More.
Merchan Suppresses Trump’s Non-Prosecution and His Election-Law Expert
Of course, at least equally relevant as the Cohen and Pecker/AMI agreements with the Justice Department and FEC is the fact that the feds decided not to proceed against Trump after thoroughly investigating the matter. This was not because the DOJ and FEC approved of what Trump did; it was because a prosecution would have been futile. The agencies knew that if they’d been challenged, it was unlikely that they could prove the NDA payments technically qualified as campaign expenditures. Plus, as the candidate, Trump was not subject to a spending limit, as were Cohen and AMI.
But that apparently doesn’t matter to Merchan.
The judge has barred Trump from arguing that he is innocent because he was never charged by the federal authorities that — unlike Bragg — have actual jurisdiction. Merchan reasons that Trump’s non-prosecution is irrelevant because the feds may have dropped the case for reasons having nothing to do with whether Trump was guilty. Maybe so, but then how can Merchan justify admitting Cohen’s guilty plea, as well as Pecker’s/AMI’s non-prosecution and conciliation agreements? They had huge incentives to cut those deals for reasons having nothing to do with whether they were guilty, yet Bragg is being permitted to flaunt their admissions as proof of their guilt — and thus to imply that Trump, too, must be guilty.
You may be thinking, “Don’t worry, surely Trump will be able to call an expert witness who can explain campaign-finance law to the jury, including why the payments Bragg is highlighting were not campaign expenditures.” Think again.
Trump’s team asked to call Bradley Smith, an expert who served for years on the Federal Election Commission. Smith has written in the pages of National Review about why Trump’s so-called hush-money payments did not violate federal law. But Merchan has ruled that Smith will not be permitted to explain federal campaign-finance principles to the jury.
Merchan reasons that such testimony would be improper because it would seek “to instruct the jury on matters of law.” In other words, the judge thinks it’s fine if the jury is instructed on campaign law by David Pecker and Michael Cohen but not by someone who actually understands it.
Conclusion
As you consider all of this, try to remember: Trump is not charged in the indictment with a conspiracy to steal the 2016 election by violating federal campaign law. He’s charged with falsifying business records in 2017, months after the 2016 election. As Manhattan DA, Bragg could not have indicted Trump for conspiring to violate federal law. The business-records charges in the indictment relate only to the reimbursement of Cohen for paying Stormy Daniels — they have nothing to do with payments to McDougal and Sajudin that Bragg is touting. Under long-standing legal principles, moreover, Cohen’s guilty plea to federal campaign crimes, and the Pecker/AMI non-prosecution agreements and FEC fine, are not admissible evidence against Trump.
Nevertheless, Trump is almost certain to be convicted on the charges in the indictment. Merchan is collaborating with Bragg to frame the case for the jury as a conspiracy to violate campaign laws. He has rigorously denied defense objections to that disingenuous framing. He is admitting legally inadmissible evidence, the only conceivable relevance of which is to brand the legal NDA payments as illegal campaign expenditures. And he has denied the defense the ability (a) to inform the jury that Trump was not prosecuted by the same federal agencies that cut deals with Cohen and Pecker/AMI and (b) to call a qualified expert who can explain that Bragg, who has no authority to enforce federal law, has made up a version of it that runs afoul of actual federal law.
In light of how Judge Merchan is putting his thumb on the scale for
Bragg, I don’t see how Trump has much of a chance.