Why a Trump conviction will be reversed.

Predicting appellate outcomes is mostly a shot in the dark, but I can't resist joining the fun.

A Manhattan jury is currently deliberating Trump’s fate on the 34 state felony charges against him. I have never practiced in the New York state courts, I’m not licensed in New York, I didn’t see the trial, and I don’t know the lawyers or the judge. I’m on the outside like everyone else. Also like everyone else, I can’t resist giving my two cents worth.

As to the trial, I think the chance of a conviction on all counts is about 5%; a conviction on most counts 75%; a hung jury 15%; and an outright acquittal 5%. When you’re in a jurisdiction where almost all the adult population already dislikes you, the prosecutor is willing to stretch the law to get you, the politically-slanted judge frequently signals (with the jury watching) that your behavior is out of bounds and you are too, and your prior conduct as shown by the evidence is sleazy at best, the news is not going to be good. But largely because the jury’s first two questions to the court tonight seemed to suggest a desire reasonably to parse the evidence and the law, I doubt there will be a conviction on all counts. We have no reason to think the jury is friendly, but some reason to think it’s cautious rather than vindictive. Convicting on all 34 counts in a case as thin as this one seems unlikely where the jury can satisfy its sense of “justice” with, say, convictions on a dozen counts or so.

If Trump is indeed convicted on some counts, what happens on appeal?

Anything I might think about that is, again, necessarily an educated guess, but that’s as good as we’re going to do at the moment.

Out the outset let me say that the conviction will not be reversed because this case ought never to have been brought. That may be true (it is true, in Paul’s opinion and mine), but that is not a legal defense and it is not available to a reviewing court. Whether to bring charges and what charges to bring are decisions vested in the executive branch, not the judicial branch. This seems all wrong to lots of people, especially now, but think about the alternative: If courts could bring charges or oversee their being brought, you’d have judges adjudicating the product of their own decisions. As the Framers understood in insisting on the separation of powers, that would be the fast road to tyranny. So we have to live with charging discretion being vested in the prosecutor. If the prosecutor stinks, the answer is not for the courts to do his job. The answer is for the voters to remove him, as recently happened to the appalling “progressive prosecutor” in Portland, and, earlier, to the even worse prosecutor, Chesa Boudin, in San Francisco.

Let me also say that the conviction will not be reversed because Michael Cohen is unbelievable as a matter of law. Perhaps regrettably, there is no such concept. The jury can believe anyone it cares to, or at least pretend to have believed him, if that’s what’s needed to get to a conviction it views as deserved.

So on what grounds do I think a conviction or convictions will be reversed?

Several.

The first will come as no surprise. Alvin Bragg technically put Trump on trial for supposed federal campaign law violations that got their start in Trump’s mislabeling hush money payments as legal expenses. But that’s a tricky case, for reasons I’ll get to, so what Bragg really put Trump on trial for is being Orange Bad Man. With that being the actual charge underneath it all, Bragg loaded the trial to the gills with extensive, lurid testimony from a high-rolling hooker about their tryst.

That’s the first reason a conviction will get reversed. It’s the law in every jurisdiction I ever heard of that any particular item of evidence must be excluded if its prejudice to the defendant outweighs its probative value. That seems clearly to have been the case here. In essence, Bragg became ensnared in his own trick. He wanted to prosecute Trump for being A Bad Person and did so. But that wasn’t (and of course could not have been) the charge written down in the indictment, nor the one the court of appeals will review. As to the actual charge — the campaign finance stuff — all the excursion into real-live-porn was vastly and (to me) obviously overkill, only tangentially related to showing the true nature of the payment but veritably bulging with prejudice.

Reversed.

The second reason the case will be coming back is that, in a confounding error, Judge Merchan refused to give an instruction that paying hush money is not itself a crime. That it isn’t is a correct statement of law in New York (indeed, there if anywhere), and it was crucial to Trump’s defense precisely because of the peep-show prosecution Bragg put on as opposed to the follow-the-paper case he should have put on. Judge Merchan’s refusal to give this instruction was, in my view, a breathtaking blunder and by itself warrants reversal.

