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Posts tagged ‘CRIMINAL LAW’

Did the Defense Make Prison More Likely for Hunter Under the Sentencing Guidelines?


By: Jonathan Turley | June 12, 2024

Read more at https://jonathanturley.org/2024/06/12/did-the-defense-make-jail-more-likely-for-hunter-under-the-sentencing-guidelines/

For months, I have been expressing disbelief that Hunter Biden and his defense team were going to take the gun case to trial. Even on the eve of the trial, I thought that the defense might snap into sanity and plead out the case. The reason was simple. A guilty plea would have materially improved the chances that Hunter could get probation and avoid jail by accepting responsibility. Conversely, a trial in a case with overwhelming evidence of guilt would make it less likely that a judge would depart from the guidelines at sentencing. Nevertheless, Hunter went forward with a nullification strategy and, in so doing, it may have nullified his best chance to reduce the risk of jail time.

After the verdict, I have been stating that jail time is a real possibility in this case despite the fact that this is a first offender. Frankly, I do not see any real need for incarceration in this type of case and many judges would be likely tempted to grant “downward departures” in sentencing or disregard any recommended prison sentence.

It is also important to note that, after the Supreme Court’s ruling in United States v. Booker, sentencing guidelines are discretionary. Judge Maryellen Noreika could sentence him to probation in light of his struggle with his addiction and his status as a first offender (as well as the absence of other aggravating factors).

Yet, while many view this as a relatively minor offense, the sentencing guidelines do not.

Judges regularly sentence people to prison for these offenses. The sentencing guidelines put the recommendation at 15 to 21 months in prison. Moreover, over 90 percent of those convicted are sentenced to prison time.

The chances of probation are increased with guilty pleas, which generally allow for a downward departure of two levels for taking responsibility. That may not seem like a lot, but it could prove determinative for a judge on a marginal call over the need for incarceration. By pursuing the nullification strategy, Hunter lost that benefit and now would have to belatedly accept responsibility just before sentencing after putting the court and public through a trial.

If the defense reviewed Judge Noreika’s past cases, they would have seen that she takes a tough approach on gun cases. In May, she sentenced defendant Zhi Dong to a year in jail for lying about his address on a gun form. Notably, that was twice the recommended sentence of the prosecutors.

One point of distinction is that Dong purchased 19 pistols and 10 “lower receivers” rather than the single gun purchased by Biden. It is also notable that the prosecutors were only seeking six months of incarceration in that arguably more serious case.

The defense strategy also makes it more difficult for Special Counsel David Weiss, who has shown remarkable lenience at critical stages of his investigation.  It was Weiss who allowed the most serious tax offenses to lapse under a statute of limitations (despite reportedly having an agreement to extend the period). It was Weiss who sought to give Hunter an obscene sweetheart deal that would have avoided any jail time and given him immunity for all crimes.

Many remain skeptical of Weiss and his actions in this case. For that reason, the failure to plead guilty puts Weiss in a box. Given the sentencing guidelines of prison time, any recommendations for probation would be read as more favoritism for the president’s son. Weiss may feel compelled to follow the recommendations to show that Hunter is being treated the same as other defendants.

Given the calculation for the three felonies, the defense had to know that they were increasing the chances of prison time by pursuing a nullification defense. The hope was that Wilmington is Bidentown and no local jury would convict the son of the favorite son of Delaware.

It didn’t work out that way. The team seemed to overplay its hand with defenses that were so implausible as to be insulting for the jury. They suggested that Hunter might not have checked the box or signed the form during a brief window where he was not using drugs. The prosecutors demolished those defenses within two days of the trial.

Accepting responsibility after a trial does not guarantee a downward departure. For example, in U.S. v. Womack, a defendant sought a departure for accepting responsibility before trial as a drug dealer. However, he still went to trial on other issues and the trial judge refused any departure on the basis of his earlier admissions of guilt. It found that he was still minimizing his responsibility for the underlying crimes. That decision was upheld on appeal.

Now, Hunter may have painted both the prosecutors and the court into a corner. In a play for a hung jury, Hunter may have hoisted himself on his own petard. Guilt was never in doubt, but his efforts also removed any question of accepting responsibility before he was facing actual sentencing for his offenses.

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Law

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Hunter Comes Up A Donut Short of a Defense in Delaware


By: Jonathan Turley | June 12, 2024

Read more at https://jonathanturley.org/2024/06/12/hunter-comes-up-a-donut-short-of-a-defense-in-delaware/

Below is my column in the New York Post on the conviction of Hunter Biden in Delaware and how his nullification strategy may have backfired. As discussed below, empathy can turn into insult when jurors are given patently implausible theories by the defense. Hunter finally found a group of people who were unwilling to see him as immune from responsibility for his conduct. Hunter literally came up a donut short of a defense in Wilmington.

Here is the column:

The conviction of Hunter Biden on all of the federal gun counts created a surprising new precedent in Delaware … for Hunter Biden. In terms of the law, this was the easiest judgment since the Jussie Smollett verdict. (Actually the Biden jury took a third of the time with a verdict in just three hours.)

For Hunter Biden, though, this was the first time he’s ever been held accountable for any criminal conduct, be it drug use, or prostitution, or tax evasion, or violations of various federal laws. To have that moment come in the hometown of the Bidens likely only magnified the shock.

Last year, I described the growing legal problems of Hunter Biden as the cost of “legal gluttony.” The Bidens have always been adept at avoiding accountability, particularly for the extensive influence-peddling operation that raked in millions in foreign payments.

That appetite for special treatment proved the undoing of Hunter, much like his appetite in other areas of his life. Hunter and his team expected the same level of immunity when he worked with special counsel David Weiss to cut an astonishing deal to avoid any real punishment for these or other crimes. Even before the deal was cut, Weiss allowed major crimes to expire under the statute of limitations (despite having an agreement to extend that period). He also agreed to a deal that would have avoided any jail time and would have given Hunter an immunity bath that would have drowned the entire criminal code. Hunter and his legal team succeeded in securing this sweetheart deal, which shocked many of us.

More importantly, it shocked US District Judge Maryellen Noreika, who only had to question the immunity provision to have the entire agreement fall apart in open court. The prosecutor admitted that he had never seen a plea bargain like this in his long career. That’s when the legal gluttony became even more pronounced. Rather than fight to preserve key elements of the plea agreement, defense counsel said, “Just rip it up.” Later, the special counsel said the Hunter defense team would not agree to a compromise agreement and instead forced the matter to trial.

I wrote before the trial that the defense was insane to try the case rather than plead guilty. A plea would have virtually guaranteed that there would be no jail time in the case. Instead, the defense launched an open jury nullification effort to get the jury to simply ignore the evidence. In the hometown of the Bidens, this was the best jury pool that Hunter could hope for. However, the nullification strategy was another manifestation of a gluttonous appetite.

Hunter Biden was still demanding a pass in a case where guilt was unavoidably and undeniably obvious to everyone. Defense counsel Abbe Lowell made a series of defenses that collapsed within the first two days in spectacular fashion.

Lowell suggested that someone else checked the box on the form and that Hunter may have had a brief window of sobriety or non-drug use. Hunter’s own words played from his audiobook knocked down much of those arguments, and a store employee recounted watching Hunter fill out the form.

In the first interview with a juror, Fox News seemed to confirm that the Biden defense overplayed its hand. The juror raised the text messages showing Hunter trying to score drugs at a 7-Eleven. Lowell suggested that he might have been at the store buying a donut. However, the juror noted that Hunter stated in his book that the 7-Eleven was his favorite spot for buying drugs, just as his texts indicated. He clearly viewed the story as more hole than donut. It is an example of how an all-you-can-eat defense can fail to even get a donut from a sympathetic jury.

The problem now is that this all played out in front of the judge who will now sentence Hunter.

Noreika witnessed the attempt to secure the sweetheart deal and then the disaster in open court. She watched as a defendant not only refused to admit guilt but decided to put on an obvious jury nullification defense.

That history could weigh in favor of a short jail stint for Hunter, a risk that would have been effectively eliminated by a guilty plea.

Hunter will now face an even greater risk in Los Angeles on the more serious counts of tax evasion. It is, again, an open-and-shut case.

I expect that he will plead guilty in that case. If Delaware made any impression on Hunter, it is that there are real costs to allowing your appetite to exceed your limitations.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Law

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“I Take Responsibility”: Pelosi Admits Fault for the Lack of Security Precautions on January 6th


By: Jonathan Turley | June 11, 2024

Read more at https://jonathanturley.org/2024/06/11/i-take-responsibility-pelosi-captured-on-previously-undisclosed-tape-admitting-that-she-was-responsible-for-lack-of-security-precautions-on-january-6th/

For years, some of us have asked why the Capitol was so poorly prepared for the January 6th riot. As part of the coverage on that day, I remarked at the start of the protests that I had never seen the Capitol so thinly protected for a major demonstration. Some paths to the Capitol were protected by a handful of bicycle officers and thin barriers. Now, a previously unreleased video taken on Jan. 6, 2021, shows then-Speaker Nancy Pelosi, D-Calif., admitting that she was responsible for the lack of preparedness.

The video was disclosed in a posting on X by a House Republican panel.  The video shows Pelosi in an exchange with Chief of Staff Terri McCullough on the evacuation. Pelosi states:

“We have responsibility, Terri. We did not have any accountability for what was going on there. And we should have. This is ridiculous. You’re going to ask me in the middle of the thing when they’ve already breached…that, should we call the Capitol Police? I mean the National Guard? Why weren’t the National Guard there to begin with?…They clearly didn’t know, and I take responsibility for not having them just prepared for more.”

The video was never released by the J6 Committee, which was criticized for its highly choreographed and scripted hearings with little balance in the presentation of evidence. The lack of emphasis on the security issues was glaring and raised by critics throughout the hearings.

While Democrats and the media dismissed the issue and claims that Trump offered to supply the national guard, it was later confirmed that those offers were made to Congress and rejected. A report from Capitol Police Inspector General Michael Bolton also found that Capitol police were told that they could not use critical riot materials and tactics in preparation for the Jan. 6th protests.

What was so curious about the lack of precautions that morning is that the Capitol had just experienced the violence outside of the White House in the Lafayette Park protests.

To this day, the media and many members continue to repeat false accounts of the Lafayette Park. Many still have stories posted that claim that Lafayette Park was cleared for Trump to hold a photo op in front of a church. I discussed those accounts in testimony before Congress and in columns on the clearing of the Lafayette Park area. NPR still has a story on its website entitled “Peaceful Protesters Tear-Gassed To Clear Way For Trump Church Photo-Op.” More officers were injured in the Lafayette Park protests than on January 6th.

As previously discussed in repeated columns, the House Democratic leadership refused to hold a single hearing with key witnesses on what occurred before the riot. After using a “snap impeachment,” weeks went by without calling such witnesses before the Trump impeachment trial. Such evidence would have challenged the narrative and raised questions over decisions made by Congress that left the Capitol vulnerable to such an attack.

In the Lafayette Park protests, White House officials feared that the compound could be breached by violent protesters who had injured dozens of officers and engaged in arson and attacks around the White House during that weekend. They decided to clear the area to install fencing (which Congress only ordered after the Jan. 6th riot). They also deployed the National Guard and the “heavier, less lethal weapons” that the Inspector General found were denied to the Capitol Police.

Had Pelosi and others accepted National Guard support and installed fencing as was done at the White House, it is doubtful that the riot on January 6th would have occurred, or any disruption would have been far more limited in scope. The fact that the J6 Committee downplayed this major factor in the riot further undermines how the investigation was framed by the Democratic leadership. Pelosi barred the GOP members selected for the committee, hand picking two anti-Trump Republican members.

The absence of any balance on the committee was evident from the start. There was little effort to present alternative explanations or defenses to critical issues raised in hearings. No opposing witnesses were called who might contradict the narrative put forward by the Committee, including witnesses who would debunk the much-repeated, false claim that Trump wrestled with his driver to gain control of the presidential limo to drive to the Capitol.

With the Speaker admitting on tape that she bore responsibility for the lack of precautions, one would think that the J6 Committee, including then Vice Chair Liz Cheney, would consider that relevant for the public to understand the underlying facts. Instead, it was buried with much other countervailing evidence.

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Law, Political

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Laptop Deniers in Delaware: The Media Shrugs as the Biden Laptop is Authenticated in Federal Court


By: Jonathan Turley | June 7, 2024

Read more at https://jonathanturley.org/2024/06/07/laptop-deniers-in-delaware-the-media-shrugs-as-the-biden-laptop-is-authenticated-in-federal-court/

Below is my column in Fox.com on the authentication of Hunter Biden’s laptop in the Delaware trial. The government has denounced the Russian disinformation claims as a “conspiracy theory” and put on evidence that there is no evidence of tampering with the laptop. The FBI declared the laptop to be “real” and “authentic” and the court agreed. It was introduced as evidence before many reporters who previously embraced the debunked “conspiracy theory.” As discussed below, Houdini’s elephant was just revealed on stage and most of the audience looked away.

Here is the column:

Watching the coverage this week out of Delaware was like finding oneself in a parallel universe. There were ABC, NBC, CBS, the Washington Post and other news outlets reporting matter-of-factly that the Hunter Biden laptop showed no evidence of tampering and was both real and authentic.

These are the same outlets, and some of the same reporters, who eagerly spread the false claims that the laptop was “Russian disinformation.”

Yet, what followed the testimony of FBI agent Erika Jensen was absolute crickets. There was no effort to track down the signatories of the now-debunked letter from former intelligence officials just before the election. In the letter, figures such as Leon Panetta, former CIA director in the Obama administration, claimed that the laptop had all the markings of a Russian disinformation effort by intelligence services. (Panetta continued to make the assertion even in late 2023 in pushing what the federal government is now calling a “conspiracy theory.”)

  • There was no attempt by the media to confront associates of the Biden campaign (including now Secretary of State Antony Blinken) who pushed a long effort to get former intelligence officials to sign a letter.
  • There was no attempt to question President Joe Biden, who made this false claim in the presidential election to deflect any questions about the evidence of corrupt influence peddling on the laptop.

Years ago, I wrote that the Biden campaign had pulled off the single greatest political trick in history. As I wrote back then, the key to this Houdini-esque trick was to get the media to invest in the deception like audience members called to the stage.

Houdini used to make his elephant Jennifer disappear on stage every night because he knew that the audience wanted her to disappear. They were part of the act. The Bidens made the media part of the act, and these reporters have to back the illusion or admit that they were part of the deception. They are all laptop deniers, but they know that there are few who will call them to account for their conspiracy theory. Rather, it is social media where readers can see videos of leading media claiming that the laptop is the work of Russian intelligence.

In 2020, CBS News’ Lesley Stahl literally laughed mockingly at then-President Donald Trump when he raised the Hunter Biden laptop and what it revealed about the Bidens.

Figures like former Chief of Staff at the CIA and Department of Defense Jeremy Bash, who told MSNBC that the laptop “looked like Russian intelligence” and “walked like Russian intelligence.” He dismissed the relevance of the laptop before the election by declaring that “this effort by Rudy Giuliani and the New York Post and Steve Bannon to cook up supposed dirt on Joe Biden looks like a classic, Russian playbook disinformation campaign.”

Bash added that it made Trump an effective agent of Russian intelligence since he kept referencing the laptop: “[when] Rudy Giuliani suddenly comes forward with these mysteriously created emails, probably hacked through a Russian intelligence operation, we have to acknowledge the fact that the President of the United States is supporting, is condoning, is welcoming a Russian intelligence operation in 2020. … This is collusion in plain sight.”

Bash, like others behind the conspiracy theory, was later given an intelligence position by Biden.

The New York Times and The Washington Post both eventually verified Hunter Biden’s laptop after big tech dismissed the New York Post’s bombshell reporting during the 2020 presidential election. The Post reporting was famously censored by Twitter ahead of the 2020 election.

CNN’s Alex Marquardt told viewers, “We do know it is a very active Russian campaign.”

Indeed, the Washington Post has continued to suggest that this reporting was accurate. One of the leading purveyors of this false story was the Post’s Philip Bump, who slammed the New York Post for its now proven Hunter Biden laptop story.

In 2021, when media organizations were finally admitting that the laptop was authentic, Bump was still declaring that it was a “conspiracy theory.” Despite overwhelming evidence to the contrary, Bump continued to suggest that “the laptop was seeded by Russian intelligence.”

After Bump had a meltdown in an interview when confronted over past false claims, I wrote a column about the litany of such false claims. The Post surprised many of us by issuing a statement that they stood by all of Bump’s reporting, including the laptop conspiracy theory. That was in August 2023.

Of course, this trick would not have been possible without the assistance of 50 former intelligence officials who were reportedly organized through Clinton campaign associates to issue the infamous letter. These figures then continued to spread the false claim.

  • Former CIA Director John Brennan, one of the 50 who signed the letter, also claimed that the laptop bore “the hallmarks of Russian disinformation.”
  • James Clapper, a former director of National Intelligence and CNN analyst, said the laptop was “classic, textbook Soviet, Russian tradecraft at work.”
  • Members of Congress also repeated the false claims, including Rep. Raja Krishnamoorthi, D-Ill., who told the media not to join Giuliani as a “vehicle for Russian disinformation.” 
  • Rep. Adam Schiff, D-Calif., former chair of the House Intelligence Committee, insisted that the laptop was clearly “Kremlin propaganda.”
  • This long-debunked claim was even recently repeated in Congress by Rep. Dan Goldman, D-N.Y., who claimed that the laptop could not be authenticated even though it was just authenticated and introduced in a federal prosecution.

All of those who pushed what the U.S. government is now calling a false “conspiracy theory” have flourished in the wake of Biden’s victory. Intelligence officials like Bash received plum positions while others like Clapper were given media contracts. Schiff is expected to be elected to the Senate and is running, ironically enough, on his record with intelligence investigations of Trump.

Conversely, the New York Post and reporters like Miranda Devine have received no recognition for their work in disclosing the contents and defying attacks from politicians and media alike. While reporters were given a Pulitzer for reporting the now debunked Russian collusion story, Devine and others will never receive a Pulitzer for uncovering the true story behind the laptop.

