They ‘zapped a dead misdemeanor into life’: Jonathan Turley
George Washington University law professor Jonathan Turley shares his take on the NY v. Trump trial and the jury instructions on ‘Special Report.’
With closing arguments scheduled for Tuesday, May 28, the prosecution of former President Donald Trump will finally head to a jury. Judge Juan Merchan has refused every opportunity to bring an end to this politically manufactured prosecution. Now it will be up to 12 New Yorkers to do what neither the court nor the prosecutors were willing to do: adhere to the rule of law regardless of the identity of the defendant.
Merchan has allowed the government to bring back into life a dead misdemeanor and convert it into 34 felony counts of falsifying business records in the first degree. To accomplish this legal regeneration, Manhattan District Attorney Alvin Bragg has vaguely referenced a variety of crimes that Trump allegedly was trying to conceal through the business record violations.
The problem is that he has left the secondary crime mired in uncertainty to the point that experts on various networks are still debating what the underlying theory is in the case.
Indeed, Bragg is expected to finally state with clarity what he is alleging ... at the closing arguments of the case.
Michael Cohen is cross examined by defense lawyer Todd Blanche during former U.S. President Donald Trump's criminal trial (REUTERS/Jane Rosenberg )
In the meantime, the prosecution is pushing to make it easier for the jury to convict. First, they have vaguely referenced a variety of possible offenses from tax to election violations. Bragg initially laid out four possible predicate crimes. It is down to three – a tax crime and violations of state or federal election law.
Merchan has ruled that the jury does not have to agree on what crimes were being covered up so the jury could literally have three different views of what happened in the case and still convict Trump.
Prosecutors are also seeking to effectively shorten the playing field by allowing the jurors to convict on a lower standard of proof for the key term in using "unlawful means." The defense wants the jury instructed that it must find that such use of "unlawful means" was done with willful intent.
The prosecutors do not want to use that higher standard. For the defense, it is effectively reducing the field to the end zone to make it easier for the prosecution to score.
In the last few days, the Bragg strategy has come into sharper focus in one respect. Bragg is not counting on the evidence or the law. He is counting on the jury. Call it the Lawrence O'Donnell strategy.
After Michael Cohen imploded on the stand in the trial, even experts and hosts on MSNBC and CNN stated that his admissions and contradictions were devastating. Cohen is not only accused of committing perjury in his testimony, but he matter-of-factly detailed how he stole tens of thousands of dollars from the Trump organization.
After being disbarred and convicted as a serial perjurer, Cohen waited for the statute of limitations to run on larceny to admit that he stole as much as $50,000 by pocketing money intended for a contractor.
Liberal commentators acknowledged the fact that Cohen had committed a far more serious offense than the converted misdemeanor against Trump (but was never charged). Yet, one figure stepped forward to assure the public that all was well.
MSNBC's Lawrence O'Donnell defended Michael Cohen. The better question is if the jury will look at the world the same way. (Screenshot/MSNBC)
MSNBC host O’Donnell said that he watched the testimony and that Cohen did wonderfully. Keep in mind that Trump’s lawyer Todd Blanche asked Cohen point blank: "So you stole from the Trump organization, right?" Cohen answered unequivocably: "Yes, sir."
O'Donnell, however, rushed outside to declare that Cohen was merely acquiring a bonus that he thought that he deserved as a type of "self-help":
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"Cohen [was trying] to rebalance the bonus he thought he deserved. And it still came out as less than the bonus he thought he deserved and the bonus he had gotten the year before."
In other words, he first determined that his employer should pay him more and then elected to lie to his employer and steal the money. It is akin to New Jersey Democrat Sen. Bob Menendez claiming, in his nearby trial, that the gold bars and cash found in his home were just his effort to secure a well-deserved bonus for his public service.
O'Donnell was widely mocked for his galactic spin. However, he reflects the greatest danger for the Trump team. O'Donnell was showing a type of willful blindness; a refusal to acknowledge even the most shocking disclosures in the trial.
Some of the jurors admitted that MSNBC is one on their news sources and they exhibit the same all-consuming O'Donnell obsession with Trump. If so, they could listen to contradiction to contradiction and simply not recognize them like the MSNBC host. For some, Cohen could burst into flames on the stand but their eyes will not move from the person behind the defense table.
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Many viewers have been raised in an echo chamber of news coverage where they avoid opposing facts on both the left and the right. They actively tailor their news to fulfill a narrative or viewpoint. A jury of O'Donnell's peers would convict Trump even if the Angel Gabriel appeared at trial as a defense character witness.
It is the ultimate jury instruction not from the court but from the community. With jurors "back in the world" for six days and going to holiday cookouts and events, they will likely hear much of that social judgment and the need to "rebalance" the political ledger through this case.