That’s theoretically still possible, but it is increasingly unlikely by the day. In Florida, Aileen M. Cannon, the Trump-appointed judge overseeing the Mar-a-Lago classified documents and obstruction of justice case, has been doing her best to slow-walk the proceedings. In the District, Obama appointee Tanya S. Chutkan has sought to get the case to trial, only to be slowed down by a Supreme Court that appears heedless of the electoral calendar. (The sprawling Georgia RICO case against Trump has its own problems, but even aside from those, it was never likely to come to trial before November.)
So we are left with the New York conviction — and the stark fact that, absent a reversal on appeal, Trump is a felon. Resoundingly. On every count. This was no split verdict. It was a devastating conclusion, reached swiftly but after evidently serious consideration of the evidence.
It follows on the civil jury that found Trump liable in 2023 for sexually abusing E. Jean Carroll and the separate jury that earlier this year ordered him to pay more than $83 million for defaming her. In addition to the New York state judge who ordered Trump to pay more than $355 million for defrauding lenders and insurers about his wealth. This is the man voters may return to the presidency?
And this case, unlike the others that have come to trial, doesn’t involve Trump’s character or his business ethics. It centers instead, as prosecutors argued and the jury found, on his desperate bid to keep information about his relationship with porn star Stormy Daniels from reaching the public before the 2016 election.
I write this as someone who has been skeptical of the hush money case from the start. But that’s not because Trump’s efforts to cover up his alleged sexual misconduct weren’t deeply troubling — they were. The $130,000 payment that Michael Cohen facilitated and Trump approved meant that voters were deprived of information that Trump understood could be politically devastating to him.
My concern has been New York prosecutors’ effort to shoehorn those ugly facts into the confines of the state’s falsifying business records law. On that score, it’s important to keep in mind that the conviction could be reversed on appeal — witness the top New York court’s recent overturning of the criminal conviction of movie producer Harvey Weinstein.
Among the potential issues: Falsifying business records is a misdemeanor under New York law. That charge can be bumped up to a felony if the falsification was done with the intent to commit another crime. In the end, according to the judge’s instructions to the jury, prosecutors settled on another New York misdemeanor, a state election law that makes it illegal to “conspire to promote or prevent the election of any person to a public office by unlawful means.” In turn, the unlawful means they cite include violating federal election law and filing false tax records. Does New York law stretch to cover federal crimes and permit this bootstrapping into felony conduct? Was there adequate proof Trump intended to violate election or tax law, assuming those can be applied here? On a separate topic, did the judge err in allowing Daniels to testify in damning detail about her alleged sexual encounter with Trump?
Overturning a conviction is always an uphill battle, of course, and any appellate ruling will come after the presidential election. For now, notwithstanding Trump’s railing against a criminal justice system that he claims was rigged against him, the jury’s verdict is entitled to substantial, indeed almost conclusive, respect.
It heard the evidence against Trump. It alone determines the credibility of witnesses such as Trump fixer, and adjudged perjurer, Cohen. It alone decides whether the facts support the finding of guilt beyond a reasonable doubt.
In particular, it alone gets to decide what I thought was the weakest aspect of the prosecution’s case: whether Trump knew that the business records detailing the hush money payments as “legal expenses” or a “retainer” were falsified with the intent to commit another crime. It’s not the job of the appeals court to reweigh the evidence.
And there is no reason to second-guess those factual findings. Justice Juan Merchan presided over the trial with admirable evenhandedness and restraint. This was a jury selected with the input and acquiescence of the defense as well as the prosecution.
The political inclinations of Manhattan residents notwithstanding, there is no reason to believe it could not decide the case fairly. Two of the jurors are lawyers. One of them reported getting his news solely from Trump’s own Truth Social and Elon Musk’s X. In questioning before their selection, they did not come off as particularly immersed in politics, obsessed with the news, or consumed with strong feelings for or against Trump.
Was Trump’s conviction inevitable? I don’t think so — indeed, most of the lawyers with whom I spoke as the trial drew to a close said they were braced for a hung jury. In his closing argument, Trump attorney Todd Blanche took to spaghetti-throwing, in the hope that something, anything, might stick with at least one juror. Perhaps that was his best hope, but the unyielding, reality-defying nature of his arguments may have done more to offend the jurors than persuade them.
The defense might have been better off, if their difficult client had allowed, admitting everything: the relationship, the payoff, the reimbursement scheme — everything except for Trump’s knowledge that the business records were to be falsified.
Then it could have hammered home the lack of direct evidence that Trump was aware of the false entries or had them done with the intent to defraud by committing another crime. On this point, the absence of testimony from Allen Weisselberg, the Trump Organization’s former chief financial officer, is telling. On the other hand, Trump personally signed nine checks to Cohen that falsely identified the payments as a retainer.
We’ll never know. The jury has spoken. There is ample evidence to support its verdict. Trump can complain. In reality, given the delays in the other cases, he should be giving thanks that he is not running as a thrice-convicted felon.
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