Devine, the New York Post, and others simply refused to get in on the trick. As is often said, there are some facts simply “too good to check” in the media. The Hunter Biden laptop disappeared from the stage like Houdini’s elephant because the media wanted it to disappear.

The reappearance of the laptop in a Delaware courtroom might be awkward for most people, but not the media or intelligence officials or politicians who pushed the conspiracy theory. After all, they were all in on the trick. It was the voters who were played for chumps.

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Political

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Just Ask Mookie: Hunter Biden Has No Defense Other Than Nullification


By: Jonathan Turley | June 6, 2024

Read more at https://jonathanturley.org/2024/06/06/just-ask-mookie-hunter-biden-has-no-defense-other-than-nullification/

Below is my column in the New York Post on the first day of testimony in the trial of Hunter Biden. Every claim of the defense seemed to collapse in the first two days of the trial. The defense argued that Hunter did not check the box on the gun form, so the prosecutors called the employee who watched him fill out the form. It claimed he was not using drugs at the time, so the prosecutors read texts from the next day in which Hunter sought to buy crack and called a series of witnesses on his continual use of crack during the period. The defense previously claimed the laptop showed evidence of tampering, so the prosecutor called a FBI agent establishing that there is no evidence of tampering and that the laptop is authentic. The defense claimed that Hunter just wandered into the store and was pressured to buy a gun, so prosecutors called an employee who testified that Hunter came in specifically wanting to buy a gun. As previously discussed, the lack of a defense is becoming glaringly obvious as is the nullification strategy.

Here is the column:

On the first day of his trial, Hunter Biden spoke to the jury . . . against himself. The prosecutors in his Wilmington gun trial read long excerpts from Hunter’s book on his long addiction to drugs and his self-proclaimed “superpower — finding crack anytime, anywhere.”

Listening to himself was the President’s son, whose counsel had just suggested that Hunter may have had a brief moment where he was drinking as opposed to snorting or smoking.

Accordingly, defense counsel Abby Lowell suggested, Hunter did not “knowingly” deny that he was using drugs when he purchased a .38-caliber Colt Cobra revolver from the StarQuest Shooters and Survival Supply in Wilmington, Del. Somehow the argument is that — for a brief moment on October 12, 2018 — Hunter forgot that he was a superpowered junkie. The problem is that the next prosecution witness is likely to be, again, Hunter Biden.

The day after he bought the gun, Hunter was texting a guy named “Mookie” to score drugs behind a minor league baseball stadium. Mookie appears to have come through for Hunter since the next day (two days after denying that he used drugs), Hunter allegedly texted Hallie Biden that he was “waiting for a dealer named Mookie.”

Then, two days after the gun purchase, Hunter texted, “I was sleeping on a car smoking crack on 4th street and Rodney.” That corner appears less than a mile and half from the federal courthouse where Hunter is sitting. It is roughly five miles from the gun shop where he denied using drugs.

Hallie will also testify. She was the widow of Hunter’s deceased brother and started an intimate relationship with Hunter after Beau’s death. She was also allegedly doing crack. Yet, when Hallie saw the gun in the console of Hunter’s car, she had the presence of mind to realize he was an unstable addict. She took the gun and threw it into a dumpster behind a restaurant.

The brutal start of the hearing raises the question — again — of why Hunter decided to go to trial. There is no viable defense. The most that the defense can come up with is a claim that someone else may have completed the form, or that he had a moment of sobriety before heading off to meet Mookie.

In his book, Hunter describes an addiction that led him to smoke crack almost every 15 minutes. That would seem likely to come to mind when you are given a form asking, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

Certainly his need for drugs was much on Hunter’s mind when he was texting Mookie.

Indeed, not long after the purchase, the Biden family held an intervention at their Delaware home to deal with Hunter’s raging addiction.

These defenses are about as convincing as saying that your client got locked into the bank vault after losing his way to the restroom . . . hours after the bank closed.

So why present unbelievable defenses in Wilmington? Because it is Wilmington. This is Biden’s hometown. The President maintains his residence in the city and remains the town’s favorite son.

As if the jury needed any reminder, First Lady Jill Biden sitting behind Hunter brings home that this is a Biden trial in Bidentown. The combination of sympathy for a reformed addict and identification with the Bidens could be enough for a jury nullification strategy. The defense is not asking the jury to consider the evidence. It is asking the jury to ignore it.

Every juror appeared to confirm knowing someone with a drug addiction, including siblings or other relatives. Given that panel, Hunter could well take the stand to describe his addiction and lack of clarity of thought.

Hunter’s book offers moving descriptions of his struggle with addiction and could sway some jurors, especially given the relatively minor criminal charges. Wilmington for Biden is the opposite of Manhattan for Trump. This is a town that overwhelmingly voted for Biden in 2016 and 2020. It is a great jury pool for the defense. Viewed through a nullification defense, it does not matter how absurd the actual defense is in the case.

It is merely a pretense. Whether it is sympathy for a drug addict or a Biden, the defense clearly hopes that the jury will look beyond the evidence and the crime in this case.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Political

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Garland’s Moment of Truth: With the Perjury Referral, the Attorney General Faces a Clear Choice Between Principle and Politics


By: Jonathan Turley | June 6, 2024

Read more at https://jonathanturley.org/2024/06/06/garlands-moment-of-truth-with-the-perjury-referral-the-attorney-general-faces-a-clear-choice-between-principle-and-politics/

“Conscience doth make cowards of us all.” Those words from Hamlet captured the moral dilemma for many of us as we face the costs of conscience.

For each of us, there often comes a moment when our principles are put to an undeniable and unavoidable test. It may be as simple as cheating on a test, shoplifting a product, or admitting to a wrong. It is natural to want to avoid such moments, particularly when we cannot even admit to ourselves that we may not be the person we have long claimed.

For Attorney General Merrick Garland, that moment of truth has finally arrived. Garland has long maintained that he is an apolitical attorney general who does not even consider the political consequences of his actions. Over the last three years, some of us have questioned that commitment in a series of actions or, more importantly, non-actions. Yet, Garland has always been able to evade responsibility by shifting decision-making to others or claiming a lack of knowledge.

Yesterday, Garland ran out of room to maneuver when three House committees (Oversight, Judiciary, and Ways and Means) sent him formal referrals for the perjury prosecution of Hunter Biden and his uncle, James Biden. The evidence of false answers to Congress is overwhelming and Garland’s department has prosecuted Trump associates and others with far less in past cases, including the prosecution of former Trump National Security Adviser Michael Flynn.

Here is the Committee’s summary of the allegations, which I also previously discussed in a column:

During his deposition, Hunter Biden made false statements about holding a position at Rosemont Seneca Bohai (RSB), a corporate entity that received millions of dollars from foreign individuals and entities who met with then-Vice President Biden before and after transmitting money to the RSB account that then transferred funds to Hunter Biden. After deposing Hunter Biden, the Committees obtained documents showing Hunter Biden represented that he was the corporate secretary of RSB.

Additionally, Hunter Biden during his testimony relayed an entirely fictitious account about threatening text messages he sent to his Chinese business partner while invoking his father’s presence with him as he wrote the messages.  Hunter Biden testified he had transmitted this threat to an unrelated individual with the same surname. However, documents released by the Committee on Ways and Means demonstrate conclusively that Hunter Biden made this threat to the intended individual, and bank records prove Hunter Biden’s Chinese business partners wired millions of dollars to his company after his threat.  A portion of the proceeds has been traced to Joe Biden’s bank account.

During James Biden’s transcribed interview, he stated that Joe Biden did not meet with Tony Bobulinski, a business associate of James and Hunter Biden, in 2017 while pursuing a deal with a Chinese entity, CEFC China Energy. His statements were contradicted not only by Mr. Bobulinski, but Hunter Biden.  Mr. Bobulinski also produced text messages that establish the events leading up to and immediately following his meeting with Joe Biden on May 2, 2017.

These are straight-forward questions and answers. More importantly, both men knew and prepared for these questions. They were widely discussed before their testimony. They appear to have knowingly lied. The question is what Garland is now prepared to do about it.

For Garland, a bill has come due. I supported his appointment as Attorney General because I respected his integrity and intellect as a federal judge. I believed his claim that he would not allow political considerations to cloud his judgment. I grew more critical as I saw Garland struggling to avoid decisions that would work against President Biden or his family.

Now, Garland has what appears flagrant perjurious statements made by the President’s son and brother. Given the fact that these were anticipated questions, the false answers appear premeditated and egregious. Hunter and Jim Biden displayed a sense of impunity in denying facts that the committees (and many commentators) believe are well established on the available evidence. Those facts were highly embarrassing to the Biden family and they allegedly chose to lie rather than admit to them.

The fact that such alleged false statements occurred in the midst of an impeachment investigation only magnifies the concerns. This was an effort to establish the President’s knowledge of a massive corrupt influence peddling operation maintained by his family.

The gun charge in Delaware is a relatively minor criminal allegation. This is far more serious and could impose far greater punishment for the President’s son.

In the Trump cases, the Justice Department moved with impressive speed in going to grand juries against figures for false statements or contempt of Congress. There was little handwringing, no hem and hawing.

So, Garland’s moment of truth has arrived. He will either have to meet it or shrink from it. Either way, the Attorney General is about to give the full measure of himself and his office.

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Crime, Political

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Is Hunter Biden Pursuing a Jury Nullification Strategy?


By: Jonathan Turley | June 5, 2024

Read more at https://jonathanturley.org/2024/06/05/is-hunter-biden-pursuing-a-jury-nullification-strategy/

Below is my column in The Hill on the start of the Hunter Biden trial and the elements of a classic jury nullification strategy by the defense. It is not clear that it will work in an otherwise open-and-shut case, but it might. What is clear is that it may be all that Biden has short of the Rapture.

Here is the column:

There was an interesting development this week in the Hunter Biden gun trial: the fact that there will indeed be a Hunter Biden gun trial. That development is surprising only because there do not appear to be any facts in dispute in this case. And the primary witness against Hunter Biden will be Hunter Biden himself.

The sole issue in this case is whether Biden filed a false gun form (ATF Form 4473) in which, as a condition for his purchase of a .38-caliber Colt Cobra revolver from the StarQuest Shooters and Survival Supply in Wilmington, Del., he stated that he was not a user of drugs.

Biden’s counsel, Abbe Lowell, previously suggested that his client may have had a window of sobriety when he signed the form, but then returned to his addiction afterward. But then Hunter himself blew that theory away with his public comments and books. Lowell then suggested in court that someone else may have checked the box on the form.

In the interim, Lowell has brought a litany of challenges. At one point, he claimed that the government must fulfill a prior dead plea agreement. At another, he adopted an argument of the National Rifle Association challenging the underlying statute.

The defense also failed this week to call a last-minute witness who would testify that Hunter may not have known that he was an addict. The defense was accused of essentially hiding the ball with the expert’s expected testimony so Judge Maryellen Noreika barred the appearance of the Columbia professor.

Yet, again, Hunter Biden himself would have destroyed the defense. The form asks if Hunter was a user of drugs, not just an addict: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

Hunter wrote how he was a user of a wide array of drugs for years. It is hard to imagine he thought himself as clean as a clergyman in Wilmington in 2018.

So why wouldn’t Hunter just plead guilty? Even without his earlier plea deal, a guilty plea could significantly reinforce a request to avoid jail time in the case. It would also avoid an embarrassing trial for himself and his father during a presidential election.

While Hunter could always throw in the towel before the start of testimony, there is currently no discernible strategy beyond hoping that a pending case in the Supreme Court might undermine the indictment.

There may also be another possible strategy in play: jury nullification.

Unlike Donald Trump in Manhattan, Delaware is Biden country. The chance that he will get strong supporters of his father on the jury is an almost statistical certainty. In 2020, Joe Biden received roughly 60 percent of the vote over Donald Trump in the state. Having first lady Jill Biden, who is extremely popular, at the trial will only reinforce the connection.

In addition to a favorable jury pool, Biden may be hoping that testimony on his travails with drugs will prompt one or more jurors to ignore the law and vote to acquit. Notably, virtually all of the selected jurors have said that they know of someone who has struggled with drugs.

Indeed, Judge Noreika already appears to suspect such a strategy. Noreika rejected the effort of the defense to introduce an altered version of the federal firearms form created by the gun store employees. They argue that the alteration showed a political bias on the part of the prosecutors. The court found the document “irrelevant” and chastised the defense team for pursuing “conspiratorial” theories and an effort to confuse or mislead the jury.

She noted that the use of the altered form would be “unduly prejudicial and invites (jury) nullification.”

Jury nullification arguments have long been banned or discouraged in many courtrooms. Nevertheless, jury nullification has its advocates. For example, Georgetown Law Professor Paul Butler has called for Black jurors to refuse to convict Black defendants of drug crimes. Butler has said that “my goal is the subversion of the present criminal justice system.”

Hunter Biden is obviously not the primary concern of Professor Butler in the impact of drug prosecutions on the Black community. However, he has also argued that “jury nullification is just part of an arsenal of tools to end the failed “war on drugs.”

Biden’s case has all of the characteristics of a nullification defense. Even if he cannot secure acquittal, the combination of political and social elements at play in Delaware could produce a hung jury.

Trying a Biden in Delaware is a challenge for any prosecutor, even without the potential sympathies for a reformed drug addict. With the first lady sitting behind him, the family ties will be on full display. There is an understandable parental desire to show emotional support for Hunter, but prosecutors cannot be thrilled by the potential effect on jurors in the pro-Biden state.

Wilmington is President Biden’s hometown, where he still maintains a family residence. In Wilmington itself in 2020, Biden received 26,698 votes to Trump’s 3,580.

The hope is that, as President Biden once said, “Delaware is about getting everyone in the room, no matter how tough the problem, no matter how big the disagreement, and staying in the room until we figure it out.” Most everyone is in the courtroom and the hope is that at least some of these jurors will “figure it out” in their favor.

Perhaps Hunter put it best: “The single best thing is, family comes first. Over everything. I can’t think of anything that has been more pervasive and played a larger part in my life than that simple lesson.”

The defense may be hoping that, for some jurors, “family [will] come first … over everything,” particularly over the evidence.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

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Trump is Convicted: What Comes Next?


By: Jonathan Turley | May 31, 2024

Read more at https://jonathanturley.org/2024/05/31/trump-is-convicted-what-comes-next/

This morning, many of us are emerging from the late coverage last night after the conviction of former President Donald Trump on 34 felonies. I was in the courtroom for the verdict, which hit like a thunderclap (particularly after a strange snafu with the judge).  The question that everyone is asking: what happens next?

The scene in the court was a madhouse. Judge Juan Merchan told the court that the jury had not reached a verdict and would be dismissed for the day.  Many reporters in the overflow courtroom were leaving when Merchan suddenly said that there was a verdict. People came running back into the courtroom. That was followed by 34 guilty verdicts.

I am obviously saddened by the verdict, but not surprised. Until the very end, I was hopeful that there would be a hung jury, a result that could restore some integrity to the New York criminal justice system. However, I previously noted that the jury instructions made conviction much more likely. I referred to the deliberations as a legal “canned hunt” due to instructions that made conviction a near certainty.

You could feel the weight of history in the courtroom, though we still have to see what history was made. For some, it was the conviction of the first president of a felony. For others, it was the key moment where the weaponization of the criminal system became clear and inescapable. It was both, obviously. Yet, the trial fulfilled narratives on both sides.

I ran outside to join the coverage. (One humorous moment was an officer screaming at reporters piling out of the courtroom to “walk not run.” It did not work.) It looked like the final judgment with everyone panicking to find an exit.

The scene outside the courtroom was surreal. The Trump supporters were outraged. The anti-Trump protesters were ecstatic, dancing and celebrating in the street.

While I have written a book about what I have called “the age of rage,” I am always shocked by such scenes. There is a dehumanizing element of these moments as people celebrate not just the first conviction of a president but a person. Rage is addictive and contagious. That was vividly evident outside the courtroom.

So, what happens next?

Obviously, appeals will be taken. As I said last night, we must keep the faith. Indeed, moments like this require us to take a leap of faith in a nation that remains committed to the rule of law.  Manhattan is neither the entirety of the country nor the legal system. I believe that these convictions will be overturned, but it will take time. Judge Merchan committed, in my view, layers of reversible error. Eventually, this case may reach the United States Supreme Court.

It has been suggested that an appeal could be taken directly to the Supreme Court. I find that doubtful after the Supreme Court rejected an expedited process for Special Counsel Jack Smith in his federal prosecutions. It will work first through the New York appellate system.

As for the criminal process, Trump will have to meet with a probation officer for an interview. That officer will make recommendations to the court.

There is a possibility of a jail sentence for felonies that come with up to four years for each offense. Any jail sentences would almost certainly run concurrently. However, any jail sentence would be ridiculous in Manhattan for an elderly first-offender in a non-violent offense.

Consistent with his past commentary, MSNBC legal analyst and former Mueller aide Andrew Weissmann predicted that Merchan will give Trump jail time. He is not alone as legal analysts seemed to get caught up in a thrill-kill conviction.

It is much more likely that Merchan will impose a sentence without a jail sentence, though with fines. The most appropriate, in my view, would be a conditional discharge that requires Trump not to commit a new crime or face potential imprisonment.

Merchan could also tailor a sentence to require home confinement or even weekend jailing. Those options would raise serious conflicts with his campaigning and obviously, if elected, serving as president. Even the probation process will be awkward since a convicted defendant ordinarily has to get approval for any travel outside of the state from his probation officer.

Sentences can also include community service, counseling and other requirements.

After his ruling in this trial, it is impossible to rule anything out. However, any jail sentence would add even more outrage to an abuse of the criminal law system.

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The Closing: Trump’s Final Argument Must Be Clarity to Chaos in Merchan’s Courtroom


By: Jonathan Turley | May 28, 2024

Rerad more at https://jonathanturley.org/2024/05/28/the-closing-trumps-final-argument-must-be-clarity-to-chaos-in-merchans-courtroom/

Below is my column in the New York Post on the closing arguments scheduled for today in the trial of former President Donald Trump.  The column explores the key elements for a closing to bring clarity to the chaos of Judge Juan Merchan’s courtroom.

