The Legal Issues In Trump's New York Trial, In Detail

With the start of the Trump New York trial, the legal theories behind the various Trump lawfare cases are beginning to become clear. Alan Dershowitz gives a 30,000 foot interpretation in this YouTube video. At 7:28, he gives a simplified version of the prosecution's strategy:

Today was the first, pretty much, day of trial for Donald Trump. There's only one problem withthe trial: no reasonable person can figure out what the crime is. For example, today the witness was this guy Pecker from the National Enquirer, this kinda rag, that does "catch and kill", yuou know, he makes money by geting rich people to pay him to buy stories from people who are going to be exposing famous people, and then he buys the story and gets an exclusive with the accuser, and then doesn't run the story.

A pretty sleazy journalism, not a crime! Why did we have a whole day of testimony on something that may be immoral but isn't a crime? And in the next days, we're gonna hear from Stormy Daniels, who'll say, "I got paid hush money", even though she denied it earlier, "becaujse I had sex sith Donald Trump", even though she denied that earlier, but it's not a crime.

. . . They took a minor state misdemeanor well past the statute of limitations . . . . If you list something in a corporate expense form as a legal expense, buit it really was more of a political expense -- people do that all the time. . . . they created this felony out of that by saying, "but his real purpose was to fool the voters and to create election fraud", a federal offense, and so he committed a state misdemeanor in order to commit a federal crime.

But I don't find this satisfying in regard to the actual legal issues, and more important, the options available for Trump to defend the case. This piece delves farther into the complexities:

If you’re looking for the clearest statement of Bragg’s legal theory, you can find it in a November 2023 court filing opposing Trump’s motion to dismiss the case, along with Merchan’s ruling on that motion.

. . . In his filing, Bragg sets out four potential object offenses: violations of federal campaign finance law under the Federal Election Campaign Act (FECA); violations of New York Election Law § 17-152; violations of federal, local, and state tax law; and additional falsifications of business records outside the Trump Organization. Merchan allowed Bragg to move forward with the first three theories, but tossed out the last one.

. . . Let’s begin with that last offense. The underlying conduct here concerns records generated not just in the Stormy Daniels payment, but also in the course of another two additional efforts to squelch stories that might have harmed Trump—in both instances, with the central involvement of American Media Inc (AMI), the parent company of the National Enquirer tabloid. The first story, which turned out not to be true, concerned an allegation by a Trump Tower doorman that Trump had fathered a child out of wedlock; the second was to Karen McDougal, a former Playboy model who says she had an affair with Trump. Trump, Bragg alleges, coordinated these payoffs with David Pecker, who purchased the rights to these stories with no intention of ever publishing them—a so-called “catch and kill.”

But as Dershowitz points out, "catch and kill" isn't a crime. The link continues,

. . . More central to Bragg’s legal theory are violations of federal election law under FECA.

. . . Bragg is arguing that Trump falsified the Trump Organization’s business records with the intent to criminally violate FECA. Ruling on Trump’s motion in limine, Merchan held that Bragg may not point to Cohen’s guilty plea or the Justice Department or FEC agreements with AMI as themselves evidence of Trump’s guilt, but that the district attorney may offer “testimony about the underlying facts … provided the proper foundation is laid.”

Trump has leveled multiple legal challenges against Bragg’s use of FECA as an object offense, arguing in his motion to dismiss that a violation of federal law can’t serve as the “other crime” under § 175.10. Merchan, however, held it could. Trump also argued that FECA preempts state law and thus rules out prosecution under § 175.10 with FECA as the object offense. Merchan rejected this argument as well[.]

. . . This brings us to the final potential object offense, and the one that seems to bear the most weight in Bragg’s presentation of the case so far: New York Election Law § 17-152, a misdemeanor offense that prohibits “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.”

