#WTH The grossness of it all

Trump trial edition

If you are interested in the Trump Stormy Daniels trial, and you should be, our podcast with the excellent Prof. Jonathan Turley is a great lesson on what went right, what went wrong, and what will happen next. Perhaps more exciting, he shares some thoughts from his forthcoming book The Indispensable Right: Free Speech in an Age of Rage. Order it now.

But I’m not going to add my proverbial two cents to the pile of “it was a travesty” pieces that have come out. OK, one cent: Yes, it was a travesty. The trial wouldn’t have happened if the defendant’s name wasn’t Donald Trump. Parenthetically, it’s probably also true that the Hunter Biden trial wouldn’t have happened if the defendant’s father hadn’t been Joe Biden. Mess with the bull, you get the horns. Anyway, that’s not why I’m loath to pile on.

Simply put, Donald Trump wouldn’t have given his enemies the opportunity to charge him if he had not been philandering with a porn actress, hadn’t needed to pay her off, and hadn’t surrounded himself with people like Michael Cohen, who, let’s face it, seems like he belongs in jail. Duh.

Yes, even the worst people deserve the best of our justice system, and there but for the grace of God go we all. Nonetheless, wouldn’t it be nice if we had a better class of candidates vying for the highest office in the land? Remember feeling this way when Bill Clinton, the Godfather of Skank, told us he hadn’t had sex with that woman, Miss Lewinsky? And how the women of Washington debased themselves in defending him, belying every one of their previous utterances on women’s rights? Yeah, me too.

Donald Trump is in some ways Clinton’s natural successor, a predator who sees women as ornaments or prey, and fidelity as something others embrace because they’re suckers. But feminist stalwarts still lionize good old Bill because their morals and standards are just partisanship in another dress. Ditto all those evangelicals whose first political outing in the Moral Majority ended up morphing into a love affair with a three-time married, serial womanizer who thinks faith is for losers and bibles are for profit.

If you hear a little bitterness in my voice, good ears. Like you, I recognize we have a choice between two flawed candidates, and that Trump may well be the lesser of two evils. (I’ll stick a comment button here for those of you who want to remind us about Trump and call me bad names. We at #WTH live to serve.) But here’s the critical question: How do we rise from the ashes of our political system to restore some quality to our political processes?

That’s not a question for a one-off post, and it’s not a question for someone who knows politics overseas better than in America (moi). But it seems to me to be a question that is preoccupying precious few of our “experts.” Is it an end to the primary system? Ranked choice voting? The role of money in our political system? The bankruptcy of the party game? I don’t have solutions, but I’d be eager to read smart input from anyone who has read something valuable.

I’d be enthusiastic about a national conversation that considered how to elevate our choice of candidates; how we could advantage likely winners and disadvantage fringe loons; and how we could actually solve national problems rather than leverage them for political edge. Think tanks do some of that work, but even at the best among them (AEI) this is a marginal conversation.

Apologies to all who came hoping for a partisan screed against Judge Merchan (who should be ashamed of himself), or another rant about Donald Trump (also). Sometimes you’ve just got to shake your head and ask how much it would be to buy an island with all of your friends and let Calgon take you away.

HIGHLIGHTS

What do you make of the verdict having sat in the courtroom throughout the trial?

JT: I have to say that sitting in the courtroom, I was really surprised. I've not been one of those that have piled on Judge Merchan. I think there are legitimate questions that have been raised about his family and his contributions.

But what I saw in that courtroom really was rather alarming. He ruled largely for the prosecution. Some of his rulings made no sense to me at all. Some of them seemed to contradict rulings that he'd just made. So he did fulfill the stereotype of his critics.

In the end, I did not blame the jury. I wrote that I was hoping for a hung jury. Hoping in the sense that I felt that the New York legal system could redeem part of its integrity if this was a hung jury. But I said they'd have to wait for instructions to make that ultimate prediction. And when the instructions came out, I wrote a piece saying, "This looks like a lead pipe cinch for conviction." I mean, those instructions were really horrible, and they left little room for the jury. This jury had been told repeatedly, and the judge had overruled objections, that there were federal campaign contribution violations in the case, and that they were ordered by Trump. The prosecutors told the jury that that's an established fact, and the judge refused to overrule the prosecutors.

How might Trump’s conviction get overturned?

JT: I laid out about four general areas of what I consider to be reversible error. The fact is that the faith in the New York legal system is at an all time low, so there may be some rough sledding for the president initially in the appeals. But this could eventually go to the Supreme Court, and I would be surprised if this verdict is upheld.