Here is the column:

With the closing arguments set for Tuesday in the trial of former president Donald Trump, defense counsel is in a rather curious position. There is still debate among legal experts as to the specific crime that District Attorney Alvin Bragg is alleging.

Trump’s lawyers are defending a former president who is charged under a state misdemeanor which died years ago under the statute of limitations. It was then zapped back into life in the form of roughly three dozen felonies by claiming that bookkeeping violations — allegedly hiding payments to Stormy Daniels to ensure her silence about a supposed affair with Trump — were committed to hide another crime. But what is that second crime? Even liberal legal analysts admitted that they could not figure out what was being alleged in Bragg’s indictment. Now, after weeks of trial, the situation has changed little.

Originally, Bragg referenced four possible crimes, though he is now claiming three: a tax violation or either a state or federal campaign financing violation. The last crime is particularly controversial because Bragg has no authority to enforce federal law and the Justice Department declined any criminal charge. The Federal Election Commission (FEC) did not even find grounds for a civil fine.

Judge Merchan has ruled that the jury does not have to agree on what that crime is. The jury could split into three groups of four on which of the three crimes were being concealed and Merchan will still treat it as a unanimous verdict.

The jury has been given little substantive information on these crimes, and Merchan has denied a legal expert who could have shown that there was no federal election violation.

This case should have been dismissed for lack of evidence or a cognizable crime. The jury will be reminded that the burden is on the government, not the defense. However, the presumption of innocence is often hard to discern in criminal cases. Most jurors believe that clients are sitting behind the defense table for a reason. That is why many prosecution offices have conviction rates in the 80%-90% range. That presumption is even more difficult to discern when the defendant is named Trump, and the jury sits in Manhattan.

Three-legged Stool

A classic closing pitch by lawyers is to use a physical object like a three-legged stool. If any leg is missing, the stool collapses.

In this case, the government needs to show that there was a falsification of business records, that the records were falsified to conceal another crime and that Donald Trump had the specific intent to use such “unlawful means” to influence the election.

Even a cursory review of the evidence shows this case does not have a leg to stand on.

The First Leg: Falsification of Records

The dead misdemeanor that is the foundation for this entire prosecution requires the falsification of business records. It is not clear that there was such falsification or that Trump has any knowledge or role in any falsification.

Witnesses testified that Trump would sign checks prepared by others and that the specific checks in this case were signed while Trump was serving as president. Some of these checks, labeled “legal expenses,” were allegedly for attorney Michael Cohen to pay off Stormy Daniels.

Most importantly, Jeffrey McConney, the Trump Organization’s retired controller and senior vice-president, testified that it was not Trump who designated these payments as “legal expenses.” Rather, the corporation used an “antiquated” drop-down menu where any payments to lawyers were designated “legal expenses.” There is a plausible reason why payments to an attorney were listed as legal expenses.

The government also cites the designation of payments to Cohen as part of his “retainer,” which included reimbursement for the payment of the Daniels non-disclosure agreement. However, that designation was the result of discussions between Cohen and former Trump Organization CFO Allen Weisselberg, who is sitting in a jail cell in New York City. The government could have called Weisselberg, but did not.

The government has made a big deal over the fact that retainer agreements are supposed to have written contracts. However, that was the failure of Cohen, who was later disbarred as an attorney.

For a businessman like Weisselberg, monthly payments to an attorney could have seemed perfectly logical. Once again, there was no evidence that Trump knew of how the payments were denoted.

The Second Leg: The Secondary Crime

The government must also show that any falsification was done to further or conceal another crime. This is where the defense needs to bring greater clarity to its own narrative. Trump’s team needs to drive home that a non-disclosure agreement is common in political, business and entertainment circles. The payment of money to quash a story before an election is neither unlawful nor unusual.

Indeed, Keith Davidson, Stormy Daniels’ attorney, described the NDA as routine and said that it was not hush money but a simple contractual transaction: “It wasn’t a payoff. It wasn’t hush money. It was consideration.”

This is where the testimony of David Pecker, the former publisher of the National Inquirer, was particularly damaging to the government.

Pecker detailed how killing such stories was a common practice at the National Inquirer and that he had done so for Trump for over a decade before he ran for president. He also killed stories for an impressive list of other celebrities, including Tiger Woods, Mark Wahlberg, Rahm Emanuel and Arnold Schwarzenegger.

Merchan has allowed the jury to repeatedly hear of “election violations,” while blocking a legal expert to explain that there is no federal election law violation. The payment of hush money is not a campaign contribution and, again, the federal government not only declined to bring any criminal charge but found no basis for even a civil fine.

Had he been allowed to testify, Bradley Smith, the former Federal Election Commission (FEC) chairman, would have explained that, even if it were a campaign contribution, it would not have been needed to be filed until after the election — demolishing the notion that this was an effort to influence an election that would have run before any filing had to be made.

The defense has to hammer away on the fact that no one has testified that it was a federal campaign violation.

Various witnesses, including former Trump aide Hope Hicks, testified that Trump was motivated to protect his family from embarrassment. She recounted how Trump even “wanted me to make sure the newspapers weren’t delivered to their residence that morning.”

Pecker testified that he previously killed stories about Trump going back over a decade. That included stories that were demonstrably untrue, such as a claim of a doorman that he fathered a child out of wedlock.

In addition to being a married man, Trump was the host of a major television program subject to a scandal clause. He was also an international businessman. Given all of those interests, it is impossible to claim absolutely that the campaign was the reason for the NDA, which was chump change for a billionaire.

The Third Leg: Criminal intent

The government spent considerable time proving facts not in dispute. There is no dispute that there was a NDA or that Trump signed checks on these payments. It is like repeatedly telling a court that a driver drove 55 miles an hour down a highway and elected to change lanes with a signal. The intent is to convince the jury that somehow proving that an NDA was paid and that an affair occurred is proof of an offense. It is not.

The supervisor in charge of processing payments said that permission to cut Cohen’s checks came not from Trump, but from Weisselberg and McConney. Trump’s White House secretary, Madeleine Westerhout, testified that it was common for Trump to sign checks in the White House without reviewing them.

The entire basis for the alleged criminal intent is Michael Cohen, a disbarred lawyer and serial perjurer. Yet even Cohen did not offer a clear basis for showing a criminal intent to use unlawful means to influence the election. Everything Cohen described could be true and only show a desire to kill an embarrassing story before an election — again, not a crime.

Cohen described the mechanics on the payments, but the only person who discussed these payments in detail with Cohen was Weisselberg.

Even liberal experts on CNN admitted that Cohen was trashed on the stand. The only crime that was clearly established in this trial was the grand larceny that Cohen admitted to under oath (after the statute of limitations had run out). Cohen said that he stole tens of thousands from the Trump corporation, a crime far more serious than the dead misdemeanor or even the felonies alleged against Trump.

However, the most significant testimony by Cohen may be his latest alleged perjury in front of the jury.

Many of us guffawed when Cohen claimed that he secretly taped Trump to protect him and keep Pecker honest. No one can explain how that could possibly be true. If it were, he would have told Trump. There is nothing in the call that would have any impact on Pecker, and Cohen admitted to regularly taping others without telling them.

Another alleged perjury came with the key telephone call in which Cohen claimed Trump was informed that the Daniels deal was concluded. The defense showed that that 96-second-long call was to Trump’s bodyguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that clearly shows that the conversation was about a teenager harassing Cohen, not the NDA.

Other witnesses trashed Cohen as unprofessional, prone to exaggeration, bitter against Trump, at times suicidal over being denied positions like attorney general and simply “a jerk.” Hope Hicks, a former aide to Trump, said that Cohen “used to like to call himself Mister Fix It, but it was only because he first broke it.”

Those were the government’s witnesses.

Cohen’s lack of credibility and his admitted financial interest in attacking Trump only highlight again the absence of Weisselberg, whom Cohen references repeatedly as the key person making decisions on how these payments were made and described.

If what Cohen said was true, corroboration was sitting a car ride away in Rikers Island. Traffic may be bad but it is not that bad. The only reason not to call Weisselberg was that he would contradict Cohen.

The prosecution preferred to use a serial perjurer who roughly half of the country views as dishonest as almost the entirety of their case. Even beyond Weisselberg, there is no corroboration for Cohen’s vague allegations on the record.

In the end, this three-legged stool is the very thing that all of us must stand on when accused. Who on the jury would want to stand on this stool with their own liberty at stake?

In the end, the defense needs to be honest with these jurors. The question is whether hatred for this man is enough to ignore the obvious injustice in this case. They may have come to this case with little doubt about Donald Trump, but the question is whether there is not any reasonable doubt about the crimes alleged against him.

In the end, we are all standing on that wobbly stool when the government seeks to convict people without evidence or even a clear crime. If we allow a conviction, it is more than a stool that will collapse in this Manhattan courtroom.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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The Spy Who Loved Me? Morris Reportedly Protected by CIA in Hunter Biden Investigation

Recently, it became public that Kevin Morris, the entertainment lawyer who has subsidized the expenses and bought the art of Hunter Biden, had stopped his funding of Biden. Morris has paid off Hunter’s IRS debts and reportedly lent him a total of $4.9 million for housing, car payments, legal fees, and other possible costs.

The so-called “sugar bro” is “tapped out” according to media reports.  (For full disclosure, Morris previously threatened me with a defamation lawsuit over my writing about his representation of Hunter). Now the House has confirmed prior stories that whistleblower records indicate that the CIA prevented the Justice Department from questioning Kevin Morris as a witness in its probe of Hunter Biden.

Morris has maintained that he lent Hunter millions for “no ulterior motive” and continued to support him out of friendship. Yet, when investigators started to look into the payments and the relationship, they were told that Morris had some relationship with the CIA in August 2021. According to previously unreleased information, IRS special agent and current whistleblower Gary Shapley documented the bizarre intervention of the spy agency.

In a sworn affidavit in May, Shapley declared:

During a recurring prosecution team conference call, in or around late August 2021, Assistant United States Attorney (AUSA) Lesley Wolf told the team that she and DOJ Tax Attorney Jack Morgan had recently returned from the Central Intelligence Agency headquarters in Langley, Virginia, where they had been summoned to discuss Kevin Morris.

AUSA Wolf stated that they were provided a classified briefing in relation to Mr. Morris and as a result we could no longer pursue him as a witness. Investigators probed AUSA Wolf, but since her briefing was classified and she was apparently sanitizing it to an unclassified form to share over an open phone line, she did not elaborate with more information. She reiterated more than once that they were summoned to the CIA in Langley concerning Mr. Morris, and that because of the information provided there, he could not be a witness for the investigation. AUSA Wolf proudly referenced a CIA mug and stated that she purchased some CIA “swag” at the gift shop while she was there.

It is unclear how the CIA became aware that Mr. Morris was a potential witness in the Hunter Biden investigation and why agents were not told about the meeting in advance or invited to participate. It is a deviation of normal investigative processes for prosecutors to exclude investigators from substantive meetings such as this.

It is a testament to the level of bias in the mainstream media that this story is not the sole focus of every media outlet in America. Imagine if the CIA intervened to stop an investigation into a donor maintaining one of the Trump children and supporting his effort to blunt any investigation into corruption. MSNBC would make it ongoing special programming with its own time slot.

This is an agency that is supposed to avoid domestic interventions into politics as well as other areas. It is accused of pulling in a prosecutor to tell her to close part of a criminal investigation involving the financial supporter of the president’s son. Even if Morris was an asset, the question is why shut down the inquiry into his payments to Hunter Biden. The work of Morris with the CIA could be protected or redacted. Instead, the line of inquiry was shut off and Wolf reportedly left Langley with CIA swag and an empty bag of evidence.

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The Lawrence O’Donnell Factor: Will the Trump Jury Exercise Blind Justice or Willful Blindness?


By: Jonathan Turley | May 24, 2024

Read more at https://jonathanturley.org/2024/05/24/the-lawrence-odonnell-factor-will-the-trump-jury-exercise-blind-justice-or-willful-blindness/

Below is my column on Fox.com on the closure of the government and defense cases in the Trump trial. It is clear that the government is going to achieve its objective in avoiding a direct verdict and giving this matter to the jury, which it hopes that the paucity of direct evidence of a crime will be overcome with an abundance of hostility to Donald Trump. As I previously have written, I am still hopeful that these jurors will vindicate the New York legal system with at least a hung jury. In the end, we will see if a Manhattan jury will exercise blind justice or willful blindness.

Here is the column:

With closing arguments scheduled for Tuesday, May 28, the prosecution of former President Donald Trump will finally head to a jury. Judge Juan Merchan has refused every opportunity to bring an end to this politically manufactured prosecution. Now it will be up to 12 New Yorkers to do what neither the court nor the prosecutors were willing to do: adhere to the rule of law regardless of the identity of the defendant.

Merchan has allowed the government to bring back into life a dead misdemeanor and convert it into 34 felony counts of falsifying business records in the first degree. To accomplish this legal regeneration, Manhattan District Attorney Alvin Bragg has vaguely referenced a variety of crimes that Trump allegedly was trying to conceal through the business record violations.

The problem is that he has left the secondary crime mired in uncertainty to the point that experts on various networks are still debating what the underlying theory is in the case.

Indeed, Bragg is expected to finally state with clarity what he is alleging…  at the closing arguments of the case.

In the meantime, the prosecution is pushing to make it easier for the jury to convict. First, they have vaguely referenced a variety of possible offenses from tax to election violations. Bragg initially laid out four possible predicate crimes. It is down to three – a tax crime and violations of state or federal election law.

Merchan has ruled that the jury does not have to agree on what crimes were being covered up so the jury could literally have three different views of what happened in the case and still convict Trump.

Prosecutors are also seeking to effectively shorten the playing field by allowing the jurors to convict on a lower standard of proof for the key term in using “unlawful means.” The defense wants the jury instructed that it must find that such use of “unlawful means” was done with willful intent.

The prosecutors do not want to use that higher standard. For the defense, it is effectively reducing the field to the end zone to make it easier for the prosecution to score.

In the last few days, the Bragg strategy has come into sharper focus in one respect. Bragg is not counting on the evidence or the law. He is counting on the jury.  Call it the Lawrence O’Donnell factor.

After Michael Cohen imploded on the stand in the trial, even experts and hosts on MSNBC and CNN stated that his admissions and contradictions were devastating. Cohen is not only accused of committing perjury in his testimony, but he matter-of-factly detailed how he stole tens of thousands of dollars from the Trump organization.

After being disbarred and convicted as a serial perjurer, Cohen waited for the statute of limitations to run on larceny to admit that he stole as much as $50,000 by pocketing money intended for a contractor.

Liberal commentators acknowledged the fact that Cohen had committed a far more serious offense than the converted misdemeanor against Trump (but was never charged). Yet, one figure stepped forward to assure the public that all was well.

MSNBC host O’Donnell said that he watched the testimony, and that Cohen did wonderfully. Keep in mind that Trump’s lawyer Todd Blanche asked Cohen point blank: “So you stole from the Trump organization, right?” Cohen answered unequivocally: “Yes, sir.”

O’Donnell, however, rushed outside to declare that Cohen was merely acquiring a bonus that he thought that he deserved as a type of “self-help”:

“Cohen [was trying] to rebalance the bonus he thought he deserved. And it still came out as less than the bonus he thought he deserved and the bonus he had gotten the year before.”

In other words, he first determined that his employer should pay him more and then elected to lie to his employer and steal the money. It is akin to New Jersey Democrat Sen. Bob Menendez claiming, in his nearby trial, that the gold bars and cash found in his home were just his effort to secure a well-deserved bonus for his public service.

O’Donnell was widely mocked for his galactic spin. However, he reflects the greatest danger for the Trump team. O’Donnell was showing a type of willful blindness; a refusal to acknowledge even the most shocking disclosures in the trial.

Some of the jurors admitted that MSNBC is one on their news sources and they exhibit the same all-consuming O’Donnell obsession with Trump. If so, they could listen to contradiction to contradiction and simply not recognize them like the MSNBC host. For some, Cohen could burst into flames on the stand, but their eyes will not move from the person behind the defense table.

Many viewers have been raised in an echo chamber of news coverage where they avoid opposing facts on both the left and the right. They actively tailor their news to fulfill a narrative or viewpoint. A jury of O’Donnell’s peers would convict Trump even if the Angel Gabriel appeared at trial as a defense character witness.

It is the ultimate jury instruction not from the court but from the community. With jurors “back in the world” for six days and going to holiday cookouts and events, they will likely hear much of that social judgment and the need to “rebalance” the political ledger through this case.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

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Garland’s Ultimate Test of Principle: Will DOJ Send the Hunter Biden Perjury Allegations to a Grand Jury?


By: Jonathan Turley | May 23, 2024

Read more at https://jonathanturley.org/2024/05/23/merrick-garlands-ultimate-test-of-principle-will-the-doj-send-the-hunter-biden-perjury-allegations-to-a-grand-jury/

Attorney General Merrick Garland has long maintained that he is a completely apolitical figure who only follows the law. Critics have challenged that claim on key cases, including those related to Hunter Biden. However, Garland may now face one of the clearest tests of his claim in his tenure. The House committees have issued a public report alleging three different instances where Hunter Biden allegedly committed perjury. The question is now what Garland is prepared to do about it.

When Hunter testified, I wrote columns suggesting that he might take the Fifth Amendment to remain silent because the risk was too great that he might lie or mislead investigators in his answers. With months of preparation, he decided to run the gauntlet and now appears to have exposed himself to the possibility of additional criminal charges.

Hunter Biden has still not responded to the specific allegations, but on their face they appear strong. Notably, the Justice Department spent considerable time and money to pursue false statements against figures like Michael Flynn over just one statement describing a meeting with Russian diplomats. These are instances where Hunter was under oath, prepared for months, and had counsel present.

