The Perpetrator and the Prosecutor
Kamala Harris, off to a formidable start in a most unlikely presidential campaign, has cast the race as the prosecutor against the perpetrator. She utters this line repeatedly.
It’s a narrative that fits the situation and may catch on among the undecided, the swings, the young, and even those Donald Trump haters who didn’t like Joe Biden.
Representative Adam Schiff’s question to FBI Director Christopher Wray last week summarized the power of the approach: “Does the FBI hire agents with 34 felony convictions?”
So, it should not be surprising that Trump is making a last-ditch effort to vacate the New York case, which has branded him with a scarlet letter F.
Even if successful, Trump will not succeed in having his New York conviction vacated before the election. Judge Juan Merchan, who presided at the Manhattan trial, is unlikely to rule for Trump, and he has said he will decide Trump’s motion to vacate September 6. Given the slow-moving appellate process, Trump may not get a final answer this year about whether his conviction stands.
Ironic it is that Trump, the master of delay, who worked the system to stymie trials in Washington, D.C., Atlanta, and Palm Beach, is now the victim of “the law’s delay,” as he is denied an instant dismissal of his criminal conviction.
Trump has done reasonably well with prosecutors. The January 6 insurrection case (or the splinter of what’s left after the Supreme Court immunity decision) won’t come to trial soon. The Mar-a-Lago documents case has been dismissed for dubious reasons by Judge Aileen Cannon. Most lawyers disagree with the dismissal, but with this Supreme Court, who knows? The Fulton County, Georgia, “Find Me the Votes” case is on hold because the prosecutor had an affair with her chief assistant—a gift for Trump, who, as we know, would never dream of having an affair.
The Supreme Court is currently home to far more egregious ethical violations than a dalliance. Still, an appellate court in Georgia must now decide exquisite issues of prosecutorial misconduct in and out of the bedroom. This leaves the payoff/election interference case involving Stormy Daniels that Trump wants dismissed before the election to blunt Harris’s prosecutor versus perpetrator narrative.
To overturn the verdict, Trump relied on Trump v. United States, the Court’s immunity decision, even though the criminal acts involved in New York preceded 2017 when Trump took the oath of office. Trump’s line of attack is that six strands of evidence against him are inadmissible because of a strange footnote in the immunity opinion of Chief Justice Roberts where he said the following:
What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. … As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. ….
Roberts’s astounding statement would unquestionably hog-tie the prosecution in any bribery or other case involving a quid pro quo. Roberts acknowledges that the prosecutor could prove the quid but is prohibited from proving the quo—a kiss without a squeeze.
Justice Amy Coney Barrett, conservative to the core, was understandably appalled:
The Constitution does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so.… Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
During the trial, Trump failed to object to four of the six strands of evidence, which Trump now claims were objectionable. It is trite law that you can’t manufacture objections to evidence you failed to raise during a trial. Judge Merchan will be quick to reject these unpreserved objections. In other words, non-starters.
The headline strand that remains is the tearful testimony of White House aide Hope Hicks about what Trump said to her in 2018 when they were working together in the White House. The conversation related to the Stormy Daniels coverup scheme of 2016, which had been revealed in a Wall Street Journal article. There is no way that Roberts’s immunity veil over conversations within the “exclusive and preclusive” authority of the president” could apply to these conversations about private conduct.
This leaves Trump’s publicly available federal financial statement in which he purported to disclose certain aspects of his private finances. Roberts said: “The prosecutor may point to the public record to show that the President performed the official act.” This would also be the case with tweets publicly uttered while Trump was President. In other words, it is Trump’s position that the whole world can see the tweets and financial statements, except the jury.
In any event, Trump at trial failed to preserve an objection to the introduction of the tweets.
Trump argues that the Hicks testimony and the financial statement were inadmissible under Roberts’s view of the world since they reflected presidential official acts. Manhattan District Attorney Alvin Bragg argues with justification that Roberts’s statements “have no bearing on this prosecution” since the New York case focused on private, non-official acts as to which the Court said there was no immunity.
This case was about the private conduct of the man who became the President, just as the lawsuit against Bill Clinton brought by Paula Jones was about private conduct. As Roberts noted: “Although Presidential immunity is required for official actions to ensure that the President’s decision making is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct.”
In other words, in Roberts’ view, the presidency is above the law for official conduct, not the individual who is the President. Let the trial judge sort it all out.
Bragg argues with some force that the evidence against Trump was overwhelming, more than sufficient to convict even without the Hicks testimony and the tweets. The post-presidential evidence was just a pebble in the avalanche of evidence presented to the jury. Lawyers call this a “harmless error.” Harmless error in New York is where there is “no reasonable possibility that the error might have contributed to [the] defendant’s conviction.” That is certainly the case here.
The judge has set Trump’s sentencing for September 18, soon after this latest barrage of claims has been disposed of.
Trump has gamed the legal system since 1973 when Roy Cohn represented him in a race discrimination case. I closed my book Plaintiff in Chief—Portrait of Donald Trump in 3500 Lawsuits with a quotation from Cohn’s book where he said, “No public man can indefinitely survive in the center of controversy.” It applies in spades to Donald Trump.
And now, Trump must realize he’s in deep, deep trouble.
The perpetrator must now face the prosecutor in the court of public opinion. If Harris wins, and even if she doesn’t, he might one day go to jail.
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