06/14/2024

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The Trump Docket: The ‘collateral consequences’ of a Trump conviction must not supersede justice, expert prosecutor says

Former President Donald Trump returns from lunch to his trial at the Manhattan Criminal court, Monday, May 20, 2024, in New York. (Steven Hirsch/New York Post via AP, Pool)

Former President Donald Trump returns from lunch to his trial at the Manhattan Criminal court, Monday, May 20, 2024, in New York. (Steven Hirsch/New York Post via AP, Pool)

Next week, jurors in Manhattan will reconvene to hear closing arguments in Donald Trump‘s hush-money and election interference case and then, after instruction, begin deliberations to decide if the former president is guilty of falsifying business records in order to cover up a $130,000 payment to porn star Stormy Daniels ahead of the 2016 election.

Glenn Kirschner, a former federal prosecutor with over 30 years experience spoke to Law&Crime by phone on Friday and without mincing words, he considered what lies ahead for Trump, the People of New York and the integrity of the U.S. justice system at large should jurors use their “common sense” to convict Trump beyond a reasonable doubt.

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    “At its core, the question that the jurors will easily be able to answer is for whose benefit was all of this done? It wasn’t for Michael Cohen. It was for Donald Trump’s benefit. And when you assess it in a common sense way as jurors tend to do, they will see Donald Trump was guilty of these crimes,” Kirschner said.

    He also noted that while much ado was made by “chattering heads” and pundits over the credibility — or potential lack thereof — of the state’s de facto cooperating witness Michael Cohen, once defense attorney Todd Blanche elicited testimony calling the former fixer’s certainty of dates and times around calls made to arrange the alleged payoff (more on that below), Kirschner was far less impressed.

    Prosecutors are in the business of creating perspective for jurors when defense attorneys work to pull a “bait-and-switch” like the one Kirschner says Blanche attempted by making the case about Cohen’s credibility and intent and not the defendant on trial.

    “Pulling back 30,000 feet, jurors are interested in drawing common sense conclusions and inferences that they are allowed to draw on from the evidence. Is his intent corrupt? Does he have a criminal state of mind?” Kirschner said. “You get to infer from conduct and Donald Trump’s intent has always been and will always be corrupt and he proves it in every lie he tells, in every reckless, violence-inducing post he makes. The jurors get it.”

    Even if cooperating witnesses can be “damaged and dangerous and very difficult to clean up and present to a jury” it becomes a matter of “getting their stink off” of the state’s case and “putting it back where it belongs, on the defendant,” he said.

    If prosecutors “pop the hood” on the defense’s argument and jurors discover “there’s no engine inside,” it is still hard to say how long deliberations could take. If forced to speculate, Kirschner envisions two to three days.

    And if Trump is found guilty, Kirschner said he expects Trump’s base will respond violently.

    “There’s going to be violence if he’s convicted but it doesn’t matter because once we start making prosecutorial decisions based on those collateral consequences, we’re done. Then the criminal justice system no longer operates,” he said.

    The former federal prosecutor said he believes Justice Juan Merchan will incarcerate Trump if convicted, though he admitted that Merchan’s remark while holding Trump in contempt of court for the tenth time earlier this month “made my heart sink a little bit,” though he still believes Merchan presided “marvelously, even after his daughter was threatened.”

    Merchan told Trump on May 6: “Mr. Trump, it’s important to understand the last thing I want to do is put you in jail. You are the former president of the United States, and possibly the next one as well.”

    Kirschner said Friday: “I’d like to think that those of us who spent a lifetime inside the criminal justice system understand that without actual consequences, the entire endeavor of holding criminals accountable is meaningless.”

    As to whether a former president can be incarcerated logistically and practically, Kirschner says any suggestion that it isn’t possible is ludicrous.

    “It’s absurd to argue that you can’t safely confine a public figure and a former president safely,” he said, noting that in his decades of experience in the federal sector, all manner of “high value” or high profile inmates or cooperating witnesses were put into facilities where there are “nothing but protected inmates” on site.

    “We could clear one of those facilities out and give the whole thing to Donald Trump. It would be far safer for him there than it is when he’s out holding his hate rallies wherever he holds them,” he said.

    Law&Crime takes a look at further developments in the New York case and other key developments in Florida, Georgia, and Washington, D.C.

    NEW YORK 

    CRIMINAL

    The defense has rested in the historic criminal trial without testimony from Trump despite claims from his advisers that he was eager to take the stand because he was “absolutely ready to tell the truth.”

    With Memorial Day weekend approaching, jurors were dismissed and won’t return until Tuesday for closing arguments. The trial took five weeks.

    An important evidentiary hearing that unfolded this week in the former president’s hush-money and election interference case highlighted pivotal issues for defense attorneys on hotly-disputed campaign finance law allegations.

    Justice Juan Merchan grew positively furious when Robert Costello, a defense witness, took the stand and proceeded to stare the judge down — at least, that’s what Merchan thought was happening during a fraught exchange.

    After the dust-up, Costello was grilled the next day by prosecutors about emails from 2018 after feds had raided Cohen’s properties, including one message where a seemingly frustrated Costello said Cohen, then his client, was playing him and Trump. This prompted Costello to ask his law partner at the time: “What should I say to this a–hole? He’s playing with the most powerful man on the planet.”