One of the instances concerns the controversial WhatsApp message where Hunter not only threatened a Chinese businessman to send him massive amounts of money but said that his father was sitting next to him at the time. Millions were later sent to the Bidens. The infamous WhatsApp message stated in part:

“I am sitting here with my father, and we would like to understand why the commitment made has not been fulfilled. Tell the director that I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang, or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret not following my direction. I am sitting here waiting for the call with my father.”

The response of Hunter to questions about the message was curious and evasive. Hunter said that he had only two things to say about that message. He denied that his father was sitting next to him despite saying that he had no memory of sending the message.  Second, and most importantly, he stated “the Zhao that this is sent to is not the Zhao connected to CEFC” who “had no understanding or even remotely knew what the hell I was even Goddamn talking about.”

The Committee staff maintains that Biden’s WhatsApp account shows that he only ever communicated with one Zhao – Raymond Zhao – and that he most certainly did not know what he was “talking about.”

Another alleged lie was Hunter’s denial that he ever helped people associated with Burisma secure visas. He told Congress that he was unwilling to provide “any work as it related to visas that they needed” and that he would “never pick up the phone and call anybody for a visa.” The Committee has produced an email in which Hunter’s associate Devon Archer references the revoking of Burisma CEO Nikolay Zlochevsky’s visa. It states that “Hunter is checking with Miguel Aleman to see if he can provide cover to Kola on the visa…Please send Hunter an email with all Kola’s passport and visa documents and evidence and copy me. We’ll take it from there.”

Hunter also swore that he had no part in shell companies that received foreign payments. Yet, Archer testified that he and Hunter had an equal stake in Rosemont Seneca Bohai and the Committee has evidence from the IRS whistleblowers showing that Hunter received benefits as owner of the entity’s associated bank account.

The most damning evidence may be a document reading “I, Robert Hunter Biden, hereby certify that I am the duly elected, qualified and acting Secretary of Rosemont Seneca Bohai, LLC.” He used that document as part of his contract with Porsche Financial Services for a sports car.

Those would seem pretty clear and well-founded allegations for a referral to the Justice Department. After fast-tracking false statement claims against Trump officials, the question is whether Garland will even submit the matter to a grand jury. He could also give the matter to the Special Counsel prosecuting Hunter.

Ordinarily, a prosecutor pursuing a defendant in two different felony cases would jump at any alleged illegality. You would not want to stand between him and a grand jury. However, Special Counsel David Weiss has been accused of minimizing charges against the President’s son and attempting to push through a notorious sweetheart deal that collapsed in court.

Now Garland faces an unavoidable choice in treating this referral as he did Trump cases (in sending this to a grand jury) or scuttling alleged perjury made by the son of the President before Congress. It is far less challenging legally than it is politically for Merrick Garland.

If the rule of law still governs at the Justice Department, Hunter Biden could be facing a third front in his ongoing legal struggles.

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“Are You Staring Me Down?”: Judge Merchan Becomes an Oddity in his Own Courtroom


By: Jonathan Turley | May 21, 2024

Read more at https://jonathanturley.org/2024/05/21/are-you-staring-me-down-judge-merchan-becomes-an-oddity-in-his-own-courtroom/

C-Span/YouTube Screenshot

Below is my column in the New York Post on the meltdown of Michael Cohen on the stand in the Manhattan trial of former President Donald Trump.  In a trial careening out of control, Judge Juan Merchan seemed to be furiously working to just get the matter to the jury as fast as possible. Judge Merchan seems in open denial of the legal farce playing out in his courtroom. He is only the latest person pulled into the vortex of the swirling corruption around Michael Cohen.

Here is the column:

The completion of the testimony of Michael Cohen left the prosecution of Donald Trump, like its star witness, in tatters. In the final day of cross-examination, Cohen admitted to committing larceny in stealing tens of thousands of dollars from his client. Even more notably, he admitted to the larceny on the stand — after the statute of limitations had passed. There will be no dead felony zapped back into life against Cohen, as it was for Trump. Cohen clearly has found a home for his unique skill as a convicted, disbarred serial perjurer. 

It was not the first time that prosecutors looked the other way as Cohen admitted to major criminal conduct: In a prior hearing, Cohen admitted under oath that he lied in a previous case where he pleaded guilty to lying. If that is a bit confusing, it was just another day in the life of Michael Cohen, who appears only willing to tell the truth if he has no other alternative. The result is truly otherworldly. You have a disbarred lawyer not only casually discussing lies and uncharged crimes, but prosecutors who proceeded to get him to remind the jury that he is not facing any further criminal charges.

If any one of those jurors had stolen tens of thousands of dollars, they would be given a fast trip to the hoosegow. Yet Cohen then matter-of-factly said he plans to run for Congress due to his “name recognition” — the ultimate proof that it does not matter whether you are famous or infamous, so long as they spell your name right.

As a legislator, Cohen would have the unique ability to say he will not be corrupted by Congress — because he came to Congress corrupted. While most members wait to take office to commit felonies, Rep. Cohen would show up with a self-affirming criminal record. He could then take one of the few oaths that he has not previously violated as the Honorable Rep. Michael Cohen.

At the end of the day, Cohen is the ultimate shining object for prosecutors to use as a distraction from the glaring omissions in their case.

Prior witnesses testified that Trump’s payments to Cohen were designated as “legal expenses” not by Trump but by his accounting staff. Moreover, Cohen admitted that he worked for Trump for years in his murky capacity as a fixer. References to payments as a retainer were approved by Allen Weisselberg, a retired executive with the Trump Organization. The “legal expense” label was a natural characterization for a lawyer who was paid monthly and was on-call as Trump’s personal counsel.

In any other district, this case would never have been allowed in trial. It certainly now should be facing a directed verdict by the court. Indeed, with any other defendant, a New York jury would be giving a Bronx cheer in derision. Even CNN hosts and experts have admitted that this case would never have been brought against another defendant or in another district. That is what Manhattan District Attorney Alvin Bragg is counting on.

The biggest problem facing the defense is not the evidence, but the judge: Judge Juan Merchan seems to be channeling George Patton’s warning, “May God have mercy upon my enemies, because I won’t.”

Merchan has not given any indication that he is seriously considering a directed verdict, which he should clearly grant before this goes to the jury. Merchan’s rulings have largely favored the prosecution, including some rulings that left some of us mystified. Judge Merchan continues to allow the jury to hear references to campaign-finance violations that do not exist.

After gutting any use of a legal expert to testify on the absence of any such violations, the judge allowed the jury to hear Michael Cohen state that the payments to Stormy Daniels were clearly campaign violations. All that Merchan would offer is a weak instruction telling jurors not to take such statements as proof of a violation.

The alleged campaign-finance violations allowed Cohen to try to implicate Trump. However, it is doubtful that Trump could have been convicted on such a charge in any other venue.

It is precisely what the Justice Department tried and failed to do with John Edwards, a Democratic candidate. After that unmitigated failure, the Justice Department dropped this theory of hush money as a campaign contribution. Indeed, after reviewing the Trump payments, not only did the Justice Department decline any charges but the Federal Election Commission did not even seek a civil fine.

On Monday, Judge Merchan’s orders became even more inexplicable when Cohen’s former attorney Robert Costello took the stand. Merchan immediately started to sustain a flurry of prosecutors’ objections as Costello basically accused Cohen of multiple acts of perjury. At one point, Costello — one of the most experienced lawyers in New York and a former prosecutor — exclaimed that one of the judge’s rulings was “ridiculous.” The judge chastised Costello and even challenged him: “Are you staring me down?”

In fact, it was hard not to stare. What is happening in the courtroom of Judge Juan Merchan is anything but ordinary.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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corruption, Law, Political

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Getting Played: The Demolition of Cohen on Cross Examination Reveals “The Grift” to a New York Jury


By: Jonathan Turley | May 17, 2024

Read more at https://jonathanturley.org/2024/05/17/getting-played-the-demolition-of-cohen-on-cross-examination-reveals-the-grift-to-a-new-york-jury/

Below is my column on Fox.com on the approaching end of the Trump trial in Manhattan. With the dramatic implosion of Michael Cohen on the stand on Thursday with the exposure of another alleged lie told under oath, even hosts and commentators on CNN are now criticizing the prosecution and doubting the basis for any conviction. CNN anchor Anderson Cooper admitted that he would “absolutely” have doubts after Cohen’s testimony. CNN’s legal analyst Elie Honig declared “I don’t think I’ve ever seen a star cooperating witness get his knees chopped out quite as clearly and dramatically.” He previously stated that this case would never have been brought outside of a deep blue, anti-Trump district. Other legal experts, including on CNN and MSNBC, admitted that they did not get the legal theory of the prosecution or understand the still mysterious crime that was being concealed by the alleged book-keeping errors.  The question is whether the jury itself is realizing that they are being played by the prosecution.

Here is the column:

In the movie “Quiz Show,” about the rigging of a 1950s television game show, the character Mark Van Doren warns his corrupted son that “if you look around the table and you can’t tell who the sucker is, it’s you.”

As the trial of former President Donald Trump careens toward its conclusion, one has to wonder if the jurors are wondering the same question.

For any discerning juror, the trial has been conspicuously lacking any clear statement from the prosecutors of what crime Trump was attempting to commit by allegedly mischaracterizing payments as “legal expenses.” Even liberal legal experts have continued to express doubt over what crime is being alleged as the government rests its case.

There is also the failure of the prosecutors to establish that Trump even knew of how payments were denoted or that these denotations were actually fraudulent in denoting payments to a lawyer as legal expenses.

The judge has allowed this dangerously undefined case to proceed without demanding greater clarity from the prosecution.

Jurors may also suspect that there is more to meet the eye about the players themselves. While the jurors are likely unaware of these facts, everyone “around the table” has controversial connections. Indeed, for many, the judge, prosecutors, and witnesses seem as random or coincidental as the cast from “Ocean’s Eleven.” Let’s look at three key things.

1. The Prosecutors

First, there are the prosecutors. Manhattan District Attorney Alvin Bragg originally (as did his predecessor) rejected this ridiculous legal theory and further stated that he could not imagine ever bringing a case where he would call former Trump personal attorney Michael Cohen, let alone make him the entirety of a prosecution.

Bragg’s suspension of the case led prosecutor Mark F. Pomerantz to resign. Pomerantz then wrote a book on the prosecution despite his colleagues objecting that he was undermining their work. Many of us viewed the book as unethical and unprofessional, but it worked. The pressure campaign forced Bragg to green-light the prosecution.

Pomerantz also met with Cohen in pushing the case.

Bragg then selected Matthew Colangelo to lead the case. Colangelo was third in command of the Justice Department and gave up that plum position to lead the case against Trump. Colangelo was also paid by the Democratic National Committee for “political consulting.” So a former high-ranking official in the Biden Justice Department and a past consultant to the DNC is leading the prosecution.

2. The Judge

Judge Juan Merchan has been criticized not only because he is a political donor to President Biden but his daughter is a high-ranking Democratic political operative who has raised millions in campaigns against Trump and the GOP. Merchan, however, was not randomly selected. He was specifically selected for the case due to his handling of an earlier Trump-related case.

3. The Star Witness

Michael Cohen’s checkered history as a convicted, disbarred serial perjurer is well known. Now, Rep. Dan Goldman, D-N.Y., is under fire after disclosing that “I have met with [Cohen] a number of times to prepare him.”

Goldman in turn paid Merchan’s daughter, Loren Merchan, more than $157,000 dollars for political consulting.

Outside the courtroom, there is little effort to avoid or hide such conflicts. While Democrats would be outraged if the situation were flipped in a prosecution of Biden, the cross-pollination between the DOJ, DNC, and Democratic operatives is dismissed as irrelevant by many in the media.

Moreover, there is little outrage in New York that, in a presidential campaign where the weaponization of the legal system is a major issue, Trump is not allowed to discuss Cohen, Colangelo, or these conflicts. A New York Supreme Court judge is literally controlling what Trump can say in a presidential campaign about the alleged lawfare being waged against him.

The most striking aspect of these controversial associations is how little was done to avoid even the appearance of conflicts of interests. There were many judges available who were not donors or have children with such prominent political interests in the case. Bragg could have selected someone who was not imported by the Biden administration or someone who had not been paid by the DNC.

There was no concern over the obvious appearance of a politically motivated and stacked criminal case. Whether or not these figures are conflicted or compromised, no effort was taken to assure citizens that any such controversies are avoided in the selection of the key players in this case.

What will be interesting is how the jury will react when, after casting its verdict, the members learn of these undisclosed associations. This entire production was constructed for their benefit to get them to convict Trump despite the absence of a clear crime or direct evidence.

They were the marks and, like any good grift, the prosecutors were hoping that their desire for a Trump conviction would blind them to the con.

Bragg, Colangelo and others may be wrong. Putting aside the chance that Judge Merchan could summon up the courage to end this case before it goes to the jury, the grift may have been a bit too obvious.

New Yorkers are a curious breed. Yes, they overwhelmingly hate Trump, but they also universally hate being treated like chumps. When they get this case, they just might look around the courtroom and decide that they are the suckers in a crooked game.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

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Getting Played: The Demolition of Cohen on Cross Examination Reveals “The Grift” to a New York Jury


By: Jonathan Turley | May 17, 2024

Read more at https://jonathanturley.org/2024/05/17/getting-played-the-demolition-of-cohen-on-cross-examination-reveals-the-grift-to-a-new-york-jury/

Below is my column on Fox.com on the approaching end of the Trump trial in Manhattan. With the dramatic implosion of Michael Cohen on the stand on Thursday with the exposure of another alleged lie told under oath, even hosts and commentators on CNN are now criticizing the prosecution and doubting the basis for any conviction. CNN anchor Anderson Cooper admitted that he would “absolutely” have doubts after Cohen’s testimony. CNN’s legal analyst Elie Honig declared “I don’t think I’ve ever seen a star cooperating witness get his knees chopped out quite as clearly and dramatically.” He previously stated that this case would never have been brought outside of a deep blue, anti-Trump district. Other legal experts, including on CNN and MSNBC, admitted that they did not get the legal theory of the prosecution or understand the still mysterious crime that was being concealed by the alleged book-keeping errors.  The question is whether the jury itself is realizing that they are being played by the prosecution.

Here is the column:

In the movie “Quiz Show,” about the rigging of a 1950s television game show, the character Mark Van Doren warns his corrupted son that “if you look around the table and you can’t tell who the sucker is, it’s you.”

As the trial of former President Donald Trump careens toward its conclusion, one has to wonder if the jurors are wondering the same question. For any discerning juror, the trial has been conspicuously lacking any clear statement from the prosecutors of what crime Trump was attempting to commit by allegedly mischaracterizing payments as “legal expenses.” Even liberal legal experts have continued to express doubt over what crime is being alleged as the government rests its case.

There is also the failure of the prosecutors to establish that Trump even knew of how payments were denoted or that these denotations were actually fraudulent in denoting payments to a lawyer as legal expenses.

The judge has allowed this dangerously undefined case to proceed without demanding greater clarity from the prosecution.

Jurors may also suspect that there is more to meet the eye about the players themselves. While the jurors are likely unaware of these facts, everyone “around the table” has controversial connections. Indeed, for many, the judge, prosecutors, and witnesses seem as random or coincidental as the cast from “Ocean’s Eleven.” Let’s look at three key things.

1. The Prosecutors

First, there are the prosecutors. Manhattan District Attorney Alvin Bragg originally (as did his predecessor) rejected this ridiculous legal theory and further stated that he could not imagine ever bringing a case where he would call former Trump personal attorney Michael Cohen, let alone make him the entirety of a prosecution.

Bragg’s suspension of the case led prosecutor Mark F. Pomerantz to resign. Pomerantz then wrote a book on the prosecution despite his colleagues objecting that he was undermining their work. Many of us viewed the book as unethical and unprofessional, but it worked. The pressure campaign forced Bragg to green-light the prosecution.

Pomerantz also met with Cohen in pushing the case.

Bragg then selected Matthew Colangelo to lead the case. Colangelo was third in command of the Justice Department and gave up that plum position to lead the case against Trump. Colangelo was also paid by the Democratic National Committee for “political consulting.” So, a former high-ranking official in the Biden Justice Department and a past consultant to the DNC is leading the prosecution.

2. The Judge

Judge Juan Merchan has been criticized not only because he is a political donor to President Biden but his daughter is a high-ranking Democratic political operative who has raised millions in campaigns against Trump and the GOP. Merchan, however, was not randomly selected. He was specifically selected for the case due to his handling of an earlier Trump-related case.

3. The Star Witness

Michael Cohen’s checkered history as a convicted, disbarred serial perjurer is well known. Now, Rep. Dan Goldman, D-N.Y., is under fire after disclosing that “I have met with [Cohen] a number of times to prepare him.” Goldman in turn paid Merchan’s daughter, Loren Merchan, more than $157,000 dollars for political consulting.

Outside the courtroom, there is little effort to avoid or hide such conflicts. While Democrats would be outraged if the situation were flipped in a prosecution of Biden, the cross-pollination between the DOJ, DNC, and Democratic operatives is dismissed as irrelevant by many in the media.

Moreover, there is little outrage in New York that, in a presidential campaign where the weaponization of the legal system is a major issue, Trump is not allowed to discuss Cohen, Colangelo, or these conflicts. A New York Supreme Court judge is literally controlling what Trump can say in a presidential campaign about the alleged lawfare being waged against him.

The most striking aspect of these controversial associations is how little was done to avoid even the appearance of conflicts of interests. There were many judges available who were not donors or have children with such prominent political interests in the case. Bragg could have selected someone who was not imported by the Biden administration or someone who had not been paid by the DNC.

There was no concern over the obvious appearance of a politically motivated and stacked criminal case. Whether or not these figures are conflicted or compromised, no effort was taken to assure citizens that any such controversies are avoided in the selection of the key players in this case.

What will be interesting is how the jury will react when, after casting its verdict, the members learn of these undisclosed associations. This entire production was constructed for their benefit to get them to convict Trump despite the absence of a clear crime or direct evidence.

They were the marks and, like any good grift, the prosecutors were hoping that their desire for a Trump conviction would blind them to the con.

Bragg, Colangelo and others may be wrong. Putting aside the chance that Judge Merchan could summon up the courage to end this case before it goes to the jury, the grift may have been a bit too obvious.

