Former President Donald Trump’s defense has rested. Jury deliberations will begin next Tuesday.
Trump did not testify. We don’t know why.
The defense didn’t call former FEC Commissioner Bradley Smith because Judge Merchan limited the scope of his testimony:
“Judge Merchan has so restricted my testimony that defense has decided not to call me. Now, it’s elementary that the judge instructs the jury on the law, so I understand his reluctance,” former FEC Commissioner Bradley Smith posted on X on Monday.”But the Federal Election Campaign Act is very complex. Even Antonin Scalia – a pretty smart guy, even you hate him – once said ‘this [campaign finance] law is so intricate that I can’t figure it out.’ Picture a jury in a product liability case trying to figure out if a complex machine was negligently designed, based only on a boilerplate recitation of the general definition of ‘negligence.’ They’d be lost without knowing technology & industry norms,” he continued.Smith is an election law expert who Trump has called the “Rolls-Royce” of experts in his field, but he will not testify after Judge Juan Merchan ruled that Smith could speak before the court on the basic definitions surrounding election law but not expand beyond that scope.
Trump faces 34 charges of falsifying business records in the first degree. Manhattan DA Alvin Bragg has to prove that Trump falsified the business records “in furtherance of another crime: conspiracy to promote or prevent election.”
Smith previously wrote in The Federalist:
Misreporting business expenses is normally, at most, a misdemeanor. Bragg seeks to ratchet it up to a felony here by arguing that the misreporting was done to cover up a crime. That alleged crime is a violation of the Federal Election Campaign Act (FECA). The theory is that Trump’s payments to Daniels were campaign expenditures and thus needed to be publicly reported as such. By not reporting the expenditure, the theory goes, Trump prevented the public from knowing information that might have influenced their votes.There is one big problem with this theory: The payments to Daniels were not campaign payments.
The potential jury instruction states: “If the payment would have been made even in absence of candidacy, payment should not be treated as contribution.”
The defense called attorney Robert Costello, an informal advisor to Michael Cohen, to the stand in the hopes of discrediting Cohen.
Costello claimed that Cohen told him that Trump did not know about the $130,000 payment to Stormy Daniels.
It might have backfired due to lawyer retainer agreements. (This will come up below in the jury instruction debate.) From The Washington Post:
But Costello said that in a meeting with Cohen in May 2018, soon after their first meeting the month before, Cohen was given a retainer agreement and “he stuck it in his briefcase, said ‘I’ll look at it later.’ Every time [Costello associate] Jeff Citron asked him about it, he gave us an excuse.”Costello said he continued to email and text with Cohen, including a reference to “back channel” communications with Rudy Giuliani, who was then working as a lawyer for Trump. Costello said Giuliani used the “back channel” term.Costello also acknowledged he was concerned that Cohen hadn’t paid him or signed the retainer. Finally in August 2018, Cohen sent an email telling Costello, “you do not and have never represented me in this or any matter.”Costello said that was “false.”Assistant District Attorney Susan Hoffinger then put the retainer agreement for Cohen in front of Costello. He admitted that Cohen never signed it.
Costello told the jury he never tried to pressure Cohen into doing anything. Trump’s lawyers wanted clarification about Costello’s meeting with Cohen, but Merchan sustained all of the prosecution’s objections.
The prosecution, defense, and Judge Merchan debated jury instructions on Tuesday afternoon. Merchan sided with the prosecution regarding requests.
It’s disturbing, to say the least. I swear if they come back with a guilty verdict, it will be overturned in appeals courts.
Georgetown law professor Jonathan Turley posted that the prosecutors wanted to change the language. Language is important in law.
A powerful language argument centers around “willfull” and “unlawful.”
The defense wants the jury to know that they “must find the higher standard of a crime for this to be a criminal violation.” It includes a “mere presence” charge for the jury to understand that even if Trump was in the room where discussions took place it does not show intent.
The prosecution argued it could “mislead” the jury.
The defense then wanted the jury to know that Trump could spend any amount of his own money on the campaign, and there were no limitations.
The prosecutors described the language as “extraneous” and confusing.
Merchan agreed and refused to insert the lines from actual regulations.
The next round focused on what Smith would have included in his testimony concerning First Amendment rights activities. Turley noted that the prosecution’s efforts show it is a loose case.
The prosecutors wanted to add “reasonably forseeable” to the jury language:
After lengthy and complex discussion, Justice Merchan responds to a request by prosecutors — that language be included in the jury instructions suggesting it was “reasonably forseeable” that false records would be created as a result of Trump’s conduct — by saying that he’s inclined not to include it. But he reserves judgment for now.It seems like, on the knottiest issues, Merchan is holding back from making decisions, giving himself time to study the issues further.
Turley also found the debate around “accomplice as a matter of law” troubling and dangerous:
…Now they are dealing with “accomplice as a matter of law.” This is a dangerous issue because the prosecutors have been strongly suggesting that Cohen’s convictions shows election violations. Merchan says that the government is “playing with fire” in again seeking to raise the crimes by Cohen in this way…
The defense wanted more specifics regarding the instruction to pull from statutory commentary on the meaning of “intent of fraud.” Merchan said no and sided with the prosecution.
The defense asked to strike language regarding “causing the causer” since it could confuse the jury.
Merchan appeared to side with the defense but said he would take it under consideration.
The defense wanted to strike “intent to commit or conceal another crime” because the government does not have to prove it.
Turley pointed out it can mislead or shift the burden.
The government wants it in. Guess how Merchan ruled? For the prosecution.
The defense wants the jury to know that retainer agreements do not have to be in writing. The prosecution says otherwise.
The defense wanted a spoliation (act of ruining something or taking something by illegal or unethical means) instruction because of changes to Cohen’s cellphone.
Trump’s defense requested a guilty verdict come from an unanimous jury that “Trump had falsified records to conceal a conspiracy to win an election by unlawful means.” They also want the jurors to unanimously agree “on what those unlawful means were.” Neither one is required by law.
The prosecution said no because Trump should be treated like any other defendant.
Merchan sounded like he agreed with the prosecution: “There’s no reason to rewrite the law for this case.”
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