There are four different areas. One is obviously the judge. That's the most difficult to challenge, although I have to say this one is sort of off the charts in my view. The second are indeed the charges. This is a novel, unprecedented legal theory. I don't believe that Bragg has authority to litigate federal election law. Effectively, what Bragg said was, "Well, the Department of Justice and the Federal Election Commission both declined to bring even a civil fine, so I'll litigate it as the Manhattan District Attorney. I will say that there are federal election violations here." That raises serious issues.

But the instructions had other poison pill aspects to it. One was that the jury did not have to agree on what happened. So what Merchan said was the government has vaguely described three crimes. And I mean vaguely. It was barely mentioned during the trial. Certainly taxation issues I think were mentioned largely in the opening and the closing. There was no real discussion of what that really was. There was a couple references by witnesses.

And what Merchan said is, "You don't have to agree. You can split on what the second crime was." So keep in mind what this means. They took a dead misdemeanor and zapped it back into life as 34 felonies by saying that the falsification of business records was carried out to hide a second offense. So this became the question of what's that secondary offense? All the way up to closing, we had no idea.

Then finally, in the instructions, the judge said it could be one of three, federal election violations, falsification of documents, or taxation issues. Now, on the face of it, all of those are weird, right? Bragg is not supposed to try federal offenses. Neither is Merchan.

What comes next in this case and what did you think of Trump’s defense?

JT: Well, first of all, what's next is the appeal. I know that some have said you should go straight to the Supreme Court. I've been saying I'm doubtful about that. I would bet against it. The Supreme Court just turned down Jack Smith's repeated efforts to short circuit the process. I don't see them changing that approach when it's a Trump case.

Second, in terms of defense, all of us would try cases differently. And would I have done things differently here? Yes, but that's not necessarily dispositive. Honestly, with these instructions, I think Clarence Darrow would've lost this case. I mean, with this judge and these instructions, I'm not too sure what could have been done.

Will Trump be sent to prison?

JT: If you had asked me that question weeks ago, I would've said it would be just ridiculous to suggest that a jail sentence would be handed down for an elderly defendant, first offender, in a non-violent crime in Manhattan. All of those things make it just… Otherworldly. Once I saw the judge in that courtroom, I can't say with such certainty that he would not order jail. But I still believe that it would be so off the norm that even many liberals would say, "For the love of my… this is getting out of control. You would never have handed this down for anyone other than Trump."

So I'm assuming he's not going to have a sentence of jail. In most cases, I think that you would have a conditional dismissal of the type of "Go out and sin no more" order. You're still under court supervision, so if you commit a new crime, then they lower the boom. But that's usually what I think would happen. He may toy with things like house confinement. There's weekend incarcerations, there's community service. I'm hoping that he has the intelligence and the distance and the self-control not to do those things. If he does, then it can be suspended, pending appeal. And I would expect that courts would grant that, maybe not the initial appellate court, which is viewed as fairly political in New York, but later.

And what if he is sentenced to prison and wins the presidency, what happens then?

JT: Then I do think that there would be another motion to suspend any sentence. That would go to the Supreme Court. You can't keep him on home confinement. What if there's a nuclear war? What if he has to go visit a foreign leader? Does he have to call Judge Merchan and say, "Look, we have a launch from North Korea. Can I go to the bunker now?" I think courts are going to put an end to that.

Trump had a massive fundraising boost after this verdict came out, what does that say about the relationship between the American people and our judicial system?

JT: This is a terrible time for the US system. We're not a country that is familiar with political prosecutions. I think the Bragg case is most clearly a political prosecution. I don't see how people of good faith can really question that. This would not have been brought against anyone but Trump. It's never been brought before; even a CNN legal analyst has acknowledged that fact.

I've always said Mar-a-Lago is the greatest threat to Donald Trump. In some ways, the best thing going for Trump has been Jack Smith's appetite. He shouldn't have brought the classified document charges. And after they let President Biden off from his violations, Jack Smith should have moved to get rid of those and just said, "Look. I disagree, but I think that for consistency, I'm not going to prosecute him for offenses that President Biden was also accused of." If he had done that, it would leave the obstruction count, which is far more dangerous to Donald Trump, and they could have gotten a trial before the election. So in many ways, Jack Smith has had this problem in the past. He tends to really overextend himself. And so, it looks now like neither Florida nor D.C. are likely to happen before the election.

Georgia is an absolute mess, and I am not even talking about all of the salacious details. It is one of the dumbest RICO cases I have ever seen in my career. It's really not a RICO case. And I think Andy McCarthy put it best when he said, "The only connection between any of these co-conspirators occurred when they were named in the same case." And he's right; that as you look at the narrative, these people have nothing really that is coordinating or in common between them.

Many Democrats are calling on people to respect the independence of the judiciary while railing against the Supreme Court for decisions they disagree with. Do Democrats believe what they’re saying?