New Yorkers are a curious breed. Yes, they overwhelmingly hate Trump, but they also universally hate being treated like chumps. When they get this case, they just might look around the courtroom and decide that they are the suckers in a crooked game.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

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Did Michael Cohen Commit Perjury in the Trump Trial?


By: Jonathan Turley | May 16, 2024

Read more at https://jonathanturley.org/2024/05/15/did-michael-cohen-commit-perjury-in-the-trump-trial/

Below is a slightly expanded version of my column in the New York Post on the first day of cross examination for Michael Cohen. He still has one day of cross examination ahead of him on Thursday. With the government resting after Cohen’s cross examination, I believe that an honest judge would have no alternative but to grant a motion for a directed verdict and end the case before it goes to the jury. Judge Juan Merchan will now have to give the full measure of his commitment to the rule of law. Given the failure to support the elements of any crime or even to establish the falsity of recording payments as legal expenses, this trial seemed to stumble through the motions of a trial. Michael Cohen was only the final proof of a raw political exercise. For critics, some of Cohen’s answers appear clearly false or misleading. Like their star witness, the prosecutors have shown that they simply do not take the law very seriously when there is an advantage to be taken. Cohen has truly found a home with the office of Manhattan District Attorney Alvin Bragg.

Here is the column:

On Tuesday, the prosecution surprised many by suddenly announcing that it would rest its case against former president Donald Trump with the completion of testimony by Michael Cohen. It was surprising because the prosecution never clearly stated the crime that it was proving, the elements of that crime, or even why denoting payments related to Stormy Daniels were not properly recorded as legal expenses. Indeed, the only thing the prosecutors proved was that, in the pantheon of dishonesty, there are liars, pathological liars . . . and Michael Cohen.

Cohen spent the last two days insisting that he used to be a liar but lied to help former President Donald Trump. If that is the thrust of his testimony, it is just the latest lie told by Cohen under oath. Cohen has lied to Congress, courts, special counsels, the IRS, the banks, and virtually every creature that walks or crawls on the face of the Earth. Notably, his past conviction for business and tax fraud were not taken in the interests of Trump but himself.

When he admitted on the stand that he lied during his prior plea agreement, that was not to assist Trump who he had already denounced. It was to advance his own interests. There is every indication that Cohen is still lying.

Cohen repeatedly said that he could not remember even recent calls after recounting calls from eight years ago with crystal clarity. He said that he could not remember key exchanges and statements. However, these paled in comparison to other glaring moments. Take, for example, his testimony on his unethical decision to secretly record a Sept. 6, 2016 telephone call with Trump. It was a breathtaking betrayal that most lawyers would not contemplate, let alone carry out.

When asked by the prosecutors about that act, Cohen bizarrely claimed that he did so to guarantee that David Pecker, the former publisher of the National Enquirer, would “remain loyal to Mr. Trump.”

No one seriously believes that this is true. It does not even make sense. Pecker was speaking to Trump about the payments and even met with him at the White House. Playing for him a call with Trump would produce nothing but confusion rather than pressure for Pecker. Moreover, why would Cohen tape the call without letting Trump know? The obvious motive was to squirrel away material to use against Trump if he ever needed a little leverage.

Again, it was for Cohen.

Cohen’s testimony showed that he has consistently acted in his sole interest. After portraying his sudden cooperation with prosecutors as a type of Road to Damascus, jurors learned that all roads lead back to Cohen and his bank accounts. After telling the jury that he has dedicated his life to righting the wrongs of Trump and holding him accountable, he admitted that he repeatedly acted to undermine the prosecution in order to make a buck.

Told by prosecutors to stop doing public interviews, Cohen did not care. He did roughly two dozen television appearances and recorded hundreds of podcast episodes. He admitted that Trump is mentioned in virtually every episode, of which he did roughly four a week. He recounted how he raked in millions on books, including one titled “Revenge.” He admitted that he is selling items like a $32 shirt with a photo of Trump in a jumpsuit behind bars and a coffee mug with the phrase “send him to the big house, not the White House.” He is also peddling a reality show called “The Fixer,” in which he promises viewers, “I am your fixer.”

After just a few hours of cross examination, it was clear that Cohen is the same grifter saving himself — one Venmo at a time. Yet, Cohen continued to reframe reality in his own self-constructed image.

When asked about his TikTok antics, he portrayed his postings as a type of sleep deprivation therapy, explaining that “having a difficult time sleeping and [he] found an out.”

No sane prosecutor would rely on Cohen, let alone make him the entirety of their case.

The prosecutors did not even bother to show that Trump was responsible for or knew about how the payments were recorded on ledgers and business records. They also just shrugged away the need to show why denoting these payments as “legal expenses” was fraudulent — or what the correct description might be. Those details might be demanded in any other courtroom, but this is New York and the defendant is Donald Trump.

For Bragg and his team, it is all about what they can get out of this case despite the law. In that sense, they found a kindred spirit in their star witness, and Michael Cohen has finally found a place that values what he calls on his reality show promo his “particular set of skills.”

Jonathan Turley is an attorney and professor at George Washington University Law School.

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“I See Dead People”: Bragg’s Case Against Trump Goes Paranormal


BY: Jonatan Turley | May 13, 2024

Read more at https://jonathanturley.org/2024/05/13/i-see-dead-people-braggs-case-becomes-a-competition-of-the-paranormal/

Below is my column on the completion of the testimony of Stormy Daniels and the start of the testimony of Michael Cohen. With a dubious legal theory, the testimony has only magnified the criticism of the prosecution as parading sensational rather than material evidence before the jury and the public. Manhattan District Attorney Alvin Bragg is losing even CNN hosts and legal analysts. Fareed Zakaria noted “I doubt the New York indictment would have been brought against a defendant whose name was not Donald Trump” Elie Honig has observed that, if brought in a less Democratic district, “I would say there’s no chance of a conviction.” The Bragg case was never “normal” but last week it seemed to go paranormal.

Here is the column:

“I see dead people.” Before this week, that claim was most associated with the nine-year-old character Cole Sear from the 1999 film “The Sixth Sense.” But now it is one of the talents claimed by former adult film actress Stormy Daniels in her bizarre testimony in Manhattan during former President Donald Trump’s trial.

It turns out that speaking to the dead was one of the few relevant things Daniels had to offer in the case, which is now on a collision course with a motion for acquittal before the case even goes to the jury.

The Daniels testimony will live in infamy in the annals of criminal justice. For two days, she offered lurid and completely irrelevant details whose only possible purpose was to humiliate Trump. Admitting that she was coached by the prosecution in her testimony, it was clear that she was there not to win a case but to win an election. Judge Juan Merchan allowed this legal burlesque to unfold in his courtroom, later blaming defense counsel who had vociferously objected to her appearance and the scope of the examination.

The cross examination was devastating. It shattered her laughable claim that she had not really been seeking money in shaking Trump down for a non-disclosure agreement, a claim contradicted by her own former lawyer. Daniels also revealed that she had spoken with the dead, and that a ghost had once held her boyfriend under water in a bathtub. She also said that she lived in a haunted house, only to discover later that the spirit haunting it was actually a large possum.

In a case based on a dead misdemeanor and a rapidly falling heart rate on the manufactured felony, one can understand the appeal of witnesses who can speak for the dead. Indeed, Daniels’s graphic testimony may prove the moral high point of this trial, since serial perjurer and disbarred attorney Michael Cohen is scheduled to testify Monday.

Cohen recently broke his pledge, midway through the trial, to stop attacking and taunting Trump. Cohen has insisted that he deserves the protection of the gag order by Judge Merchan as a witness, despite serious constitutional concerns. Merchan continues to threaten Trump with jail if he responds to Cohen’s unrelenting attacks. Merchan waited for the weekend before his testimony to suggest that the prosecutors tell Cohen to stop the public antics.

But it remains unclear what the order is protecting Cohen from. Not only is he trolling for money on social media with reference to the trial, but he is also widely being attacked by others. It is only Trump who cannot address his attacks, including political opposition to his campaign.

Cohen’s testimony will be the culmination of this travesty of a trial. But Bragg already jumped the shark with Daniels. After three weeks, legal experts are still debating what the crime was that Trump was seeking to conceal by recording payments for a standard non-disclosure agreement as a legal expense. (That is the same characterization used by Hillary Clinton’s campaign for its funding for the infamous Steele dossier.)

It is still unclear that Trump even knew how the payments were characterized, and the alleged false record was not even created until after the election was over. Yet he stands accused of using the “false business records” to somehow steal or rig an election that was already over.

After this circus with Cohen is complete, Trump will be allowed to testify. He would be insane to do so. Merchan has already said that he will allow a broad scope to cross-examination, making any appearance unlikely.

That is when Merchan will face a key test of judicial ethics. He has failed to protect the rights of the defendant from a baseless, politically motivated prosecution. He could insist that he simply felt Bragg had a right to present his case. He will soon be done and, as expected, it is entirely based on Cohen, a disbarred perjurer who will ask for his former client to be sent to prison for following his own legal advice.

After Bragg closes the prosecution’s case, the defense will make a standard motion for dismissal. Merchan should grant that motion. There has been no showing of an actual crime, let alone a clear record tying Trump to key decisions or actions.

Merchan will then have to decide whether he has the courage that Bragg lacked. Bragg knew that this case was ridiculous. The Justice Department had declined any prosecution for a federal campaign finance violation, the theory referenced in the case. Indeed, it did not even seek a civil fine over the payments. Bragg’s predecessor had also rejected the prosecution.

When Bragg took over, he similarly balked and stopped the move toward an indictment. But two prosecutors in his office, Carey R. Dunne and Mark F. Pomerantz, then resigned and started a public pressure campaign to get New Yorkers to demand prosecution.

Pomerantz went even further and took an action that some of us viewed as deeply unethical and unprofessional. Over the objections of his own former office and colleagues, he published a book on the case against Trump — then still under investigation and not charged, let alone convicted. It was a pressure campaign directed at Bragg. In New York, Bragg knew that he would either have to indict Trump or forget about reelection.

Merchan will now have to make the same choice in yielding to politics or principle…or to the paranormal. He has already allowed every effort to bring this dead misdemeanor back to life. But even Stormy Daniels may not be able to serve as Merchan’s medium in reaching back eight years.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

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The Appearance of Michael Cohen: A Wreck in Search of a Race


By: Jonatan Turley | May 13, 2024

Read more at https://jonathanturley.org/2024/05/13/the-appearance-of-michael-cohen-a-wreck-in-search-of-a-race/

Below is an expanded version of my New York Post column on the appearance of Michael Cohen Monday in the Manhattan prosecution of former President Donald Trump. His testimony will not be for the intestinally weak or ethically strong viewers. It has all the draw of a Nascar race on a rainy day.

Here is the column:

Michael Cohen is to criminal justice what car crashes are to Nascar: few want to admit it, but he is the perverse draw for the wreck-obsessed. The difference is that Cohen was already a rolling smoking wreck when he pulled up to the track.

Even for those of us who have long been critics of this case and its dubious legal theory, it has been surprising to see that the prosecutors had no more evidence than what we previously knew about. The assumption was that no rational prosecutor would base a major criminal case virtually entirely on the testimony of Michael Cohen who was just recently denounced by a judge as a serial perjurer peddling “perverse” theories in court.

The calculus of Alvin Bragg is now obvious. He is counting on the jury convicting Trump regardless of the evidence. He believes that all he needs is to check the boxes on the elements of the crime, no matter how unbelievable the vehicle.

The reason is that Bragg likely fears a directed verdict more than a jury verdict. After the government closes its evidence, the defense will move for a directed verdict on the basis that the evidence is insufficient to sustain a conviction.

In other words, when the prosecution rests this week, Trump’s counsel will stand and ask Merchan to end the case before it is even given to the jury. Many of us agree with that assessment. After three weeks of testimony, there is still confusion on what crime Trump was allegedly seeking to cover up.

Bragg has vaguely referred to using the denotation of payments to Daniels as “legal expenses” as a fraud committed to steal the election. However, the election was over when those denotations were made.  Moreover, many believe that such a characterization for payments related to a nondisclosure agreement was accurate. (Hillary Clinton’s campaign claimed in the same election that hiding the funding for the Steele dossier as legal expenses was perfectly accurate).

Judge Juan Merchan, in my view, has failed repeatedly to protect the rights of the accused in this case. However, he can claim that there was enough alleged to give Bragg the chance to make his case.  Thus far he has not done so and, if he is truly neutral, Merchan should grant the motion.

Bragg is counting on not only a motivated jury but a motivated judge to keep this anemic case alive. All he hopes that he needs to do is get this to a Trump-loathing jury to set aside any reasonable doubt. To do that, he found the ultimate motivated witness with a record of saying whatever serves his interests and those of his sponsors.

Even with a New York jury, however, you cannot assume that every juror will jettison doubt when it comes to the unpopular defendant. Yet, Bragg first has to show Merchan that someone claimed to have evidence directly tying Trump to an intentional fraudulent scheme to conceal a crime.

Thus far, Bragg is not even close. Indeed, many of his witnesses helped Trump more than they hurt him on the actual charges.

Bragg started with testimony on the killing of a story by David Pecker, former publisher of the National Enquirer tabloid, on an uncharged transaction to kill a story of a Trump affair with a different woman, Karen McDougal, a former Playboy model.

The relevancy was marginal but the testimony backfired in that Pecker admitted that Trump told him that he knew nothing about any reimbursement to Cohen for any hush money. He further said that he had killed or raised such stories with Trump for decades before he ever announced for president. He also said that he had killed stories for other celebrities and politicians, including Arnold Schwarzenegger, Tiger Woods, Rahm Emanuel and Mark Wahlberg.

For good measure, Pecker noted that Cohen often exaggerates and became loud and argumentative.

Witnesses said that Trump likely had a mix of motivations including sparing his family from embarrassment. Daniels’ own counsel contradicted the prosecution’s reference to the payment as “hush money.”

Prosecutors now need Cohen to check virtually every box on his own. It is not enough to say that Trump wanted to hush up the alleged affair. That is no crime and NDAs are common and legal.

Cohen has to say that Trump specifically knew and approved of the characterization of the payments as “legal expenses.” He further has to establish that Trump intended the denotation to conceal the payments for the purposes of election violations or fraud.

That could make this a “he said, he said” case, but only if Trump were to actually testify. However, Merchan’s earlier rulings make such testimony highly unlikely. The court approved a sweeping scope for cross examination if Trump dares to take the stand. No competent lawyer would advise him to do so after Merchan’s rulings.

That is exactly where Bragg wants to be: with a “he said” not a “he said, he said” case. With Trump effectively silenced, Bragg will argue that that is enough to get this to the jury and he can then allow the New York jury to jettison any notion of reasonable doubt when it comes to Donald Trump.

For most people, this cynical calculation will be immaterial when Cohen is called. Calling a convicted, disbarred, serial perjurer to any court is a spectacle in itself. Cohen seems like he has never met an oath that he does not want to break.

Indeed, he appears eager to expand his collection by announcing in the midst of the trial coverage that he is running for Congress. Given the blind rage of many New Yorkers, he could well succeed with single-issue, anti-Trump voters. If so, we will all be back just to see if a vortex to the netherworld opens up when Cohen stands on the House floor and swears that he is taking the oath “without . . . purpose of evasion.”

But before he becomes Rep. Michael Cohen, he will have to appear for his Nascar moment, though he will be the first wreck in search of a race.

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Democrats Attack Judge for Delaying Trump Florida Trial


By: Jonathan Turley | May 9, 2024

Read more at https://jonathanturley.org/2024/05/09/democrats-attack-judge-for-delaying-trump-florida-trial/

While pundits, politicians and the press have long expressed outrage over attacks on judges by former President Donald Trump, many are now attacking any judge who delays any trial of Trump before the election. Democrats have accused Judge Aileen Cannon of being politically compromised, if not conspiratorial, in her delay of the Florida trial over the mishandling of classified documents. Yet, there is ample reason for the delay that many of us anticipated in this type of case when it was filed.

For months, many of us have said that we doubt that this type of trial could be held on the rapid schedule demanded by Special Counsel Jake Smith. Smith has repeatedly sought to curtail trial review and even appellate rights of Trump to advance his schedule.

His office has made convicting Trump before the election the overriding objective of its motion — a sharp departure from past Justice Department efforts to avoid trials to influence elections.

As a criminal defense counsel, I have handled classified material cases, and they are notoriously slow. Smith could have prosecuted this case in the shorter time frame if he simply charged obstruction. That would have also eliminated the glaring contrast with the handling of the Biden investigation into the current president’s retention and mishandling of classified material.

Smith decided to charge an array of document charges related to classified material. The defense must have access, review, and can appeal issues related to the classified procedures. Yet, Smith wanted both the array of document charges and a fast track to trial. The Supreme Court has agreed with Cannon that Smith’s desire to secure a conviction before the election is not the overriding consideration.

Judge Cannon is faced with recent admissions that the government mixed up files in the boxes and staged the famous photos of documents strewn over a floor with classified jackets. Most importantly, disputes over the relevant documents continues as expected in the case. Nevertheless, leading democrats are denouncing Cannon as a partisan hack.

Sen. Sheldon Whitehouse (D-R.I.), the chair of the Senate Judiciary Committee’s subcommittee on federal courts and oversight, accused Cannon of “deliberately slow-walking the case.” Ignoring the fact that similar cases have taken much longer to go to trial, Whitehouse simply declared “it is hard for me not to reach the conclusion that this [judge] is deliberately slow-walking the case to put it into a position where should [Trump] be elected, he can order that the investigation and prosecution be terminated.”

His colleague Sen. Chris Coons (D-Del.) insisted that Cannon was “managing this case in a way that is making it highly unlikely that it will be resolved in a timely fashion.”

Coons added “Justice deferred is often justice denied.” It is a bizarre statement. Classified documents cases routinely take longer to go to trial. The alternative is to cut off the ability of the defense to fully review the documents and review objections for resolution before trial. Yet, because the defendant is Trump and these Democrats want the trial to influence the election, such defense protections are now evidence of judicial bias. They, of course, ignore that Cannon has ruled repeatedly against major Trump motions in the case.

