Why Trump's Conviction Didn't Move the Needle

Hint: Because voters understand it was a political vendetta poorly disguised as law. The damage is grave and will last a long time.

Michael McConnell is a professor at Stanford Law School and a senior fellow at the Hoover Institution. He was a judge on the Tenth U.S. Court of Appeals from 2002-2009. I’m fortunate to have him as a friend. His piece in today’s WSJ is a gem of understanding, both of politics and law. His subhead captures a lot of it. To paraphrase: Most Republicans, and not a few independents, understand that the Democrats’ corrupted use of the justice system is a more serious threat to democracy than anything Donald Trump portends.

Most Democrats I know have persuaded themselves of the righteousness of criminally prosecuting Donald Trump to keep him from becoming president again. How, they ask, can any respectable person defend Trump now that he is a felon?

Many Republicans who have never been Trump supporters—who are disgusted by his personal immorality, appalled by his inflammatory and often uninformed rhetoric, and unconvinced by his claims that the 2020 election was stolen—believe that Democratic prosecutors are waging lawfare against Mr. Trump.

Did someone call me? Trump is distasteful and probably worse than distasteful, but I spent most of my professional life as a prosecutor, and I would have resigned on the spot before I would have presented a case that reeks to this extent of political manipulation. And that’s before getting to using Michael Cohen as the state’s chief witness. I mean, I get it that sometimes the government’s witnesses are less than fully appealing (you’re not going to get the Pope to testify that he was the enforcer at the defendant’s last three meth deals), but calling probably the most dishonest lawyer in America as your No. 1 guy is pushing it farther than it can go — at least if you want to come home at night and have your kids think their father does something honorable for a living.

Many Republicans who condemned his part in the Jan. 6, 2021, assault on the Capitol and thought he should have been impeached and convicted for it now consider the legal crusade against Mr. Trump to be as threatening to democracy as what happened that day. Democrats need to understand why.

Actually the entire country needs to understand why. Increasingly, I think, it does.

The charges against Mr. Trump in New York were bogus. The hush-money payments to Stormy Daniels weren’t illegal.

As Judge Merchan should have instructed the jury but refused to.

It was the labeling of those payments as legal fees that constituted the crime—but that is a misdemeanor in New York, for which the statute of limitations ran out in 2019. The falsification of business records becomes a felony, with a five-year statute of limitations, only when done with the intent to conceal the commission of another crime.

What was this other crime? The indictment didn’t say, and each juror was allowed to choose from any of three theories—which means that Mr. Trump could well have been convicted by a jury that hobbled together three different legal theories, even if a majority of jurors rejected each one.

This is a critical point. The Left’s rebuttal has been that, although the jury must be unanimous in finding that the elements of a crime have been proved, it’s standard law that it need not be unanimous as to the means by which the crime was committed. That — while true as far as it goes — is a facile and evasive answer in the circumstances of this case. The prosecution’s theory, and its only means for getting from a dead-letter misdemeanor to a live felony, required the jury to believe a fact about Trump’s intent in disguising the payments that was as critical, if not more critical, to a finding of culpability than any element of the offense. Accordingly, the same unanimity of opinion that was required in finding the elements should have been required in finding Trump’s objective in disguising the payments (if in fact he was the one who disguised them). That it was not required is, in my view, one of the most promising prospective routes for getting a reversal on appeal.

But wait. As Judge McConnell shows, it gets worse.

Toward the end of the trial, the prosecutors focused on a New York statute that forbids attempts to “influence” an election through “unlawful means.” Their theory—that all these shenanigans were designed to hide Mr. Trump’s immorality from the voters ahead of the 2016 election—might be true. There is, however, an insuperable problem with this theory. The payments to Trump lawyer Michael Cohen that were unlawfully categorized as legal fees were made after the 2016 election. The business-records crimes couldn’t possibly have been committed with the intent to influence the outcome of a contest that was already over. It follows that Mr. Trump was wrongly convicted.

That time moves in only one direction is a big problem for Joe Biden, but an even bigger problem for believing that this conviction is even slightly coherent — or that it will withstand honest appellate review.

Republicans, independents and fair-minded Democrats are therefore justified in regarding the New York case as an abuse of the system, brought with the intention of affecting the 2024 election. District Attorney Alvin Bragg’s prosecution was a far clearer and more dangerous attempt to influence voters than were mislabeled payments to Mr. Cohen. No wonder so many people tell pollsters they were unmoved by the verdict, or that they will vote for Mr. Trump because of it.

