Eisen, Kolb, McQuade In NYT: There Is Much More At Stake In Trump’s Manhattan Case Than Just Hush Money
“With Justice Juan Merchan’s proclamation last week that jury selection in the Manhattan prosecution of Donald Trump will begin on March 25, it is time for a reappraisal of the case,” Amb. Norman Eisen (ret.), Joshua Kolb, and Barbara McQuade write in an essay published today by The New York Times.
The charges brought by Manhattan District Attorney Alvin Bragg, they write, “have been overshadowed by the three other criminal prosecutions of Mr. Trump, but the 34 felony counts constitute a strong case of election interference and fraud in the place where Mr. Trump lived and conducted business for decades.”
The salaciousness of the details in Trump’s case – the charges surround hush money payments to adult entertainer Stormy Daniels in the closing days of the 2016 campaign – “obscures what it is actually about: making covert payments to avoid losing an election and then further concealing it,” the authors write.
It is entirely possible, they write, that the alleged election interference might have altered the outcome of the 2016 presidential election, which was decided by just under 80,000 votes in three states.
Eisen, Kolb, and McQuade go on to describe an earlier episode of an election-related felony and its cover-up – the Watergate scandal of the 1970s.
While Bragg has strong evidence in the case and a favorable jury pool in Manhattan, the authors discuss two major challenges he will need to overcome in order to prevail.
First, they write, will be the challenge of how Bragg and his team present Trump’s former fixer Michael Cohen, a previously admitted liar. But, the authors point out, everything Cohen has said is corroborated by documentary evidence and other witnesses. Even after a tough cross-examination in the New York civil fraud case, Justice Engoron found that “Michael Cohen told the truth.”
Second, they continue, “Bragg and his team will be confronted with the challenge of working with Justice Merchan to prevent Mr. Trump from acting out in front of the jury and thereby disrupting the case or introducing irrelevant information to try to prejudice the outcome.”
Justice Merchan, they write, “is unlikely to tolerate repeated outbursts. We got a taste of that at the hearing last week, when he repeatedly and summarily shut down frivolous objections from Mr. Trump’s counsel.”
Eisen, Kolb, and McQuade conclude: “Whether it comes to American business or constitutional democracy, individuals who flamboyantly and persistently flout the rules of a system must be deterred for that system to endure. That principle underlines the gravity of the forthcoming case in Manhattan and the cases elsewhere, against Mr. Trump.”
Eisen was special counsel to the House Judiciary Committee for the first Trump impeachment and trial. Kolb served as a law clerk on the Senate Judiciary Committee. McQuade is a professor from practice at the University of Michigan Law School and a former U.S. attorney.
Read the essay on The New York Times website or below.
The New York Times | 2/20/2024
There Is Much More at Stake in Trump’s Manhattan Case Than Just Hush Money
By Norman Eisen, Joshua Kolb and Barbara McQuade
With Justice Juan Merchan’s proclamation last week that jury selection in the Manhattan prosecution of Donald Trump will begin on March 25, it is time for a reappraisal of the case. The charges brought by Alvin Bragg, the Manhattan district attorney, have been overshadowed by the three other criminal prosecutions of Mr. Trump, but the 34 felony counts constitute a strong case of election interference and fraud in the place where Mr. Trump lived and conducted business for decades.
Mr. Bragg will face tough challenges ahead, fueled by lingering skepticism that critics have harbored about the strength of the evidence and whether Mr. Trump has been unfairly targeted.
But we think he can overcome those hurdles and, by seeking to secure a conviction, reinforce the principle that in Manhattan — as across the country — playing by the rules is critical to the integrity of both our businesses and our democracy.
To understand why this case matters, think about a precedent, an earlier episode of an election-related felony and its cover-up. That was the Watergate scandal, which hung over Richard Nixon’s re-election campaign in 1972. Voters did not have the information then to make an informed decision about Mr. Nixon, partly because the criminal investigation and trials of “the plumbers” had not concluded before the election and the majority of the evidence remained concealed. Because the investigation was unresolved, Mr. Nixon’s nefarious conduct worked; he was in the White House when the full revelations came out later, to devastating effect.
The salaciousness of the details in Mr. Trump’s case obscures what it is actually about: making covert payments to avoid losing an election and then further concealing it. Indeed, that is how Mr. Bragg has described the case, that it is “about conspiring to corrupt a presidential election and then lying in New York business records to cover it up.”