Sen. Peter Welch (D-Vt.), a member of the Judiciary Committee, said Cannon’s “at it again, doing everything she can to delay.”

Sen. Richard Blumenthal (D-Conn.), offered the most telling line. He said, “I question whether this judge understands the magnitude or the legal import of this trial.”

Indeed, it is the timing as much as the charges that makes this so important to the Justice Department and the Democrats. Smith has crafted this case to impact the election and the failure of the court to support that effort is apparently grounds for recusal.

Blumenthal called for such a motion before the window is lost before the election: “It’s a classic dilemma for justice that a particular judicial officer may be conducting a trial that could be better done by somebody else.”

Despite the statement of his colleague Coons, this is a case where justice delayed is justice.

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Stormy Daniels Day: Alvin Bragg Lights Dumpster Fire in Manhattan


By: Jonathan Turley | May 8, 2024

Read more at https://jonathanturley.org/2024/05/08/stormy-daniels-day-alvin-bragg-lights-dumpster-fire-in-manhattan-courtroom/

Below is my New York Post column on the unseemly scene in the courtroom of Judge Juan Merchan as prosecutors used porn star Stormy Daniels to present lurid details on her alleged tryst with former president Donald Trump. It was a dumpster fire that Judge Merchan watched burn for a full day and then said the jury may have to disregard much of what they saw and heard.

Here is the column:

Before the start of the Manhattan prosecution of former president Donald Trump, I characterized the case of District Attorney Alvin Bragg as based on a type of obscenity standard.

In a 1984 pornography case, Supreme Court Justice Potter Stewart wrote “I shall not today attempt further to define [obscenity]. . . . But I know it when I see it.”

Bragg has refused to clearly define the crime that Trump was seeking to conceal when payments for a non-disclosure agreement were listed as a legal expense. We would just know it when we saw it at trial. We are still waiting, but this week, Bragg seems to be prosecuting an actual obscenity case.

The prosecution fought with Trump’s defense counsel to not only call porn star Stormy Daniels to the stand, but to ask her for lurid details on her alleged tryst with Trump. The only assurance that they would make to Judge Juan Merchan was that they would “not go into details of genitalia.” For Merchan, who has largely ruled against Trump on such motions, that was enough. He allowed the prosecutors to get into the details of the affair despite the immateriality of the evidence to any criminal theory.

Neither the NDA nor the payment to Daniels is being contested. It is also uncontested that Trump wanted to pay to get the story (and other stories, including untrue allegations) from being published.

The value of the testimony was entirely sensational and gratuitous, yet Merchan was fine with humiliating Trump. Daniels’ testimony was a dumpster fire in the courtroom.

The most maddening moment for the defense came at the lunch break when Merchan stated, “I agree that it would have been better if some of these things had been left unsaid.” He then denied a motion for a mistrial based on the testimony and blamed the defense for not objecting more. That, of course, ignores the standing objection of the defense to Daniels even appearing, and specific objections to the broad scope allowed by the court.

This is precisely what the defense said would happen when the prosecutors only agreed to avoid “genitalia.” There was no reason for Daniels to appear at all in the trial. Even if he was adamant in allowing her, Merchan could have imposed a much more limited scope for her testimony. He could also have enforced the limits that he did place on the testimony when it was being ignored by both the prosecutors and the witness.

Merchan said that he is considering a limiting instruction for the jury to ignore aspects of the testimony. But that is little comfort for the defendant.

The court was told that this would happen, it happened, and now the court wants to ask the jury to pretend that it did not happen. Merchan knows that there is no way for the jury to unhear the testimony. More importantly, the prosecution knew that from the outset.

Daniels appeared eager to share the stories for the same reason that she was eager to sell her story. While she said that she “hates” Trump and wants him “held accountable,” Daniels is no victim. She had an alleged tryst with Trump and then sought to cash in on the story.

It is a standard form of extortion of celebrities. She later sought to cash in on the notoriety by appearing in strip clubs as part of a “Make America Horny Again” tour. She is in her element in Merchan’s courtroom.

In New York, the relevance or credibility of witnesses like Daniels is largely immaterial.

This is a district that voted against Trump, 84.5% to 14.5%, in the 2020 presidential election.

New Yorkers elected a state attorney general, Letitia James, who ran on the pledge to bag Trump on something — without specifying any crime.

Bragg then indicted Trump without clearly defining any crime — a debate that continues among legal experts after two weeks of testimony.

This is entertainment for many in New York — as is the thrill of the possibility of his going to jail under Merchan’s poorly written and arguably unconstitutional gag order.

When it comes to a thrill kill trial, who better to call than Daniels?

After all, she has been treated as a heroine by many, even being given the key to the city of West Hollywood, California, on “Stormy Daniels Day.”

Well, it was Stormy Daniels Day in Judge Merchan’s courtroom this week, and it is a bit late for the court to express shock over her testimony.

It is not the witness, but the case that seems increasingly obscene.

  • You have a judge who should have recused himself given his daughter’s major role as a Democratic activist and fundraiser.
  • You have a gag order that is allowing a New York Supreme Court justice to regulate what the leading candidate for the presidency may say in an election on the weaponization of the legal system.
  • You have a case based on two dead misdemeanors shocked back into life by a still mysterious theory of an undefined crime.

In comparison, Daniels may be the only authentic part of the entire case in New York v. Trump.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Jonathan Turley Op-ed: A Disbarred, Serial Perjurer Walks into a Court and Asks to Take an Oath…Seriously, No Joke


By: Jonathan Turley | May 6, 2024

Read more at https://jonathanturley.org/2024/05/06/a-disbarred-serial-perjurer-walks-into-a-courtroom-and-asks-to-take-an-oath-seriously-no-joke/

C-Span/YouTube Screenshot

Below is my column in The Hill on the expected appearance of Michael Cohen in the Manhattan trial of former president Donald Trump. It will be a scene that is both mesmerizing and repellent for many, particularly in the bar.

Here is the column:

A disbarred, serial perjurer walks into a courtroom and asks to take an oath . . . No, seriously, this is not a joke. Michael Cohen will soon appear in a Manhattan courtroom in what is sure to be one of the most bizarre moments in legal history.

Cohen nearly comprises the prosecution’s entire case against former President Donald Trump under a criminal theory that still has many of us baffled. It is not clear what crime Trump was supposedly trying to conceal by making “hush-money” payments to former porn actress Stormy Daniels. What is clear is that none of the witnesses called in recent weeks has had any direct involvement with Trump on the payments. The witnesses had a lot to say about Cohen, and most of it was not good. They described an unprofessional, self-proclaimed “fix-it man” who created a shell corporation to buy out Daniels with his own money. The money was later paid back by Trump after the election, with other legal expenses.

So, Cohen will now make the pitch to the jury that they should put his former client in jail for following his own legal advice. This would be difficult even for a competent and ethical lawyer. For Cohen, it is utter insanity. But Bragg is betting on a New York jury looking no further than the identity of the defendant to convict.

Cohen has an impressive history of lies and exaggerations that may be unparalleled. Just weeks ago, another judge denounced him as a serial perjurer who was still gaming the system. This is not the defendant, mind you, but Alvin Bragg’s star witness.

I have been an outspoken critic of Cohen going back to when he was still representing Trump. His unethical acts were matched only by his unprofessional demeanor. In 2015, after students on the Harvard Lampoon played a harmless prank on Trump, Cohen was quoted by a student on the Lampoon staff as threatening them with expulsion.

When a journalist pursued a story Cohen did not like, he told the reporter that he should “tread very f—ing lightly because what I’m going to do to you is going to be f—ing disgusting. Do you understand me?”

It is not hard to “understand” Cohen. He has long marketed his curious skill of voluntarily saying whatever the highest bidder wants him to say. He is a convicted perjurer who seems to lie even when the truth would do. Each time he is caught lying, he claims to be the sinner who has finally seen the light, seeking redemption.

When he was called before the House to testify against Trump soon after his plea agreement with the Justice Department (for lying), Cohen was again accused of perjury. House Oversight Chairman Elijah Cummings (D-Md.), warned Cohen repeatedly that he had better tell the truth this time. Cohen then testified that Trump wanted him to work in his administration and offered him multiple jobs, which he turned down. He also claimed, “I have never asked for, nor would I accept, a pardon from President Trump.” Multiple sources have said that Cohen’s lawyer pressed the White House for a pardon, and that Cohen unsuccessfully sought a presidential pardon after FBI raids on his office and residences last year.

Even after being stripped of his law license and sentenced to three years in prison, Cohen continued the pattern. In 2019, Cohen failed to appear to testify before the Senate Intelligence Committee, citing an inability to travel due to surgery. He was then seen partying before the hearing date with five friends.

Even while in jail, Cohen was accused of lying to a court, in violation of an order for early release due to medical problems. He was ordered back into custody after being spotted at a high-end restaurant.

But the most impressive moment came when Cohen was put back on the stand under oath and matter-of-factly claimed that he had lied in his prior hearing, when he pleaded guilty to lying.

In his 2018 guilty plea before U.S. District Judge William Henry Pauley III, Cohen admitted to this conduct under oath.

Then, when Cohen was asked by Trump’s counsel, “Did you lie to Judge Pauley when you said that you were guilty of the counts that you said under oath that you were guilty of? Did you lie to Judge Pauley?”

Cohen responded, “Yes.”  He was then again asked “So you lied when you said that you evaded taxes to a judge under oath; is that correct?” He again responded, “Yes.”

Most of us expected the Justice Department to bring new perjury charges at that point. It is rare that a defendant will actually take the stand and confess to perjury. However, Cohen was now useful again. This time, he was willing to deliver Trump. The Justice Department and Manhattan prosecutors were clearly willing to tolerate a little perjury for that prize.

Cohen’s conduct has already loomed large in the Manhattan proceedings. When Keith Davidson took the stand — the attorney who represented both Stormy Daniels and former Playboy model Karen McDougal — he recounted how Cohen was furious about not being offered a job in the White House. That directly contradicts Cohen’s congressional testimony. Davidson said that Cohen believed he might be named attorney general.

The account, if true, shows that Cohen is not only unethical, but also delusional. Cohen was found incapable of being an attorney, let alone an attorney general.

As prosecutors set the table for the grand arrival of their star witness, the testimony only got worse. David Pecker, the former owner of the National Enquirer, said charitably that Cohen was “prone to exaggeration.”

Davidson described Cohen’s profane and unprofessional conduct, stating that “the moral of the story is nobody wanted to talk to Cohen.” That may be the first time the word “moral” was used in the same line with Cohen.

Former Trump associate Hope Hicks mocked Cohen on the stand. She said that he constantly tried to insinuate himself into the campaign, without success, and that he “used to like to call himself Mister Fix It, but it was only because he first broke it.” Mind you, these were his fellow prosecution witnesses, not the defense.

These witnesses also contradicted the basis for the prosecution. Pecker said that he killed stories for various celebrities for years, and that he did so for Trump for over a decade before he ran for office. Davidson testified that he did not consider the deal to be “hush money” but simply “consideration” to kill bad press.

Hicks testified that she believed Trump wanted to kill the stories in significant part to protect his family from embarrassment.

Cohen could not even maintain a consistent position during the trial. Many of us have denounced the gag order on Trump that prevents him from responding to Cohen’s unrelenting attacks in the media. Cohen then promised to stop any further comments. That promise may have set a record for Cohen. He kept it for roughly three days before being accused of trolling for dollars on social media by attacking Trump.

District Attorney Bragg will now call this disbarred, serial perjurer to make the case against a former president. Under New York law, the oath administered by the court is supposed “to awaken the conscience and impress the mind of the witness in accordance with that witness’s religious or ethical beliefs.”

Before the bailiff administers the oath to Cohen, Judge Juan Merchan may have to warn spectators in the courtroom not to laugh. For anyone familiar with Cohen, it will sound like the ultimate punchline to a bad joke.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

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Jonathan Turley Op-ed: Alvin Bragg and The Art of Not Taking Law Too Seriously


By: Jonathan Turley | April 29, 2024

Read more at https://jonathanturley.org/2024/04/29/alvin-bragg-and-the-art-of-not-taken-law-too-seriously/#more-218348

Below is my column in The Hill on the first week of testimony in the Trump trial. It is making Rube Goldberg’s 13 step self-operating napkin look like a model of efficiency and clarity. It is so convoluted and illogical it is mesmerizing.

Here is the column:

Rube Goldberg, the inventor of bizarre machines that performed simple tasks through dozens of mechanical steps, was once asked about the essence of creating such fantastic, illogical machines. He replied, “An inventor is simply a fellow who doesn’t take his education too seriously.” After the first week of testimony, the trial of Donald Trump is increasingly looking like a mad prosecution machine by lawyers who don’t take law too seriously.

I have long been a critic of the Bragg indictment as legally incomprehensible. However, I must confess that after a week of testimony, some of us have developed a weird fascination with the utter madness of the scene unfolding in Manhattan. It was not until the second week of proceedings that Bragg even revealed part of his theory of criminality. For months, even liberal legal analysts have expressed dismay that Bragg’s indictment had not clearly stated what specific crime that Trump sought to conceal by allegedly misrepresenting payments to former adult film actress Stormy Daniels.

The premise of the prosecution always had that Rube Goldberg feel. It was so implausible as to be impossible. After all, the base charge is a simple misdemeanor under a New York law against falsifying business records. Trump paid Cohen hundreds of thousands of dollars in legal fees and costs, including $130,000 for a nondisclosure agreement with Daniels.

Bragg is vague as to what should have been noted on the ledgers for the payments. It is not even clear if Trump knew of this expense’s designation as a legal cost. However, it really did not matter, because the misdemeanor has been as dead as Dillinger for years.

The dead misdemeanor was shocked back into life by claiming that it was committed to conceal another crime. Under New York’s penal law, section 175.10, it can be a felony if the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

For months, Bragg has suggested that the “other crime” was the violation of federal election laws, suggesting that the payment was really a campaign contribution Trump made to himself that was not properly recorded. The problem is that the Justice Department investigated that crime already and decided that it was not a viable criminal claim. It did not even seek a civil fine.

Bragg’s predecessor and Bragg himself rejected the theory behind this prosecution. But then a pressure campaign led Bragg to green-light a prosecution roughly eight years after the 2016 campaign.

In the trial, Bragg added a type of frying pan flip to his Rube Goldberg contraption by arguing that Trump may have been trying to hide his violation of another dead misdemeanor under yet another New York election law prohibiting “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.”

In other words, Trump was conspiring to try to win his own election. This even though the notations were made after he had won the election, and even though Trump was running for a federal, not a state office.

So again, what is the unlawful means?

The machine then flips you back to the beginning — seeking “to influence the election.” There are still the federal election violations, but that theory was rejected after an investigation. And if it were a real crime, it would be brought by federal, not state prosecutors.

There are also the misdemeanor falsifications of business records under section 175.05. So, Bragg would use one dead misdemeanor to trigger a second dead misdemeanor to create a felony on the simple notations used to describe payments for a completely legal nondisclosure agreement.

This circular reasoning is already incredibly creative, but the actual evidence used to propel this ball through the machine is even wackier. Bragg decided to start with a witness to discuss an affair that is not part of the indictment. David Pecker, former publisher of the National Enquirer tabloid, had supposedly been paid to kill a story of a Trump affair with a different woman, Karen McDougal, a former Playboy model.

Pecker proceeded to make the prosecution case even more convoluted. On cross examination, Pecker admitted that Trump told him that he knew nothing about any reimbursement to Cohen for any hush money, that he had killed or raised such stories with Trump for decades before he ever announced for president and that he had also killed stories for other celebrities and politicians, including Arnold Schwarzenegger, Tiger Woods, Rahm Emanuel and Mark Wahlberg.

He also testified that Trump told him that paying hush money never really worked because stories still get out. And he understood that Michael Cohen was working as Trump’s personal counsel, not his campaign counsel. Finally, he testified that Trump had no direct involvement in arranging any payments to McDougal.

Pecker added that Bragg’s star witness, Michael Cohen, commonly exaggerated and often became loud and argumentative. Cohen will effectively ask the jury to send his former client to jail for following his own legal advice.

Bragg will now call to the stand Cohen, whom a judge just recently denounced as a serial perjurer who is continuing to game the system.

Even as legal experts debate what crime can be found in any of these flips and dips, Judge Juan Merchan seems content to listen as this weird machine bleeps and whirls in his courtroom.

That is why Bragg has created the perfect Rube Goldberg attraction. The artist himself explained his unlikely success by saying, “It just happened that the public happened to appreciate the satirical quality of these crazy things.”

In New York, that appreciation has moved from the satirical to the legal.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

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The Constitutional Abyss: Justices Signal a Desire to Avoid Both Cliffs on Presidential Immunity


By: Jonathan Turley | April 26, 2024

Read more at https://jonathanturley.org/2024/04/26/free-fall-or-controlled-descent-justices-signal-a-desire-to-avoid-both-cliffs-on-presidential-immunity/

Below is my column in the New York Post on yesterday’s oral arguments on presidential immunity. As expected, with the exception of the three liberal justices, the Court appears to be struggling to find a more nuanced approach that would avoid the extreme positions of both parties. Rather than take a header off either cliff, the justices seem interested in a controlled descent into the depths of Article II.

Here is the column:

Writer Ray Bradbury once said, “Living at risk is jumping off the cliff and building your wings on the way down.”

In Thursday’s case before the Supreme Court on the immunity of former President Donald Trump, nine justices appear to be feverishly working with feathers and glue on a plunge into a constitutional abyss. It has been almost 50 years since the high court ruled presidents have absolute immunity from civil lawsuits in Nixon v. Fitzgerald. The court held ex-President Richard Nixon had such immunity for acts taken “within the ‘outer perimeter’ of his official responsibility.”

Yet in 1974’s United States v. Nixon, the court ruled a president is not immune from a criminal subpoena. Nixon was forced to comply with a subpoena for his White House tapes in the Watergate scandal from special counsel Leon Jaworski. Since then, the court has avoided any significant ruling on the extension of immunity to a criminal case — until now.