I should note here my view that a sleazy or political motive on the part of the prosecutor is not a basis for the judicial branch to reverse an otherwise sound conviction. The remedy is not for the judiciary to become the rump supervisor of what the Constitution ordains as a separate and co-equal branch of government. Instead, the remedy is for the voters to install a different prosecutor, one more mindful to the call of law rather than of politics.

Of course, the kicker is the “otherwise sound conviction” part. The genius of the analysis, supra, of the unanimity requirement is that it shows the conviction itself was defective irrespective of the prosecutor’s political taint.

The broader context makes it worse. Mr. Bragg openly campaigned on a vow to hold Mr. Trump and his family “accountable.” It is one thing for a prosecutor to promise to pursue crimes of concern to the public. But Mr. Bragg didn’t pursue particular crimes; he pursued a particular defendant, who happened to be the other party’s candidate for president.

Does any sane person who actually cares about democracy, rather than just spouting off about it, want to go down the Alvin Bragg road?

Judge Juan Merchan made a small contribution to a political group favoring Joe Biden and opposing Mr. Trump in the 2020 election. This earned the judge a rebuke from the New York State Commission on Judicial Conduct. Rules prohibit sitting judges from making campaign contributions, even small ones. Judge Merchan therefore should have recused himself from the Trump trial. A judge who is caught improperly opposing a political candidate can’t be considered unbiased in a trial of that candidate.

That’s a good point. How good it is can be understood by seeing how thoroughly it gets fuzzed over by the MSM. Although it’s not the sort of thing that, in my experience, gets a conviction reversed (the appellate judges usually go to the same country clubs as the trial judges), it’s worth remembering as voters this November consider what they want their justice system to look like. And smell like.

Hillary Clinton did the same thing that Mr. Trump did. Her campaign reimbursed a Democratic law firm more than $1 million for payments to a third party to produce opposition research—the Steele dossier—and falsely described these payments as “legal services” and “legal and compliance consulting.” The Federal Election Commission fined the Clinton campaign $8,000 for the violation, while Mrs. Clinton herself skated. Republicans wonder why a similar penalty for Mr. Trump wouldn’t have been sufficient for the much smaller payments to Mr. Cohen.

Written in bold letters atop the Supreme Court are the words, “Equal Justice Under Law.” Can any fair-minded person say that’s what went on in the Trump prosecution? Would anyone in the country have been subjected to such a patched-together, “hip-bone-connected-to-the-thigh-bone” indictment if his name weren’t Donald Trump?

These facts are seldom mentioned in news articles about the verdict against Mr. Trump. Republicans suspect that if the shoe were on the other foot, journalists would scream from the rooftops about the double standard.

I might quibble with the word, “suspect.”

Mr. Trump faces three other criminal cases. With one exception, each of these cases rests on vague and untested legal theories. The exception is the prosecution for unauthorized retention of classified documents after he left office. Those charges look to have a solid factual foundation. But here too, the odor of selective prosecution is hard to escape. Not only did Mrs. Clinton mishandle classified documents, so did Mr. Biden. In fact, he shared them with a ghostwriter after leaving the vice presidency. Special counsel Robert Hur determined that Mr. Biden’s actions were “willful” but declined to prosecute, largely because of doubts as to how a jury would perceive the president’s memory and mental capacity. Apparently, Mr. Biden is sharp enough to lead the country for the next 4½ years but not sharp enough to stand trial.

Joe Biden has enough left to be the leader of the Free World but not enough left to sit at the defense table for ten days. It’s enough to give credulity a bad name.

Judge McConnell’s conclusion is, as you might imagine, stark.

Using the criminal-justice system to handicap the opposing political party is a deep-dyed violation of democratic norms—something we expect from authoritarian regimes, not in a mature, well-functioning democracy. This isn’t to say that members of the opposing party ought to be exempt from prosecution, but any such prosecution should be for real crimes that would be brought against defendants of either party.

The Trump prosecutions present two frightful threats to our country. The first, as I’ve said before, is the threat to arguably our most hallowed tradition in governing ourselves — the peaceful transfer of power from the election’s loser to its winner. That tradition didn’t fall out of the sky. It came from something specific: the losers’ faith that the winners wouldn’t try to put them in jail. With Trump’s prosecution, that’s over with. It’s a tragic and ominous loss, and we’ll be paying for it for years.

The second and related loss is the grotesque corruption of law with politics. When I was learning what America is about, one of the first lessons was that, if you went to court, then, popular or not, the rule of law meant that you could expect a decently fair shake from the government and the judge. You could expect this because, while they might be out to prosecute you, they weren’t out to get you. That too is over with, and is likewise a loss we’ll be paying for for years.