Third, the conviction will come back because the object offense of the hush money — the supposed conspiracy to hoodwink the electorate about Trump’s virtue — was described to the jury in a way that does not require a unanimous finding of all 12 members. Instead, under the court’s instructions, some jurors are permitted to think that the proved object offense was A, while others could think it was B, or C or D. When Politifact called me today to ask about this, they reported:

Bill Otis, former head of the Appellate Division of the U.S. attorney’s office for Virginia’s Eastern District and Special Counsel to former President George H.W. Bush, said that although this split structure for jury decisions is common, he understands why Trump allies express concern about it. Otis said the parts of this case that do not require the jury’s unanimity are unusually central to the question of Trump’s guilt.

For this reason, Otis said, it could become a ripe issue for an appeals court to consider, if Trump is convicted.

This is a fair condensation of what I said, and I’m grateful to Politifact for asking someone who’s not in the tank for Bragg and Biden. But I think it’s better explained in the longer version I gave them:

I think what the Trump people are talking about is the identity of the
object crime for which the hush money payments were made, and whether the jury must unanimously decide what that object crime is.  Bragg's indictment did
not identify it in so many words, and the pro-Trump people have been pointing
out for days that its identity remained unclear.  The opposing view is that the object crime is not an element of the offense, which must be found unanimously, but only the means by which the offense was committed, which does not have to
be found unanimously.  For example, in order to convict someone of
murder, the jury must unanimously conclude he did it, but various jurors
can think different things about whether he did it with a gun, a
knife, or a baseball bat. Unanimity as to means is not required.

Now with that said, it's a bit more troubling in this case. It seems much
more central to finding guilt here that Trump have intended to do
something specific (e.g., corruptly influence the election).  That has
much more to do with authentic culpability than the mere means of the
offense does in the murder case example.  As I've often seen in this case,
the Trump people don't adequately explain their objection.  But I do
think the appellate court is going to have a tough time
deciding whether the identity of the object crime was merely a “means”
for Trump to commit the underlying crime (false labeling of business
records), or whether it was so central to the charges that the jury would have to agree unanimously on what it was.  If it's the latter, as I suspect on a more thoughtful view of the law, this thing may well be coming back.

And there’s this related problem as well: The object offense for the hush money payments was never stated in the indictment. Well-settled due process doctrine requires that the defendant be on notice specifically of what the government will seek to prove as the central components of his criminal liability. That did not happen here.

These do not exhaust the reasons to think the conviction(s) may be reversed. A reviewing court could conclude that there was reasonable doubt as a matter of law that the hush money was paid to influence the election when the more typical explanation by far is that it’s made to keep the tryst from the defendant’s wife; one of the government’s most credible witnesses, Hope Hicks, said exactly that. Or it could conclude that New York state courts are without authority to enforce federal election law. But my view is that the objections I discussed earlier are more likely to succeed at the appellate level — and that they probably will.

[UPDATE]: Lee in her comment below makes a crucial point. The very crux of the prosecution, seen in its most favorable light, is that Trump dissembled in order to improve his chances in the election by persuading voters of his virtue, or at least to keep his vices out of sight. But efforts to persuade voters in an election campaign are not only protected by the First Amendment; political speech of that sort is the very heart of the First Amendment, as the Supreme Court has repeatedly said.

What this means is that Judge Merchan, by allowing the jury or any part of it to find that the essential nexus of Trump’s guilt was First Amendment protected speech, allowed a conviction to be based on activity the Constitution shields as much as it shields anything. That is error per se and leaves a reviewing court no choice but to reverse.

Of course it may be that, in an alternative universe, the Supreme Court would hold that the First Amendment does not protect false or dishonest speech, even if made in a political campaign. In that alternative universe, of course, many if not most of our elected officials (Joe Biden, call your office) would be in the slammer, which is exactly why it remains only an alternative universe.

Lee’s analysis provides what strikes me as an unanswerable argument that the jury instruction was plain error. This conviction, if there’s going to be one, is toast.