There are cliffs on both sides of this case. If the court were to embrace special counsel Jack Smith’s arguments, a president would have no immunity from criminal charges, even for official acts taken in his presidency. It would leave a president without protection from endless charges from politically motivated prosecutors.

If the court were to embrace Trump counsel’s arguments, a president would have complete immunity. It would leave a president largely unaccountable under the criminal code for any criminal acts.

The first cliff is made obvious by the lower-court opinion. While the media have largely focused on extreme examples of president-ordered assassinations and coups, the justices are clearly as concerned with the sweeping implications of the DC Circuit opinion.

Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, instead offering little more than a judicial shrug.

Roberts read its statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws” and noted it sounds like “a former president can be prosecuted because he is being prosecuted.”

The other cliff is more than obvious from the other proceedings occurring as these arguments were made. Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg.

If the justices want insight into the implications of denying any immunity, they just need to look north to New York City.

The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.

Alvin Bragg is the very personification of the danger immunity is meant to avoid.

With cliffs to the left and the right, the justices are looking at a free-fall dive into the scope of constitutional and criminal law as they apply to presidential conduct. They may be looking not for a foothold as much as a shorter drop.

Some of the justices are likely to be seeking a third option where a president has some immunity under a more limited and less tautological standard than the one the DC Circuit offered. The problem for the court is presidential privilege and immunity decisions are meant to give presidents breathing room by laying out bright lines within which they can operate. Ambiguity defeats the purpose of such immunity. So does a test that turns on the motivation of an official act.

The special counsel insists, for example, Trump was acting for his personal interest in challenging certification and raising electoral fraud since he was the other candidate. But what if he wasn’t on the ballot — would it have been an official function to raise such concerns for other candidates?

When pressed on the line between official and nonofficial conduct, the special counsel just dismissed such concerns and said Trump was clearly acting as an office-seeker not an officeholder.

Likewise, the special counsel argued the protection for presidents must rest with the good motivations and judgment of prosecutors.

It was effectively a “Trust us, we’re the government” assurance. Justice Samuel Alito and others questioned whether such reliance is well placed after decades of prosecutors’ proven abuses.

Finally, if there is no immunity, could President Barack Obama be prosecuted for ordering the killing of a citizen by drone attack and then killing his son in a second drone attack? The government insisted there is an exception for such acts from the murder statute.

In the end, neither party offers a particularly inviting path. No immunity or complete immunity each holds obvious dangers.

I have long opposed sweeping arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are struggling with how to define official versus nonofficial conduct.

The line-drawing proved maddening for the justices in the oral argument. The most they could say is similar to the story of the man who jumped off a building. As he passes an office window halfway down, another man calls out to ask how he’s doing. The jumper responds, “So far so good.”

As the justices work on a new set of legal wings, anything is possible as the nation waits for the court to hit ground zero in the middle of the 2024 presidential election.

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Alvin Bragg has his Trump trial, All he Needs Now is a Crime


By: Jonathan Turley | April 24, 2024

Read more at https://jonathanturley.org/2024/04/24/alvin-bragg-has-his-trump-trial-all-he-needs-now-is-a-crime/

Below is an expanded version of my column in the New York Post on the start of the Trump trial and much awaited explanation of District Attorney Alvin Bragg on the underlying alleged criminal conduct. The curious aspect of the case is that the prosecutors are stressing that they will prove largely uncontested facts. Indeed, if all of these facts of payments, non-disclosure agreements, and affairs are proven many of us (including liberal legal experts) are doubtful that there is any cognizable crime.

Here is the column:

For many of us in the legal community, the case of Manhattan District Attorney Alvin Bragg against former president Donald Trump borders on the legally obscene: an openly political prosecution based on a theory that even some liberal pundits have dismissed. Yet, this week the prosecution seemed like they were actually making a case for obscenity.

No, it was not the gratuitous introduction of an uncharged alleged tryst with a former Playboy bunny or planned details on the relationship with a former porn star. It was the criminal theory itself that seemed crafted around the standard for obscenity famously described by Supreme Court Justice Potter Stewart in the case of Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define [it] … But I know it when I see it.”

After months of confusion of what crime they were alleging in the indictment, the prosecution offered a new theory that is so ambiguous and undefined that it would have made Justice Stewart blush.

New York prosecutor Joshua Steinglass told the jury that one of the crimes that Trump allegedly committed in listing the payments to Stormy Daniels as a “legal expense” was New York Law 17-152. This law states “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

So they are arguing that Trump committed a crime by conspiring to unlawfully promote his own candidacy. He did this by paying to quash a potentially embarrassing story and then reimbursing his lawyer  with other legal expenses.

Confused? You are not alone.

It is not a crime to pay money for the nondisclosure of an alleged affair. Moreover, it is also not a federal election offense (which is the other crime alleged by Bragg) to pay such money as a personal or legal expense. It is not treated under federal law as a political contribution to yourself.

Yet, somehow the characterization of this payment as a legal expense is being treated as an illegal conspiracy to promote one’s own candidacy in New York.

The Trump cases have highlighted a couple of New York’s absurdly ambiguous laws.  Under another law, New York Attorney General Letitia James secured an almost half of billion dollar judgment against Trump for loans where the alleged victims not only did not lose a dime but were eager for more business from his company. The law does not actually require any loss to a victim to impose a roughly $500 million penalty against a defendant that James pledged to bag in her campaign for office. While the over and under valuing of assets is common in the real estate area, James singled out Trump.

James declined to explain how this law could be used against other businesses since actual losses or injuries are not viewed as necessary. Businesses would just have to trust her and her judgment. In other words, the law could have sweeping applications, but we will know a violation under the civil law when we see it.

As with James, Bragg saw it in Trump. His predecessor did not see it. He declined charging on this basis. Bragg did to.  He stopped the investigation. However, after a pressure campaign, Bragg might not be able to see the crime, but he certainly saw the political consequences of not charging Trump.

In New York, prosecutors are expected to have extreme legal myopia: they can see no farther than Trump to the exclusion of any implication for the legal system or legal ethics. Of course, neither he nor his office has never seen this type of criminal case in any other defendant. Ever.

We have never seen a case like this one where a dead misdemeanor from 2016 could be revived as a felony just before any election in 2024. The misdemeanors in this case, including falsifying these payments, expired with the passage of the statute of limitations. But Bragg (with the help of Matthew Colangelo, a former top official in the Biden Justice Department) zapped it back into life by alleging a federal election crime that the Justice Department itself rejected as a basis for any criminal charge.

So now there is a second crime that is hard for most of us to see, at least outside of New York. Trump is accused of conspiring to promote his own candidacy by mislabeling this payment, even though it was part of a larger legal payment to his former counsel, Michael Cohen.

They do not see a crime in analogous mislabeling of payments by Democratic candidates. Take Hillary Clinton who served as senator from New York and ran for president against Trump. For months before the 2016 election, Hillary Clinton’s campaign denied that it had funded the infamous Steele dossier behind the debunked Russian collusion claims. That was untrue. When reporters tried to report on the funding story, one journalist said Elias that “pushed back vigorously, saying ‘You (or your sources) are wrong.’”

It was later discovered that the funding was hidden as legal expenses by then-Clinton campaign general counsel Marc Elias. (The FEC later sanctioned the campaign over its hiding of the funding.). Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”

Elias even went with John Podesta, Clinton’s campaign chairman, in speaking with congressional investigators and Podesta denied categorically any contractual agreement with Fusion GPS.

While the funds were part of the campaign budget, they were listed as legal expenses and the Clinton people continued to insist that such payments to a former intelligence figure to put together the dossier was a legal expenditure.

It is not clear if Trump even knew how this money was characterized on ledgers or records. He paid the money to his lawyer, who had put together this settlement over the nondisclosure agreement. Cohen will soon go on the stand and tell the jury that they should send his former client to jail for following his legal advice.

In addition to running for president, Trump was a married host of a hit television show. There were ample reasons to secure an NDA to bury the story. Even if money was paid to bury these stories with the election in mind, it is not unusual or illegal. There was generally no need to list such payments as a campaign contribution because they were not a campaign contribution in the view of the federal government.

It is not even clear how this matter was supposed to be noted in records. What if the Trump employee put “legal settlement in personal matter” or “nuisance payment”? Would those words be the difference?

Again, it is not clear. But that does not appear to matter in New York. The crime may not be clear or even comprehensible. However, the identity of the defendant could not be clearer, and the prosecutors are hoping that the jury, like themselves, will look no further.

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No, It Does Not Matter Why the Man Lit Himself on Fire


By: Jonathan Turley | April 23, 2024

Below is my column in The Hill on the man who lit himself on fire outside of the New York courthouse last week. What does matter may be the reaction to such “demonstrations.”

Here is the column:

The scene outside of the New York courthouse holding the Trump trial has become a microcosm of our deep political divisions and rage this month. Images of citizens screaming at each other from across security barriers have played out nightly on news programs.

But few were prepared for what occurred Friday night, when a man threw flyers in the air, poured a flammable liquid on himself and lit himself on fire.

Some immediately rushed to use the incident to fuel their own rage. On the far left, postings and comments declared MAGA supporters were lighting themselves and “MAGA Terrorist just set himself on fire.”

For many, it seemed a fact too good to check. Even after the police and fire officials explained that the material distributed by the man did not seem to relate to the trial, journalists pushed for a connection to the pro-Trump protesters. Officials reported that the flyers concerned wacky conspiracy theories related to schools and other matters.

Max Azzarello, 37, of Florida worked briefly for Rep. Tom Suozzi (D., N.Y.), but has a criminal record of property offenses that included throwing a glass of wine on a photo of Bill Clinton. We know little of his political views beyond his conspiracy obsessions. However, does it really matter?

What should be clear is that he was a deeply disturbed individual. Yet even self-immolation may no longer be treated as per se evidence of mental illness. In today’s politics, even setting yourself on fire can be rationalized.

An event was held recently at UCLA in which two psychiatrists appeared to rationalize self-immolation in the cause of people in Gaza.

Ragda Izar and Afaf Moustafa were reportedly discussing the self-immolation in front of Israel’s embassy of airman Aaron Bushnell in February to protest Israeli policies. It was referred to as a “revolutionary suicide” on the panel on “Depathologizing Resistance.”

UCLA’s Izar stated that Bushnell “carried a lot of distress…but does that mean that the actions he engaged in are any less valid?” She suggested that it is “normal to be distressed when you’re seeing this level of carnage [in Gaza].”

Moustafa is quoted as saying that “Psychiatry pathologizes non-pathological…reactions to a pathological environment or pathological society. It’s considered illness to choose to die in protest of the violence of war but perfectly sane to choose to die in service of the violence of war.”

There have been a few prominent historical self-immolations in protest, including the famous case of Thich Quang Duc, who burned himself alive to protest the Vietnam War in 1963. However, as lay persons, most of us would hazard to say that it is not “normal” or “valid” to set oneself on fire in a protest.

The dividing line between rage and reason has always been contextual. In my forthcoming book, “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how we have faced regular periods of rage in our history. How one views rage depends largely on the underlying viewpoint. This country was born in rage with the Boston Tea Party, where a riot with massive property damage is celebrated as a moment of liberation.

Yet even self-immolation may now be viewed as somehow valid when used to oppose Israeli policies or other “distressful” realities. If Azzarello was motivated by his view of a conspiracy among educators or Trump’s trial, would his self-immolation also be viewed as valid?

Relativism has become deeply embedded in our politics, as we see in the continuing efforts to shut down opposing views. A year ago, Stanford University was the scene of a disgraceful shout-down of a federal judge who wanted to share his jurisprudential views. The university apologized to federal appellate Judge Kyle Duncan, particularly after a dean appeared to blame him at the event for “triggering” students by sharing his opposing views. The situation did not improve after the response of the university. At the time, I criticized Stanford President Marc Tessier-Lavigne and Law School Dean Jenny Martinez after they declined to punish any students. Instead, all students were required to watch a widely mocked video on free speech.

One year later, the Foundation for Individual Rights and Expression released “The Judge Duncan Shoutdown: What Stanford Students Think.” It turns out that 54 percent of Stanford students believe Judge Duncan’s visit should have been canceled by the administration. Seventy-five percent said that “shouting down speakers to prevent them from speaking on campus” is acceptable at least sometimes. Most chilling, almost 40 percent of the students stated that using physical violence to shut down a campus speaker can at times be acceptable.

Of course, the same students supporting violence to silence opposing views would be triggered and traumatized by others preventing them from hearing their own preferred viewpoints or speakers. For these deluded young people, violence is righteousness when used to silence others, but reprehensible if ever used to silence themselves.

This relativism is taught by many faculty who have publicly discussed “detonating white people,” abolishing white people, calling for Republicans to suffer,  strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and making other inflammatory statements.

Violent acts against others (or even against oneself in the case of self-immolation) can become “normal” once you accept that others have triggered a response through their conduct or speech. In recent years, we have seen journalists and lawyers throwing Molotov cocktails at police, and some justify it as a form of protest.

What we are losing is a sense of clarity or objectivity. Self-immolation is not normal whether committed by a monk or a madman. Likewise, violence against political opponents is not contextual, but wrong.

The alternative is to come up with excuses about how we must not “pathologize non-pathological…reactions to a pathological environment or pathological society.” That gobbledygook merely rationalizes the irrational and justifies the unjustifiable.

I have no familiarity with either Bushnell or Azzarello, but I know that setting yourself on fire or violently attacking others is indeed “less valid” than alternatives, such as participating in the political system. Before we stretch the spectrum of what is the new normal, we might want to consider the implications of this radical relativism that is taking hold in our political discourse. If you are heading to a rally with matches and a can of accelerant, then you have issues, and they are not political.

Jonathan Turley is the J.B. & Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

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Supreme Court Takes Up Obstruction Case Affecting J6 Defendants


By: Jonathan Turley | April 16, 2024

Read more at https://jonathanturley.org/2024/04/16/supreme-court-takes-up-obstruction-case-affecting-j6-defendants/

Today, the U.S. Supreme Court will take up Fischer v. United States, a case that could fundamentally change many cases of January 6th defendants, including the prosecution of former president Donald Trump. The case involves the interpretation of a federal statute prohibiting obstruction of congressional inquiries and investigations.

The case concerns 18 U.S.C. § 1512(c)(2), which provides:

“Whoever corruptly—(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

Joseph Fischer was charged with various offenses, but U.S. District Judge Carl J. Nichols of the District of Columbia dismissed the 1512(c)2 charges. Judge Nichols found that the statute is exclusively directed to crimes related to documents, records, or other objects.

The D.C. Circuit reversed and held that Section 1512(c)(2) is a “catch all” provision that encompasses all forms of obstructive conduct. Circuit Judge Florence Pan ruled that the “natural, broad reading of the statute is consistent with prior interpretations of the words it uses and the structure it employs.” However, Judge Gregory Katsas dissented and rejected “the government’s all-encompassing reading.”

The Court will now consider the question of whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.

The law itself was not designed for this purpose. It was part of the Sarbanes-Oxley Act of 2002 and has been described as “prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.”

Oral argument is today and I will be covering the arguments on X (Twitter).

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“Support Your Local Antifa”: Alabama Man Arrested in Alleged Political Bombing


By: JonathanTurley.org | April 12, 2024

Read more at https://jonathanturley.org/2024/04/12/__trashed-2/

Kyle Benjamin Douglas Calvert, 26, has become the latest Antifa member arrested for alleged political violence. Calvert is accused in the explosion of an IED device outside of Alabama Attorney General Steve Marshall’s office in downtown Montgomery at around 3:42 a.m. on February 24. For years, Democratic politicians and the media have downplayed the violence of Antifa, even questioning its very existence. These photos may help them come to grips with the reality of Antifa.

The Department of Justice (DOJ) announced that Calvert has been charged with the malicious use of an explosive and possession of an unregistered destructive device. If convicted, Calvert faces a mandatory minimum of five years and a maximum of 20 years in prison, according to the DOJ.

Before the explosion, Calvert put up stickers, including those promoting Antifa, including stickers reading “Support your local antifa.”

Calvert, who reportedly identifies as transgender and nonbinary, expressed his “belief that violence should be directed against the government, and he has described his inability to control his own violent, aggressive impulses,” according to the DOJ. It supplied pictures of the nails and other evidence used in the construction of the bomb.

Despite the denial of its existence by figures like Rep. Jerry Nadler (D., N.Y.), I have long written and spoken about the threat of Antifa to free speech on our campuses and in our communities. This includes testimony before Congress on Antifa’s central role in the anti-free speech movement nationally.

As I have written, it has long been the “Keyser Söze” of the anti-free speech movement, a loosely aligned group that employs measures to avoid easy detection or association.  Yet, FBI Director Chris Wray has repeatedly pushed back on the denials of Antifa’s work or violence. In one hearing, Wray stated “And we have quite a number — and “Antifa is a real thing. It’s not a fiction.”

Some Democrats have played a dangerous game in supporting or excusing the work of Antifa. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. His own son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”

It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the “bible” of the Antifa movement: Rutgers Professor Mark Bray’s Antifa: The Anti-Fascist Handbook.

Bray emphasizes the struggle of the movement against free speech: “At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’”

Bray admits that “most Americans in Antifa have been anarchists or antiauthoritarian communists…  From that standpoint, ‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.” It is an illusion designed to promote what Antifa is resisting “white supremacy, hetero-patriarchy, ultra-nationalism, authoritarianism, and genocide.” Thus, all of these opposing figures are deemed fascistic and thus unworthy of being heard.

Bray quotes one Antifa member as summing up their approach to free speech as a “nonargument . . . you have the right to speak but you also have the right to be shut up.”

Hopefully, if found guilty, Calvert will actually face punishment. We previously discussed the case involving another Antifa member who was convicted after taking an ax to the door of Sen. John Hoeven’s office in Fargo. He was given no jail time, and the FBI even returned his ax. He later mocked the government by posting on social media “Look what the FBI were kind enough to give back to me!”

This case will no doubt be different . . . there is no bomb to give back to Calvert.

