scholar and attorney Elizabeth Price Foley who explained in detail how the trial violated President Trump’s constitutionally protected due process rights. Finally, the Committee heard from Missouri Attorney General Andrew Bailey who drew on his expertise as Missouri’s chief law enforcement officer to discuss how Bragg’s prosecution was clearly “politically motivated and replete with legal error.”

A fundamental principle of the American system of justice is that no individual is above the law. But just as important is the precept that prosecutors prosecute conduct, not individuals. Manhattan District Attorney Alvin Bragg, however, ran for office on a platform of investigating and prosecuting President Trump, bragging about his extensive experience suing President Trump. Although Bragg was initially hesitant to bring charges once he became district attorney, he faced intense political pressure to do so, including a leaked resignation letter from a special assistant district attorney who attacked Bragg for being too timid. That same prosecutor, Mark Pomerantz, later authored a tell-all book in which he took Bragg to task for failing to prosecute President Trump. Unsurprisingly, just months after Pomerantz’s book premiered—and after President Trump declared his candidacy for the 2024 Republican presidential nomination— Bragg succumbed to this political pressure and filed charges relying on Pomerantz’s theory of the case.

This interim staff report explains the several ways in which Bragg’s prosecution of President Trump suffers from severe legal and procedural defects. These infirmities include, but are not limited to:

• Bragg’s unconstitutional and unprecedented Russian-nesting-doll theory of criminal liability, in which the jury never had to reach unanimity beyond a reasonable doubt as to each element of the criminal offenses;

• Bragg’s usurpation of the federal government’s exclusive authority to prosecute alleged violations of federal campaign finance laws and the Biden-Harris Administration’s refusal to intercede to protect federal interests; and

• Judge Merchan’s egregious legal rulings before and during the trial that all cut against President Trump’s rights, including:

o Judge Merchan’s failure to recuse himself for manifest political bias against President Trump;

o The unconstitutional gag order he imposed on President Trump during the trial;

o Judge Merchan’s admission of plainly inadmissible, irrelevant, and unfairly prejudicial testimony against President Trump; and

o Judge Merchan’s refusal to permit former Federal Election Commission Chairman Bradley Smith to testify as to the meaning and complexities of the Federal Election Campaign Act.

President Trump never had a real shot at a fair trial in Manhattan. In a more neutral jurisdiction, where a politically ambitious prosecutor was not motivated by partisanship and a trial judge with perceived biases did not refuse to enforce a fair proceeding, President Trump would have never been found guilty. But Manhattan is anything but a neutral jurisdiction. President Trump promised to appeal, stating, “We will fight for our constitution. This is far from over.” But the Democrats’ use of lawfare accomplished its short-term goal—it removed President Trump from the campaign trail and diverted attention away from President Biden’s missteps and failing policies.

Since Alvin Bragg announced last year his political prosecution of President Trump, the Committee and Select Subcommittee have conducted oversight of politically motivated prosecutions and the partisan use of lawfare to achieve political ends. The state or local prosecution of a current or former president by a popularly elected district attorney raises substantial federal interests and raises serious concerns about conflict between state and federal entities. While Bragg and Congressional Democrats dismiss these concerns, the Committee has taken steps to ensure that certain federal officials may have a fair trial in a more neutral venue. The Committee’s and Select Subcommittee’s oversight work is not done, but this interim report presents the facts about how the Manhattan District Attorney’s Office and a Manhattan judge worked together to deprive President Donald J. Trump of his constitutional and legal rights.

I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake.

About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.

After listening to Monday’s opening statement by prosecutors, I still think the district attorney has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

To recap: Mr. Trump is accused in the case of falsifying business records. Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg and his team have pointed to potential violations of federal election law and state tax fraud. They also cite state election law, but state statutory definitions of “public office” seem to limit those statutes to state and local races.

Both the misdemeanor and felony charges require that the defendant made the false record with “intent to defraud.” A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and that only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. He may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan district attorney’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check: It is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

In stretching jurisdiction and trying a federal crime in state court, the Manhattan district attorney is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The district attorney responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, the prosecutors could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

Mr. Trump’s legal team also undercut itself for its decisions in the past year: His lawyers essentially put all of their eggs in the meritless basket of seeking to move the trial to federal court, instead of seeking a federal injunction to stop the trial entirely. If they had raised the issues of selective or vindictive prosecution and a mix of jurisdictional, pre-emption and constitutional claims, they could have delayed the trial past Election Day, even if they lost at each federal stage.

Another reason a federal crime has wound up in state court is that President Biden’s Justice Department bent over backward not to reopen this valid case or appoint a special counsel. Mr. Trump has tried to blame Mr. Biden for this prosecution as the real “election interference.” The Biden administration’s extra restraint belies this allegation and deserves more credit.

Eight years after the alleged crime itself, it is reasonable to ask if this is more about Manhattan politics than New York law. This case should serve as a cautionary tale about broader prosecutorial abuses in America — and promote bipartisan reforms of our partisan prosecutorial system.

Nevertheless, prosecutors should have some latitude to develop their case during trial, and maybe they will be more careful and precise about the underlying crime, fraud and the jurisdictional questions. Mr. Trump has received sufficient notice of the charges, and he can raise his arguments on appeal. One important principle of “our Federalism,” in the Supreme Court’s terms, is abstention, that federal courts should generally allow state trials to proceed first and wait to hear challenges later.

This case is still an embarrassment, in terms of prosecutorial ethics and apparent selectivity. Nevertheless, each side should have its day in court. If convicted, Mr. Trump can fight many other days — and perhaps win — in appellate courts. But if Monday’s opening is a preview of exaggerated allegations, imprecise legal theories and persistently unaddressed problems, the prosecutors might not win a conviction at all.

Resources

judiciary.house.gov, “New Report: How Manhattan DA Alvin Bragg and Judge Merchan Violated the Constitutional and Legal Rights of President Donald J. Trump.”; judiciary.house.gov, “LAWFARE: HOW THE MANHATTAN DISTRICT ATTORNEY’S OFFICE AND A NEW YORK STATE JUDGE VIOLATED THE CONSTITUTIONAL AND LEGAL RIGHTS OF PRESIDENT DONALD J. TRUMP.” By Committee on the Judiciary and the Select Subcommittee on the Weaponization of the Federal Government U.S. House of Representatives; nytimes.com, “I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake.” By Jed Handelsman Shugerman;

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