At last, we can see Alvin Bragg's underlying criminal theory: he doesn't have one. Bragg and Judge Merchan are running the real trial in the court of public opinion, not to deliver justice but to hurt Trump's presidential campaign by branding him a convicted felon during the election. They seek to do this by lying to the jury -- for example, by pretending to have a criminal theory.
The prosecution rested their case without specifying the second crime, nor giving a shred of evidence for the first: even if we took Michael Cohen's testimony at face value, ignoring that he's a serial perjurer who confessed to six different felonies on Monday morning alone, his claim that Trump himself ordered the monthly payments that were calculated from Cohen's loan reimbursement demand and deemed them “legal fees” would not constitute a crime.
That case is dead in the water on appeal, but Merchan's parallel trial, which has little to do with established law and instead runs on innuendo and vagaries, aims for a temporary conviction. In it, Cohen and David Pecker explain election law to a rigged jury while Merchan allows the prosecution to dazzle them with inadmissible evidence and irrelevant, noncriminal details couched in nefarious-sounding terms like “hush money” and “catch and kill,” all the while keeping crucial information like Cohen's SDNY charges and Brad Smith's expert testimony on actual election law from reaching the jury.
Merchan reneged on his promise to release the jury instructions by Thursday night, apparently to prevent lawyers from picking apart his instructions so jury members don't find out how preposterous they are, because they're going to read the news and talk to friends, family, and co-workers in the week Merchan gave them off.
That's why he gave them the week off.
Merchan and Bragg are attempting to fool the jurors into a guilty verdict by feeding their bias and denying them the information to make an informed decision. The second, “underlying” crime has not been named, and Merchan just told the jurors it can be whatever they want it to be and turned them loose for a week, during which they will undoubtedly hear of and read news reports charging Trump with all manner of fake crimes, any one of which they're now free to consider Trump's underlying crime.
If they convict him, Harry Litman thinks (13 min.) it will take “a few months” to move Trump's case from “bail pending appeal” to the appeals process, which would land Trump in the middle of the summer before the appeal is filed, after months of wall-to-wall media coverage drilling Trump's “Convicted Felon” status into the public's brains.
The underlying charge, then, on which the validity of the case relies, is literally anything, and Bragg's charges only exist in the mind of the juror.
In the pretend trial, which is to say, the one that's based on the law, the prosecution's arguments start to take shape if you look at things as they are. It's a scoundrels' court and an organized crime racket. The first sign of that is Merchan: if N.Y. cases are assigned randomly, as they're supposed to be, how was the same judge picked for Donald Trump, Allen Weisselberg, and Steve Bannon's trials?
It harkens back to 2017, when Judge Emmet Sullivan was assigned to General Flynn's case six months after being assigned to Blumenthal v. Trump. General Flynn was prosecuted by Robert Mueller during the Russia Hoax after taking the National Security Advisor position under Trump. He pleaded guilty and the judge accepted it, only to mysteriously recuse himself and reassign the case to Sullivan, who repeatedly postponed sentencing until the DoJ ordered the case dismissed altogether, at which point Sullivan refused to. He was as bad as Judge Merchan, and it seemed he was assigned to the case for that reason.It just so happens that Trump's NDA Trial was also set into motion by Mueller during the Russia Hoax, who referred Michael Cohen to the SDNY, ostensibly for his dealings with Russians (which were completely made up). They raided his hotel and caught him in a perjury trap, supposedly, over a Trump Hotel project in Moscow.
But Cohen committed bank fraud and tax evasion to the tune of over $4 Million, faced 4-5 years in prison and they had him dead to rights. That's why he told the SDNY in front of Bob Costello he'd do anything to stay out of jail. The purpose, of course, as Costello said was to get him to roll on Trump, but he didn't have anything on Trump, and you won't get a plea deal if you have nothing to offer. The charges were serious, as the SDNY stressed in his case file, and Cohen was desperate to stay out of jail. Costello advised him, the SDNY wanted dirt on Trump.
So Cohen pleaded guilty to a campaign finance violation, an insignificant charge next to his others. Andrew McCarthy, the former SDNY prosecutor who wrote the book on this, doubts they would have charged it at all otherwise. He was trying to help them “Get Trump” in exchange for leniency.
In the end they declined to press charges, probably because putting Cohen on the stand themselves was too risky, and he got a three-year sentence but served most it under home arrest. He says they double-crossed him, but this looks to me like a ploy to make his testimony look sincere, not purchased by letting him stay out of jail.
Cohen's guilty plea, McCarthy stresses, does not actually mean he is guilty, as neither judge nor jury looked at his case. The plea is only admissible in court to impeach Cohen as a witness; it certainly can't be used to imply Trump's guilt in the same crime by association. But that's exactly what N.Y. did and Merchan allowed.
To convict Trump, in theory, they must prove he ordered the bookkeeping, knew the rules, and intended to defraud, and a target of the fraud was harmed; that the legal fees truly were loan reimbursements and weren't for legal matters; and that he did it to conceal unreported campaign finance payments.
Bragg hasn't done any of that and the finance charge is impossible, which voids everything. Trump met Cohen and Weisselberg in January, when the election was over and the campaign finance reports for that period weren't due yet. He could have simply repaid Cohen and reported it, which would make no difference to the election anyway, as it would be over.
Further, Cohen was his lawyer: you don't need a written retainer to establish that, nor must a lawyer be currently working to be on retainer. Cohen agreed to be Trump's personal attorney, told people he was, and sent invoices that said he was on retainer. He says he wasn't Trump's lawyer, but he perjured himself saying the same thing about Costello.
It's all a big fat lie and the DA's office knew Cohen would tell it. Mark Levin calls that, “suborning perjury.”
I'm not sure that goes far enough. Perhaps the most important thing in Costello's testimony is that he showed Cohen's record to Bragg before the indictment, which never should have been. I'd call that, evidence of RICO.
