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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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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.

Category:

Crime, Political

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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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Law, Political

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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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Law, Political

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Michael Cohen Goes on TikTok with New Trump Taunt … and Announces Campaign for Congress?


By: Jonathan Turley | May 9, 2024

Red more at https://jonathanturley.org/2024/05/09/michael-cohen-goes-on-tiktok-with-new-trump-taunt-and-announced-campaign-for-congress/

Fox is reporting that Michael Cohen was back on TikTok last night using the Trump trial to troll for dollars. Cohen reportedly appeared in a teeshirt showing Trump in an orange jumpsuit and asked for more followers. He also reportedly announced his candidacy for Congress, which would allow him to take one of the seemingly few oaths that the serial perjurer has not violated.

Who would have thought that District Attorney Alvin Bragg calling a porn star to the stand would be the moral high ground for key witnesses?  Next could be a disbarred, convicted perjurer who is still seeking to make money off the case.

Cohen previously pledged not to discuss the trial after many of us objected to Judge Juan Merchan’s gag order as unconstitutional, particularly as to Cohen who has continued to attack Trump on the air while defending the gag order for his own protection.

Cohen’s prior promise lasted a record of a couple days before he broke it on TikTok. Now he is appearing with a tee-shirt mocking Trump and using the moment to pursue a congressional seat.

For Judge Merchan, this is precisely what he was warned about. He has stubbornly enforced his poorly written and excessively broad order. After admitting that this was a “case of first impression” on the extension of gag orders to such things as repostings on social media, Merchan clarified his meaning not with a new order but by imposing sanctions on Trump.

Trump is now appealing the gag order and Cohen is doing his best to undermine not just his residual credibility but that of the court. Between the lurid testimony of Daniels and the continued antics of Cohen, Merchan looks completely feckless, if not farcical, in his own courtroom.

For Merchan and the prosecutors, none of this can come as a surprise.

There is an old fable of a scorpion who wants to cross a river and convinced a hesitant frog to carry him on its back. After all, if he stung the frog in the river, they both would die. That seemed logical so the frog agreed to do so only to have the scorpion deliver a lethal sting halfway across. When the frog asked why the scorpion would doom them both, the scorpion replies: “I am sorry, but I couldn’t resist the urge. It’s in my nature.”

Cohen has always been open as a grifter.

The problem is not Cohen. He continues to act to his nature. The problem is a political and legal system that enables him as a serial liar. It is a system that continues to call Cohen to the stand and ask him to swear to God to offer the “truth, the whole truth, and nothing but the truth” without a signature joke drum roll before his punchline.

Yet, Cohen now wants to take an oath of office in the legislative branch.  He seems to collect oaths the way some collect animal heads for a trophy wall. The question is whether other members could suppress laughter when he swears that he is taking the oath of office “without… purpose of evasion.”

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Law

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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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David Hogg Group Hit With Allegations Over Spending Practices and Policies


By: JonathanTurley.org | April 9, 2024

Read more at https://jonathanturley.org/2024/04/09/david-hogg-group-hit-with-allegations-over-spending-practices-and-policies/#more-217734

(Official White House Photo by Adam Schultz)

Gun control activist David Hogg has been hit with allegations over the spending practices of his group Leaders We Deserve PAC. Conservative outlets are reporting that the group spent comparably little on actual candidates as opposed to travel and expenses. His prior counsel is a familiar name in such controversies in Washington: former Clinton campaign general counsel Marc Elias.

Hogg created a group in the aftermath of the 2022 midterm elections to elect Generation Z politicians to offices throughout the country. The group was given favorable national coverage in major media outlets. He explained that contributions would be used to elect young Democrat candidates:

“[We’re] trying to pick them and say, you know, we would like to help you run for office, we’ll supply you with all of the resources that you need and help basically coach you and hold your hand to get there, which is kind of the gap that’s in the space right now, for at least young people at the state legislative level.”

Federal filings reportedly show that year-end 2023, Leaders We Deserve raised over $3 million. That is impressive for its first year in operation.

The conservative sites allege that the group spent “only about $263,000 on its stated mission of electing candidates from Generation Z to office combined with donations to other Democrat Party committees and groups—and instead spent more than $1.4 million on disbursements to themselves for payroll and to political consulting firms and legal fees, in addition to travel and entertainment expenses like hotels, flights, and meals.” However, it reportedly spent more than $1,314,000 on travel and related expenses while giving $80,000 to the Elias Law Group.

Previously, when allegations of self-dealing and accounting improprieties were raised with regard to Black Lives Matter, the group’s attorney, Elias, immediately stood out for many. Elias resigned from his “key role” with BLM as the scandal exploded.

(MSNBC/via YouTube)

Elias’s name has now again popped up in the controversy involving Hogg, who is accused of raising millions to support liberal candidates but allegedly spending only $263,000 on such candidates while paying $83,000 to the Elias law firm. (These figures are reportedly from federal filings but neither Elias nor Hogg have specifically addressed the media reports).

Elias has long been a controversial figure, including being sanctioned in court. He was named as the key figure in hiding the funding of the Steele dossier by the Clinton campaign, which led later to a FEC fine. Reporters accused the campaign of lying to them about the funding. Elias was also reportedly with campaign chair John Podesta when he allegedly denied such funding to congressional investigators.

Despite accusing the GOP of election denial and manipulation, Elias was also involved in alleged gerrymandering efforts and challenging the outcome of elections based on alleged problems with voting machine tallies.

Back to the most recent controversy, Hogg could argue that, as a well-known activist figure, his travel to these campaigns is the boost that the group promised donors. He is the assistance. Likewise, the group could argue that it is still getting ramped up for greater spending efforts in the fall. As for the legal fees, the group could argue that start up legal fees and reporting fees tend to be higher at the outset.

The controversy does raise some novel questions about the purpose of contributions. Hogg coming to a local campaign is likely to generate media attention for a candidate. He can also claim that he and his staff bring needed expertise and advice to novice or young candidates. That could be their interpretation of the promise to “basically coach you and hold your hand to get there.” Critics are focused on the pitch to “supply you with all of the resources that you need.”

The group is only the latest political or business effort launched by Hogg, who previously tried to start a “progressive pillow company” before stepping away from the enterprise.

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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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