JT: I don't believe that these members believe what they're saying because this is an incredibly foolish effort. It's being used in this campaign to reinforce this false narrative. Look, the court just rendered a 9-0 ruling against New York for trying to pull finance and revenue support for the NRA. They continue to rule unanimously or near unanimously in the majority of cases. But they want to push this narrative that there's this cabal on a dysfunctionally divided court.

Tell us about your new book coming out and the similar challenges we have had to our judicial system in the past.

JT: So many years ago, I called this the Age of Rage, but the book points out as you did Marc, that this is not our first age of rage, that there's a cyclic aspect to this. And so, the book spends some time exploring the sort of personalities and controversies that have shaped the free speech right in the United States. And they are vivid personalities. And these periods you'll find have striking similarity to our own. And so, with each of these periods, the first victim has been free speech. And what happened with the John Adams administration is perhaps the most chilling, because the most revolutionary part of the American Revolution was our treatment of free speech. People don't realize that the First Amendment not only was unique as a statement of the protection of free expression. It still is. In fact, there's a movement in law schools to rewrite the First Amendment. It is a growing movement because it's "too individualistic." So even today, academics really recoil from this strong endorsement of free speech.

Who were some early defenders of free speech?

JT: Madison wrote a famous work in 1800 in which he referred to the monster that lives within us as the sedition prosecutions of speech. And he said, "We have to turn our backs to that monster. We have to either kill it or we need to send it away if we are to be a free people."

Well, that monster is so lurking and we've, time and time again, from Adams to Jefferson to Jackson, to Lincoln to Roosevelt, and now to President Biden, we have had that monster return. President Biden is, in my view, arguably the most anti-free speech president since John Adams. The censorship system that has been funded within his administration is unprecedented. And that also reflects the fact that the Democratic Party has become a party that has embraced censorship. It's become a virtue. In some ways, censorship has lost its stigma. I don't understand it.

Has Joe Biden attacked free speech in his presidency?

JT: There's no question in my mind about President Biden, and I say that with no sense of joy. President Biden's statements about free speech has been really breathtaking. He told social media companies that they were killing people by not censoring others, which is ironic because many of the people targeted had been vindicated on their criticism of things like the efficacy of masks and the efficacy of vaccines in comparison to natural immunities.

What happened to the academics Biden tried to censor during Covid?

JT: I've talked to many of them. These are leading academics at universities around the world. They were banned from associations. Some of them were fired. Their publications were stopped. That was all at the behest of the Biden administration, which has funded attacks that has really been comprehensive, including attacks to try to squeeze the revenue of sites that are composed of the critics of the president.

Read the transcript here.

SHOWNOTES

Trump’s New York trial is over. What’s next with his other criminal cases? (Washington Post, June 2, 2024)

Donald Trump Has Been Convicted. What’s Next? (The Dispatch’s The Collision, May 31, 2024)

Trump guilty in "hush money" trial as jury hands down verdict on felony charges (CBS News, May 31, 2024)

Trump trial jury continues deliberations in "hush money" case (CBS News, May 30, 2024)

Bragg’s thrill kill in Manhattan could prove short-lived on appeal (Jonathan Turley, The Hill, June 1, 2024)

Donald Trump’s conviction is nothing more than a ‘thrill kill’ (Jonathan Turley, New York Post, May 31, 2024)

Trump is Convicted: What Comes Next? (Jonathan Turley Blog, May 31, 2024)

Poll: 49% of Independents think Trump should drop out post-guilty verdict (Axios, June 1, 2024)

Trump campaign says it raised $52.8 million after guilty verdict in fundraising blitz (CBS News, May 31, 2024)

What the Trump verdict means for the Hill (Punchbowl News, May 31, 2024)

Guilty or not guilty, Trump verdict won’t sway most voters, poll shows (PBS News Hour, May 30, 2024)

Crocodile Tears for the Convict (Jonah Goldberg, The Dispatch, May 31, 2024)

A Guilty Verdict for Trump and Its Consequences for the Country (Editorial Board, WSJ, May 30, 2024)

Trump Trial: Judge Merchan and Donald Trump Conceal the Holes in Bragg’s Case (Andrew McCarthy, National Review, May 29, 2024)

McCarthy: "Pretty Outrageous" That Jury Doesn't Have To Agree Which Crime Trump Intended To Commit By Falsifying Business Records (Andy McCarthy on Fox News, May 29, 2024)

Trump judge faces a ‘serious problem’ if court returns guilty verdict: John Yoo  (John Yoo, Fox News, May 28, 2024)

Donating the average amount of $29 will allow me to reach thousands of voters (Fox Business, April 13, 2024)

Review of: The Indispensable Right: Free Speech in an Age of Rage (Kirkus Review, May 1, 2024)

Summary of: The Indispensable Right (Simon & Schuster, May 2024)