    Earlier in the week, Trump slammed Merchan as “highly conflicted” and called for his ouster. But by Thursday, Trump was dealt a double-whammy when his petition to kick Merchan off the case was rejected as well as his request for the case to be moved out of Manhattan. The judge also refused to punish Manhattan District Attorney Alvin Bragg with discovery sanctions following allegations by Trump’s defense team of “widespread misconduct.”

    Frustrations were palpable on both sides of the courtroom as prosecutors and Trump’s defense attorneys sparred outside of jurors’ earshot over an image of Trump with his former bodyguard Keith Schiller.

    Michael Cohen admitted to yet another lie under cross-examination and to stealing $30,000 after rigging online polls for Trump.

    CIVIL

    E. Jean Carroll asked a federal appeals court to get Trump’s appeal of the verdict from their first defamation trial on the schedule as soon as possible, per CNN.

    Michael Cohen testifies on the witness stand with a National Enquirer cover story about Donald Trump displayed on a screen in Manhattan criminal court, Monday, May 13, 2024, in New York.

    Michael Cohen testifies on the witness stand with a National Enquirer cover story about Donald Trump displayed on a screen in Manhattan criminal court, Monday, May 13, 2024, in New York. (Elizabeth Williams via AP)

    FLORIDA

    CRIMINAL

    A federal judge this week denied a request from Trump’s valet and co-defendant Waltine “Walt” Nauta seeking grand jury materials, scorching him for “matters he knows nothing about.”

    Presiding U.S. District Judge Aileen Cannon expressed disappointment with special counsel Jack Smith after he vowed to appeal if she did not redact government witness names from the records in the Espionage Act case that is dragging slowly onward.

    Speaking of sensitive information: this week, the judge unsealed records from this February and March underlying a once secret clash between Trump’s lawyers and Smith over the defense team’s claims of “prosecutorial misconduct.”

    Cannon has looked favorably on Trump as he fights cases in multiple venues; she gave him permission to skip one hearing in the Mar-a-Lago case this week since he was on trial in New York.

    Left: Former President Donald Trump stands with Walt Nauta as he visits Pat’s King of Steaks in Philadelphia, Friday, June 30, 2023. (AP Photo/Matt Rourke). Right: Prosecutors say that approximately 61 boxes remained in a storage room at Donald Trump’s Mar-a-Lago (via DOJ court filing).

    GEORGIA

    CRIMINAL

    Fulton County District Attorney Fani Willis has appealed Judge Scott McAfee’s decision to dismiss multiple charges against Trump and Rudy Giuliani. (Earlier this month, Trump mounted an interlocutory appeal he hopes will end with Willis’ disqualification.)

    Rudy Giuliani, Trump’s co-defendant in the Fulton County fake electors case, went a bit off the rails this week after he was indicted in Arizona and told he had to pay $10,000 bond after he ducked a summons. Trump’s alleged lead orchestrator of the fake electors scheme also agreed to permanently stop making false and defamatory statements against former election workers Ruby Freeman and Shaye Moss — probably a prudent decision given that he is still in the throes of bankruptcy proceedings and owes the women $148 million as is. In that vein, bankruptcy lawyers are moving aggressively to subpoena the billionaire WABC owner who just fired Giuliani from his podcast.

    Left: Former Mayor of New York Rudy Giuliani speaks to reporters as he leaves his apartment building in New York, Wednesday, Aug. 23, 2023. (AP Photo/Seth Wenig) Right: Wandrea "Shaye" Moss, a former Georgia election worker, is comforted by her mother Ruby Freeman, right, as the House select committee investigating the Jan. 6 attack on the U.S. Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington, June 21, 2022. . (AP Photo/Jacquelyn Martin, File)

    Left: Former Mayor of New York Rudy Giuliani speaks to reporters as he leaves his apartment building in New York, Wednesday, Aug. 23, 2023. (AP Photo/Seth Wenig) Right: Wandrea “Shaye” Moss, a former Georgia election worker, is comforted by her mother Ruby Freeman, right, as the House select committee investigating the Jan. 6 attack on the U.S. Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington, June 21, 2022. . (AP Photo/Jacquelyn Martin, File)

    WASHINGTON, D.C. 

    SUPREME COURT

    Still nothing from the high court on the question of Trump’s immunity defense against his election interference charges.

    Meanwhile, Justice Samuel Alito has been under intense scrutiny this week as judicial advocates have called for him to be recused from any case related to Jan. 6 after it was revealed that he flew a flag upside down in front of his home in late January 2021. 

    CRIMINAL 

    All remains quiet for now in Trump’s four-count election subversion indictment.

    CIVIL

    The civil cases filed against Trump by lawmakers and police seeking to hold him accountable for his actions on Jan. 6 will move ahead with discovery prep but action on this docket is expected to be slow since key deadlines don’t creep up until September.

    OF NOTE: Former Trump White House trade adviser Peter Navarro has lost an en banc appeal to get out of prison for his contempt of Congress sentence. He will be released in July. Heading to jail, a Jan. 6 defendant accused of firing a gun at the Capitol told a judge at his arraignment he has “nothing to worry about” because Trump will be “re-elected in six months.”

    Justice Department provided exhibits show accused Jan. 6 rioter John Banuelos, left, exposing a firearm strapped to his waist and right, shooting a firearm while atop scaffolding at the U.S. Capitol in Washington, D.C.

    Justice Department provided exhibits show accused Jan. 6 rioter John Banuelos, left, exposing a firearm strapped to his waist and right, shooting a firearm while atop scaffolding at the U.S. Capitol in Washington, D.C.

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