It is entirely possible that the alleged election interference might have altered the outcome of the 2016 contest, which was decided by just under 80,000 votes in three states. Coming, as it might have, on the heels of the “Access Hollywood” disgrace, the effort to keep the scandal from voters may have saved Mr. Trump’s political prospects.
The charges against Mr. Trump are also a deterrence against business fraud and a support of legitimate business in Manhattan. They target the essence of Mr. Trump’s identity and reputation, as a businessman, before his entrance into the political arena.
For decades, Mr. Trump lived and ran his businesses in New York City. We now know as a result of multiple New York court proceedings that fraud appeared to have been a regular part of his dealings. The Trump Organization and Allen Weisselberg, its chief financial officer, were both criminally convicted of fraud (before Justice Merchan) in 2022. In the New York attorney general’s civil fraud suit, Justice Arthur Engoron ruled last week that the former president is liable as a result of fraudulently manipulating his net worth and ordered him to pay a staggering $355 million penalty — over $400 million with interest.
Mr. Bragg’s prosecution is the next step in probing — and, however much possible, deterring — this pattern of conduct by Mr. Trump and his display of contempt for the rule of law that every other New York business and Manhattan executive has to follow.
To succeed, Mr. Bragg will need to overcome the first impressions of the case from its critics. In this view, it is nothing more than a years-old, stale case about hush money payments to a porn star on shaky legal ground. But since the indictment in April 2023, the legal foundations of the case have been revealed to be much stronger than the naysayers suggested. A particularly strong endorsement, for example, came from federal Judge Alvin Hellerstein, who rebuffed efforts from Mr. Trump’s lawyers to move the case to federal court.
In his opinion sending the case back to state court, Judge Hellerstein seemed to endorse Mr. Bragg’s theory of the case. He noted that the evidence against Mr. Trump appeared to support Mr. Bragg’s “allegations that the money paid to [Michael] Cohen was reimbursement for a hush money payment.”
For the trial itself, Mr. Bragg has that strong evidence and a favorable jury pool in Manhattan, but he will have to overcome two major challenges in order to prevail: one each for the jury and the judge.
First will be the challenge of how Mr. Bragg and his team present Michael Cohen, Mr. Trump’s former fixer, to the jury. Mr. Trump’s trial team will try to hammer Mr. Cohen as an admitted liar and convicted criminal who pleaded guilty to multiple federal crimes for the alleged election interference in New York. But Mr. Bragg and his own team have deep experience with putting on cooperating witnesses with complex pasts.
Mr. Cohen has not wavered in his account of the hush money payments, their election interference purpose and their cover-up. And perhaps most important, everything Mr. Cohen has said is corroborated by documentary evidence and other witnesses. Even after a tough cross-examination in the New York civil fraud case, Justice Engoron found that “Michael Cohen told the truth.” Prosecutors also have the benefit of learning from Mr. Cohen’s civil testimony and can focus on his consistency, corroboration and acceptance of responsibility.
Second, Mr. Bragg and his team will be confronted with the challenge of working with Justice Merchan to prevent Mr. Trump from acting out in front of the jury and thereby disrupting the case or introducing irrelevant information to try to prejudice the outcome. We all saw the spectacle that Mr. Trump created in the New York State civil fraud trial. But we also saw Mr. Trump reined in by federal Judge Lewis Kaplan in the E. Jean Carroll case, which, unlike the civil fraud one, featured a jury watching every move.
Justice Merchan is cut more from the cloth of Judge Kaplan. He is a widely respected and experienced jurist. Moreover, criminal trial rules and practice give him even more latitude than Judge Kaplan had in the E. Jean Carroll civil matter. With a jury in the box, Justice Merchan is unlikely to tolerate repeated outbursts. We got a taste of that at the hearing last week, when he repeatedly and summarily shut down frivolous objections from Mr. Trump’s counsel.
The seriousness of the prosecution can also be conveyed at sentencing. If Mr. Trump is convicted, Mr. Bragg should seek jail time. Each count of document falsification carries a term of up to four years in prison. Many individuals, including first-time offenders, are sentenced to imprisonment for this crime in New York.
Whether it comes to American business or constitutional democracy, individuals who flamboyantly and persistently flout the rules of a system must be deterred for that system to endure. That principle underlines the gravity of the forthcoming case in Manhattan and the cases elsewhere, against Mr. Trump.
Eisen, a senior fellow at the Brookings Institution, was special counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump. Kolb is an attorney who served as a law clerk on the Senate Judiciary Committee. McQuade is a professor from practice at the University of Michigan Law School, a former U.S. attorney and the author of the forthcoming book “Attack From Within: How Disinformation Is Sabotaging America.”
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