. . . During opening statements on April 22, prosecutor Matthew Colangelo emphasized the role of § 17-152 in the district attorney’s case, declaring, “This was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected.” Senior Trial Counsel Joshua Steinglass further underlined the importance of the statute the following day, describing § 17-152 as “the primary crime that we have alleged” as an object offense. “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016,” Steinglass said.

. . . But § 17-152 requires that a conspiracy be carried out by “unlawful means”—so what “unlawful means” is Bragg alleging? Colangelo . . . gestured at this during his opening statement, describing the conspiracy as carried out “through illegal expenditures . . . using doctored corporate records and bank forms to conceal those payments along the way.”

So far, as we can see from this history, Judge Merchan and the state appeals court have consistently ruled against Trump's challenges to this theory, and this is likely to continue. Gateway Pundit has published a lengthy essay by Paul Ingrassia on Trump's legal options:

[T]he President’s lawyers have multiple grounds on which to appeal this present show trial, which makes a mockery of the rule of law currently underway in lower Manhattan.

. . . The first, more conservative approach, would be a kind of collateral attack on the proceeding – which challenges the case on grounds other than the underlying merits of the claim – through what is called an Article 78 filing under New York law. . . . Article 78 appeals would help streamline the process, given that President Trump’s case was brought in state court already, where such appeals are commonplace.

. . . President Trump’s lawyers have strong grounds to make an Article 78 appeal on the basis of the unconstitutional scope of the gag order that Judge Merchan arbitrarily imposed upon him, which fails to meet normal strict scrutiny analysis under federal law[.]

. . . Another issue that might be included in an Article 78 appeal is the issue of judicial misconduct: in other words, the conflict of interest serving as the basis for the appeal. . . . Under New York law, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…”. An important ground for dismissal is when “the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person … has an interest that could be substantially affected by the proceeding.”

One such interest that can be substantially affected by the proceeding is an economic interest. Namely, the economic interest of Loren Merchan, Judge Merchan’s daughter, who happens to fall “within the sixth degree of relationship” stipulated under the rule.

. . . Separately from the Article 78 proceeding, President Trump’s lawyers also have the option of making an interlocutory appeal directly to federal court – either to the Second Circuit or, better, Supreme Court. Under well-settled federal law, the Supreme Court has permitted interlocutory appeals from state to federal court, in the decision Lauro Lines S.R.L. v. Chasser (1989), if the appeal satisfies the three-prong test of what the High Court called “the collateral order doctrine.”

. . . In President Trump’s criminal proceeding, all three elements are easily met. The matter appealed – the recusal order – would conclusively determine the outcome of the case because if the Judge is found conflicted under New York or ABA canons regulating judicial ethics, there would be strong grounds for a mistrial. Even if President Trump’s attorneys appealed just on the gag order issue, that still would likely satisfy the collateral order doctrine[.]

. . . [T]he advantages to a state court proceeding should be placed alongside the advantages of a direct interlocutory appeal to federal court. These advantages may be described as follows: 1) even though state law is supposed to apply more generous speech protections, considering the current cast of characters in charge of New York’s law enforcement . . . it is improbable that President Trump’s state constitutional rights would be adequately protected. It would thus be incumbent upon federal actors, either judges or prosecutors, to apply New York law faithfully – or, in the alternative, use the federal standard to exonerate President Trump from the endless indignities of New York’s corrupted judicial system. 2) The second reason favoring federal appeal is that federal courts – and the Supreme Court, above all – has the greatest means to establish a national standard for the ongoing criminal (and potential other) proceedings against President Trump.

The summary of the Trump appeals against Judge Merchan in the second link above suggests that Trump's attorneys are fully aware of the basic issues, as well as Trump's continuing options. I've got to assume they're on top of strategies like an Article 78 appeal and an interlocutory federal appeal -- but in the meantime, we shouldn't minimize the effectiveness of Trump's Chicago Seven defense strategy, which is succeeding so far in making Judge Merchan recognize Trump is making a monkey of him.