NY vs. Trump: A trial in search of an imaginary crime

Manhattan District Attorney Alvin Bragg’s Theater of the Absurd entered its third week, still without any evidence of crimes committed by the accused.  

Playwright Samuel Beckett would be proud. The Trump hush money trial is like "Waiting for Godot" —a chaotic and nonsensical plot of absurdist fiction. The titular Godot, of course, never arrives. It is an apt metaphor for Bragg’s case against Donald Trump. Jurors may be waiting in vain for criminal offenses that don’t actually exist in the law.  

All of which makes it a trial in search of an imaginary crime.  

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But the District Attorney seems utterly unbothered that his charges are mutable, ill-defined, illusory, or just plain absent.  Instead, he’s contrived a histrionic legal fable meant to fool the jury into thinking that Trump should be convicted for assignations with nefarious people like his ex-lawyer and convicted perjurer, Michael Cohen, as well as erstwhile porn star, Stormy Daniels.  

On Tuesday, another illusion of wrongdoing took center stage when Cohen’s banker, Gary Farro, testified that his client seemed anxious to create a shell company that was used to wire Daniels $130,000. But shell companies are perfectly legal, and there is no evidence whatsoever that Trump even knew about it.  According to last week’s main witness, former National Enquirer publisher David Pecker, Cohen acted all on his own without his boss’ knowledge.

Bragg’s courtroom smear campaign against Trump continued with prosecution witness Keith Davidson, the Los Angeles lawyer for Daniels and Playboy Playmate Karen McDougal, who purportedly had an affair with Trump. Davidson negotiated the so-called "hush money" payments for both his clients, which were completely lawful. Paying someone for their silence in exchange for a non-disclosure agreement is not a crime. Indeed, it’s a staple of thousands of settlement agreements signed every day. 

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As I noted in my last column, the DA’s inclusion of McDougal in the trial is gratuitous, irrelevant, and prejudicial. Why? Because Trump refused her demands for money in what smacks of extortion. He never doled out a penny. She’s named nowhere in the indictment, and Trump committed no crime in connection with her. But that didn’t stop Bragg from introducing otherwise inadmissible evidence to vilify the defendant.

Prosecutors also exploited the McDougal-Daniels imbroglio to backdoor a prominent mention in court of the infamous "Access Hollywood" tape that proved damaging to Trump just weeks before the 2016 election. Such evidence should never be permitted since its scant probative value is materially outweighed by the prejudicial effect on the jury. No matter. That’s exactly what Bragg wants.     

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The District Attorney’s strategy is to stain the defendant with salacious stories to create a false impression in the minds of the jurors. In a normal courtroom with a fair judge, it would be excluded without debate. But in Bragg’s Kabuki Theater everything is allowed, and every prosecutorial deception is a Trump chimera. He must be bad, don’t you know, because he fraternized with scandalous people.    

It doesn’t matter to Bragg that Trump perpetrated none of the crimes alleged during opening statements or that any guilty verdict will inevitably be overturned on appeal. He doesn’t care about the damage his meritless case is doing to the legal system. The DA’s objective is to sully the presumptive GOP nominee for president to unduly influence the upcoming election.  It’s a politically motivated prosecution and a disgraceful abuse of the rule of law.

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Any honest, knowledgeable, and intelligent judge would have long ago tossed the case. Instead, it was given to Juan Merchan. His conspicuous bias against Trump is exceeded only by his seeming incompetence.  

For proof, look no further than his unconstitutional gag order prohibiting Trump from commenting about witnesses like Cohen and Daniels. They are not gagged and have been free to trash Trump publicly while profiting financially off the hatred they regularly spew. But Trump is gagged from responding to defend himself in the court of public opinion as he runs for president.  

At the conclusion of a hearing on Tuesday, Merchan fined the defendant $9,000 for simply reposting comments that other people already said or wrote publicly. It was the maximum amount that could be levied under criminal contempt laws and is mere "chump change" to a billionaire. But the judge then threatened to jail Trump if he violates the illegitimate gag order again. That won’t happen, because not even Merchan is that dumb. On second thought…   

Make no mistake, Merchan’s poorly worded, vague, and semi-literate orders muffling Trump are a prior restraint on free speech that is protected by the First Amendment. There is no exception in the Bill of Rights for defendants in criminal trials. But clueless judges like Merchan often shred constitutional rights with lawless gag orders because they are arrogant and imperious. They are bullies who know that by the time there’s a successful appeal, the trial is over and the arguments are rendered moot. So, they get away with it, which only emboldens them.

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It should be pointed out that Merchan is an "acting" judge, which is a felicitous description for a jurist who appears deeply unqualified to preside over the trial of a former president of the United States.  Oh…and he just happens to be the same judge who presided over two other Trump cases.  A coincidence?  Hardly. What are the odds? Common sense and the law of averages make it highly improbable, since there are more than 100 trial judges in New York City. 

Bragg went "judge shopping" and got what he wanted.

A month ago, I wrote that Merchan was required to recuse himself. His adult daughter has an economic interest in her father’s case, which creates a disqualifying conflict of interest for the judge.  As a political activist, her prominent consulting firm reaped millions of dollars through solicitation mailings that cited the Trump trial over which her dad presides.

Merchan’s recusal is mandatory, not voluntary, under the New York Code of Rules & Regulations, 22 NYCRR 100.3 (E).  Separately, even the appearance of impropriety arising from a perceived conflict is sufficient for disqualification under the Rules of Judicial Conduct. Yet, Merchan ignored ethical rules and refused to step aside despite repeated petitions by the defense to do so. Even worse, the judge has gagged Trump from even mentioning his daughter and her financial interest in the case.  

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The jurors may not know it, but the fix is in. Trump is being prosecuted by an unscrupulous D.A. who campaigned on the promise to target the former president.  The prosecutor is aided and abetted by a hopelessly biased judge who seems determined to help engineer a conviction despite a paucity of crimes committed.  

Alvin Bragg’s Theater of the Absurd is an insult to the principles of justice that Americans hold dear.

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