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Berkeley Prosecutors Cut Probation Deal for Scientist Who Tried to Kill Colleague


By: JonathanTurley.org | April 11, 2024

Read more at https://jonathanturley.org/2024/04/11/berkeley-prosecutors-cut-probation-deal-for-scientist-who-tried-to-kill-colleague/

I have been a criminal defense attorney for my entire career, but there is a case out of Berkeley, California that is a real head scratcher. David Xu was the chief metallurgist for a company called Berkeley Engineering and Research (BEAR) and was caught on tape trying to poison a colleague. His actions are blamed for not only causing harm to Rong Yuan, but her parents. After spending only 10 days in jail, Alameda County prosecutors and a judge signed off on a probation deal in the case.

Xu was arrested back in 2019 after Yuan became suspicious that her illness (which she thought might be cancer) might be related to a water bottle that she used at work. When her parents used the bottle to cook, they also became ill. She set up a spy camera at work and caught David Xu tampering with the water bottle. It was tested and found to contain “extraordinarily high levels of cadmium, a poisonous heavy metal.”

That seems a pretty strong case for two counts of poisoning and an attempted murder prosecution. Yet, the prosecutors dropped the attempted murder charge and accepted a plea on the two poisoning counts. Then a probation officer recommended no jail time. The officer wrote that

“The defendant is highly educated and living at home with his wife and children. He is employed and earning a stable income. Although this matter represents the first and only offense, it was serious in nature and could have resulted in death or serious illness of the victims…. It is the hopes of this deputy that the defendant will take advantage of this second chance and can satisfactorily complete this probation.”

Alameda County DA Pamela Price

Even on the two poisoning counts, one would expect some jail time. This man hurt three people and could have killed a colleague. Yet, Alameda County DA Pamela Price signed off on letting Xu spend less than two weeks in jail for his crimes.

It is not clear what it takes to get actual jYet, Alameda County DA Pamela Price signed off on letting Xu spend less than two weeks in jail for his crimes. ail time in Alameda County under Price. The San Francisco Chronicle was unable to get sentencing data from her office and Price is the subject of a recall campaign over her lax enforcement record.

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Vanderbilt Students Expelled Over Violent Protest, Including Activist Recognized by the White House


By: Jonathan Turley | April 9, 2024

Read more at https://jonathanturley.org/2024/04/09/vanderbilt-students-expelled-over-violent-protest-including-activist-recognized-by-the-white-house/

For years, we have discussed the failure of universities to take actions against faculty and students shutting down events or acting unlawfully, including faculty guilty of criminal assault. Now, Vanderbilt has expelled three students after anti-Israel protests, including Jack Petocz, a political activist recognized by the White House and featured prominently in the New York Times and other news outlets.

According to the Vanderbilt Hustler and The College Fix, the students were arrested for allegedly assaulting a security guard amid raucous anti-Israel protests inside an Administration building late last month.

A security video shows a security officer overwhelmed as he tried to keep protesters out of Kirkland Hall.

The officer is shown being pushed down the hall before leaving the frame of the video camera.

Petocz posted a denial on X:

“I did not touch a community service officer, nor am I anywhere near the individual in the video. I’d implore you to trust a student activist over rich, powerful, white men, but that’s your choice.”

He insisted that he and the other students were only “peacefully protesting the genocide in Palestine.”

Petocz’s activism, including opposing the Florida parental rights law, has been widely celebrated in the media including an article that featured him in a January 2022 front story on fighting conservative school boards. President Biden invited him to the White House for a bill signing and took a picture with him in the Oval Office.

It appears that universities are growing impatient with protesters, particularly after a series of sit-ins. Recently, students were suspended for storming the office of Pomona College President Gabrielle Starr. Nineteen students were reportedly arrested.

Starr claimed in an open letter that racial slurs were used by students and declared:

“These actions are actively destructive of the values that underpin our community. Any participants in today’s events … who turn out to be Pomona students, are subject to immediate suspension. Students from the other Claremont Colleges will be banned from Pomona’s campus and subject to discipline on their own campuses.”

The actions of the university have led to protests on campus and calls for the student board to reverse that suspensions.

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The Hunted and the Hunter: How the Menendez Superseding Indictment Shatters Hunter Biden’s Claim of Selective Prosecution

Below is my column in Fox.com on the superseding indictment of Sen. Bob Menendez (D., N.J.), who faces new charges after the cooperation of a former associate. The new charges only magnified the striking similarities between the corruption scandals involving Menendez and Hunter Biden. The timing could not be more interesting given filings the same week by Hunter Biden claiming selective prosecution.

Here is the column:

Sen. Bob Menendez, D-N.J., was in court this week for another superseding indictment brought by federal prosecutors in the Southern District of New York. Rather than the four original counts, he now faces 18 counts with his wife, Nadine Arslanian Menendez, and alleged co-conspirators Wael Hana and Fred Daibes.

What is most notable is not the proliferation of counts but the lack of comparative charges in the pending case against Hunter Biden. Some of us have long raised concerns over the striking similarity in the alleged conduct in both cases, but the absence of similar charges against the president’s son. That contrast just got even greater.

The allegations in the two cases draw obvious comparisons.

Menendez is accused of accepting a $60,000 Mercedes-Benz as part of the corrupt practices. In Hunter’s case, it was a $142,000 Fisker sports car.  For Menendez, there were gold bars worth up to $120,000. For Biden, there was the diamond allegedly worth $80,000. Underlying both cases are core allegations of influence peddling and corruption. However, the Justice Department threw the book at Menendez while minimizing the charges against Biden. That includes charging Menendez as an unregistered foreign agent under the Foreign Agents Registration Act (FARA). Many of us have said for years that the treatment of Hunter under FARA departs significantly from the treatment of various Trump figures like former Trump campaign chair Paul Manafort as well as Menendez.

Now, there is a new layer of troubling comparisons to be drawn in the two cases.

The superseding indictment incorporates new charges after the plea and cooperation of Menendez’s former co-defendant and businessman Jose Uribe.

Uribe appears to have supplied the basis for some of the new charges, including a telling account with Nadine Menendez. She allegedly asked Uribe what he would say to law enforcement about the payments used for a Mercedes-Benz convertible and Uribe said that he could say that the payment were a “loan.”  Nadine Menendez responded that “sounded good.”

The loan discussion hit a familiar cord with those of us who have written about the Biden corruption scandal. The Bidens have repeatedly referred to payment from foreign sources as “loans.” That most notoriously included millions given by his counsel Kevin Morris. In some cases, foreign money was received by President Joe Biden’s brother James and then immediately sent to the president’s personal account marked as a loan repayment. James admitted that the $40,000 was coming from the Chinese.

The Justice Department in the Menendez case dismissed the claim of loans as merely a transparent effort to hide influence peddling. That includes not just the convertible payment but  more than $23,000 that one businessman made toward the senator’s wife’s mortgage.

Menendez and Biden share the array of luxury gifts, cars, and loans. However, the most important common denominator was the underlying corruption. Both cases are classic examples of influence peddling, which has long been a cottage industry in Washington, D.C. What they do not share is the same level of prosecution or press support. Menendez is a pariah in Washington and Hunter is the president’s son.

Menendez is blamed by many inside the Beltway not for being corrupt but for being open about it. The fact that others have been prosecuted for conduct similar to his own has not stopped Hunter from claiming victim status. He has told courts that even the few charges brought against him are evidence of selective prosecution.

In the most recent filing, Special Counsel David Weiss dismissed many of Hunter’s claims as “patently false” and noted that Hunter Biden virtually flaunted his violations and engaged in obvious efforts to evade taxes and hide his crimes. Weiss further noted that other defendants did not write “a memoir in which they made countless statements proving their crimes and drawing further attention to their criminal conduct.” It was a devastating take-down of Hunter’s claims, but it did not address the conspicuous omission of charges brought against Menendez, including FARA charges.

It also does not address the fact that the Justice Department not only allowed the statute of limitations to run on major crimes but sought to finalize an obscene plea agreement with no jail time for Hunter. It only fell apart when a judge decided to ask a couple of cursory questions of the prosecutor, who admitted that he had never seen an agreement this generous for a defendant. Weiss noted in his filing that they filed new charges only after Hunter’s legal counsel refused to change the agreement and insisted that it remained fully enforceable.

As Hunter continues to claim to be the victim of selective prosecution in various courts, judges need only to look over the Menendez case to see the truth of the matter. Hunter is not the victim of selective prosecution but the beneficiary of special treatment in the legal system.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

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“Patently False”: Special Counsel Files Blistering Reply to Hunter Biden Motion to Dismiss


Jonathan Turley | March 10, 2024

Read more at https://jonathanturley.org/2024/03/10/patently-false-special-counsel-files-blistering-reply-to-hunter-biden-motion-to-dismiss/

Special Counsel David Weiss has filed a blistering opposition to the motion to dismiss by Hunter Biden in California that cites his own book and conflicting statements as creating “nothing more than a house of cards.” The filing (below) shows how Hunter’s claims (repeated by many in the media) collapse under even cursory review in court.

Weiss’s filing bulldozes through arguments of selective prosecution and political influence in the case. He specifically notes that Biden repeatedly makes statements without any proof or support in his filings.

The filing begins by outright accusing Hunter Biden and his counsel of lying to the court about what occurred after the earlier plea agreement fell apart in court after the judge in Delaware asked about a sweeping immunity clause in paragraph 14. Notably, Weiss said that it was Hunter Biden’s legal team that inexplicably shut down negotiations by playing hardball in seeking to preserve the original agreement:

“The government proposed changes to the agreements that addressed only the issues identified during the hearing. Exh. 3. The defendant rejected these counterproposals on August 7, 2023. Id. Instead, the defendant began insisting that the proposed Diversion Agreement had bound both parties, even though it had not been approved by the Chief U.S. Probation Officer, a condition precedent to formation that would have brought it into effect. Moreover, by taking this position, he chose to shut down any further negotiations that could address the issues raised at the hearing.”

It then accuses Biden and his counsel as outright lying to the court:

“In his motion, in multiple places, the defendant falsely states that DOJ ‘inexplicably demanded Mr. Biden plead guilty to felonies with jail time.’ He cites nothing in support of his false claims, which is a consistent theme across his motions. The government attaches as Exhibit 3 a redacted letter from the defendant’s counsel which confirms the defendant understood that the government had proposed changes to only those paragraphs that were at issue during the hearing, not paragraphs regarding the charges the defendant must plead to or any “jail time” the defendant must serve. As shown in Exhibit 3, the government proposed changes to Paragraphs 14, 15 and 17 of the Diversion Agreement, and Paragraph 5(b) of the Plea Agreement. The government proposed no changes to Paragraph 1 of the Plea Agreement, which required the defendant to plead guilty to two misdemeanors. Nor did the government propose any changes to Paragraph 6 of the Plea Agreement, in which the United States had agreed to recommend a sentence of probation. The defendant rejected these counterproposals and refused further negotiations…His newly invented claim in his motion that the government “inexplicably demanded Mr. Biden plead guilty to felonies with jail time” is patently false, unsupported by evidence, and belied by his own letter and representations in his filings in the Delaware case.”

The rest of the filing is equally devastating.

Weiss notes that Biden repeatedly misrepresents facts or claims authority that does not exist. He notes that Biden does not cite any cases of similarly situated individuals who were not prosecuted. For example, it notes:

“The only attempt the defendant makes to link animus directly to prosecutors is his claim that “reports indicate Mr. Weiss himself admitted [the charges] would not have been brought against the average American.” Motion at 13. However, his citation does not include a reference to reports (plural), rather it includes a single New York Times citation, which includes a denial immediately after the quoted excerpt: “A senior law enforcement official forcefully denied the account.” An anonymous account that is “forcefully denied” is not evidence that can satisfy the defendant’s burden of producing “clear evidence” of discriminatory intent and animus by prosecutors.”

In rejecting the two cases that he references, Weiss takes a swipe at Hunter’s book. When he published the book, some of us noted that he was making statements against his own interest in possible prosecutions. Weiss just made that a reality:

“The defendant compares himself to only two individuals: Robert Shaughnessy and Roger Stone, both of whom resolved their tax cases civilly for failing to pay taxes. Shaughnessy failed to file and pay his taxes, but he was not alleged to have committed tax evasion. By contrast, the defendant chose to file false returns years later, failed to pay when those returns were filed, and lied to his accountants repeatedly, claiming personal expenses as business expenses. Stone failed to pay his taxes but did timely file his returns, unlike the defendant. Neither Shaughnessy nor Stone illegally purchased a firearm and lied on background check paperwork. And neither of them wrote a memoir in which they made countless statements proving their crimes and drawing further attention to their criminal conduct. These two individuals are not suitable comparators, and since the defendant fails to identify anyone else, his claim fails.”

The brief even takes a shot at the use of public statements by former Attorney General Eric Holder to prove selective prosecution, noting that Holder seems hopelessly conflicted in his own claim of selective prosecution:

“The defendant cites media commentary by former Attorney General Eric Holder, who acknowledged that the defendant is not similarly situated to other individuals: ‘This isn’t some kind of ordinary run-of-the-mill tax case, [] this was an abuse of the tax system . . .’”

The filing annihilates the public claims of Hunter and his allies. It is the difference between making a case in the court of public opinion and making a case in an actual court of law.

Special Counsel Opposition

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Of Pings and Prosecutors: The Spectacular Imposition of the Willis-Wade Testimony


By: Jonathan Turley | March 6, 2024

Read more at https://jonathanturley.org/2024/03/06/of-pings-and-prosecutors-the-spectacular-imposition-of-willis-wade-testimony/

Below is my column in the New York Post on the expanding controversy surrounding the disqualification of Fani Willis and Nathan Wade. In today’s legislative hearing in Atlanta, counsel Ashleigh Merchant testified that cellphone records on one occasion show “pings” on Wade’s cellphone from his home to the vicinity of Willis’s home followed by a call to Willis and then hours of silence. The next morning, she claims, the data shows him going back to his home and texting Willis. It is only the latest example of how evidence against the two prosecutors is growing and possible explanations are dwindling in the case.  The greatest problem is how these allegations are beginning to mirror those against the defendants being prosecuted by Willis and Wade.

Here is the column:

When Fani Willis ran against her former boss Paul Howard in 2020, she highlighted the experience that she would bring to the position.

Howard was embroiled in a sexual harassment scandal involving his relationship with women in his office.

Willis offered both experience and ethical leadership, including pledging repeatedly that “I will certainly not be choosing to date people that work under me.”

Willis is now accused of the wrong type of relevant experience.

She and her lead prosecutor are not just accused of having an intimate relationship, but they are accused of some of the same underlying conduct that they are prosecuting in the election interference case against former President Donald Trump and other defendants. That includes allegations of filing false statements with courts and even influencing witnesses.

This week, another witness came forward with an explosive new allegation against Willis. In the prior hearings in Atlanta, Nathan Wade was confronted with what appears to be false statements made to the court in his divorce case, false statements that he repeated under oath in disqualification testimony. For example, Wade was asked about his denial of “a sexual relationship during the time of his marriage and separation” up to and including May 30, 2023.

That would obviously include the sexual relationship with Willis in 2022 and possibly earlier. Wade, however, denied any such sexual relationship and said he confined the question to sexual relations meaning an affair “in the course of my marriage.” Of course, his marriage was ongoing even during the divorce and the question asked about any relationship up to May 2023.

Wade and Willis have also been contradicted in their testimony by various witnesses who said they lied about their intimate relationship starting after he was hired in 2022. That includes prior text messages in which Wade’s former partner and lawyer Terrence Bradley repeatedly told opposing counsel that he was “absolutely” sure that the relationship began much earlier.

A former close friend of Willis also said they were lying.

This is notable because Wade and Willis brought 19 individual counts of false statements, false filings, or perjury against the defendants in their case. There are now substantial allegations that they may have committed the very same criminal conduct.

Now another prosecutor has come forward to say that Bradley also told her repeatedly and with complete clarity and certainty that Wade and Willis were involved long before his hiring. Those conversations allegedly occurred as late as January 2024 with Cindi Lee Yeager, a co-chief deputy district attorney for Cobb County.

What is even more alarming is Yeager’s account that she overheard Willis tell Bradley on the telephone that “they are coming after us. You don’t need to talk to them about anything about us.” If true, that call could raise questions of influencing potential witnesses.

Willis can legitimately point out that the calls was allegedly in September 2023, before Bradley was called as a witness and the current proceedings had started. However, it would indicate that Willis was aware that Bradley would be asked questions about past payments and relationships with him and his partner Wade.

If that seems loose, you should take a look at the case Willis brought against these defendants. Many of us have been critical of the overarching racketeering conspiracy alleged by Willis among the 18 defendants.

The false statement charges often dismiss plausible alternative interpretations or the paucity of evidence of intent.

They are also prosecuting the attempt to influence witnesses.

The question is whether Willis or Wade had other communications indirectly or directly with Bradley.

His testimony was widely panned and he showed all of the spontaneity and comfort of a hostage video.

Willis is a powerful political figure in Atlanta and Bradley did everything short of faking his death to avoid assisting in her disqualification.

The odds are that Judge Scott McAfee is not inclined to hold additional hearings. He is ready to rule.

It is hard to imagine these two prosecutors continuing with so many allegations hanging over the case. They have placed their personal interests before their office and their case.

However, the standard for disqualification is murky. For Willis, the case has become a modern political tragedy a la movie classic “All the King’s Men,” about a reformer who became everything that he once denounced in the corruption of powerful figures.

Willis ran against a district attorney accused of using his office to pursue sexual affairs and continues to claim that she “restored integrity” to her office through ethical leadership.

In her combative testimony, Willis attacked the media, opposing counsel and the public for questioning her actions. She declared, “You’re confused. You think I’m on trial. These people are on trial for trying to steal an election in 2020. I’m not on trial, no matter how hard you put me on trial.”

The question is whether the courts, prosecutors or bar officials will show the same vigor in pursuing these allegations against Wade and Willis that they have shown against their own defendants. If so, she could well find herself “on trial” as the allegations mount against her and her lead prosecutor.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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