A Deep Dive into Trump’s Trumped-Up Charges

By Michael Lucas -
Michael Lucas–It has been widely reported that Trump’s conviction of 34 felonies was—well, iffy. But why? Here’s what happened and why the case should have been tossed.

Perspective by Michael Lucas
June 11, 2024
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Introduction

We’ve all heard that the state of New York convicted Donald Trump of committing 34 felony counts of falsifying business records.

We’ve also heard that the judge presiding over the case had a conflict of interest; that the jury was not sufficiently unbiased; and that some of the Prosecution’s team had worked in President Biden’s Department of Justice and stepped down to prosecute this case.

Surely, we’ve all heard that members of the Prosecution campaigned on “locking-up” Trump, or “getting” Trump; that the Prosecution refused to call the one witness, Weisselberg, who could’ve corroborated Michael Cohen’s testimony that Trump knew his business records were being falsified; that the Court gives advantage to the Prosecution in closing arguments by allowing them to have the last word without rebuttal from the Defense.

And we have definitely heard that this prosecution was based on poor evidence and political motives.

If you haven’t heard that, know that it’s all true—especially the political motivation to discredit Trump. One is immediately reminded of Peruvian dictator, Oscar Benavides, who said:

The palpability of political bias in this case is itself grounds to have this verdict overruled on the basis of selective prosecution. But other various and sundry reasons also give Trump ample cause to appeal this verdict.

In short, this case was so shoddy that it should have been dismissed from the very get-go.

The fact that it was not proves the Prosecution and Court—people who know far more about the law than any of us—were either acting in bad faith or are so ignorant that an ex-teacher who spent thirty minutes reviewing the Constitution was able to tell that this indictment had no legal merit.

So, let’s talk about the facts of the case, the rights of the Defendant, and then discuss why it should have been tossed.

The Facts of the Case

The Prosecution indicted Trump for “falsifying business records in the first degree—34 counts.” (pg. 27)

Falsifying business record in the first degree means that this is a felony. And since there are 34 counts, Trump is charged with committing 34 felonies.

The law this charge pertains to is Penal Law § 175.10: “a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise.” (pg. 27)

So, for this charge to stick, Trump had to have falsified business records with the intent to defraud and with the intent to commit another crime.

To accomplish this, the Prosecution presented the other law Trump is alleged to have broken, New York Election Law section 17-152, which reads: “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

As Judge Napolitano has said, it is the duty of the Prosecution to prove “every element of the crime, beyond a reasonable doubt, to a moral certainty and unanimously by the jury.”

Thus, the charge of “falsifying business records in the first degree” sticks if it can be shown that Trump intended to falsify his business records; and did so with the intent to affect the outcome of an election; and intended to affect the outcome of that election by unlawful means.

Therefore, there is a third element which the Prosecution must prove “beyond a reasonable doubt, to a moral certainty and unanimously by the jury.”

What is this third element? Well, no one knew until closing arguments were given on the last day of the trial, after all the evidence had been presented and after every witness had been called.

The third element upon which the entire case rests is nowhere mentioned in the opening argument of the Prosecution (pg. 41-71) and only appears in their closing argument (pg. 136-358).

Even Trump’s defense attorney, Tony Blanche, said in his closing argument that “I believe that the Government is going to talk about three potential unlawful means that they will claim makes this conspiracy a crime” (pg. 119).

In the Prosecution’s closing, they propose three ways in which Trump could have violated section 17-152 by “unlawful means”:

  • violations of the Federal Election Campaign Act;
  • the falsification of other business records; or
  • violation of tax laws

The prosecution, however, never decided on a single one of these means for any of the 34 counts.

Instead, they tell the jury that so long as they believe that Trump intended to violate any of these, then they are obliged to vote guilty.

If you think this reeks of due process violations and undermines the intent of requiring juries to arrive at a unanimous decision, then you have very good instincts.

The Court (Judge Merchan) then corroborated this in his Jury Instructions when he said:

“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were” (pg. 31, ¶1).

The Prosecution, therefore, is absolved of the responsibility of proving that Trump intended to engage in any one of these unlawful means; and likewise, the jury is absolved of the responsibility of reaching a unanimous decision regarding the facts of the case.

In summary, the Prosecution’s indictment is this:

By listing Trump’s payment to his lawyer Michael Cohen as a “legal expense” rather than a “campaign contribution” Trump has violated NY statute 175.10 and defrauded the public. In doing so, Trump intended to violate another law, NY election law 17-152. Trump is suspected of violating this election law either by violating FECA rules, falsifying other business records, or by violating tax laws.

Now, if you can keep all that straight, here’s what Trump and every other defendant is entitled to in a criminal trial.

The Rights of the Defendant

In the discussion surrounding this case, many people have pointed to the U.S. Constitution and possible violations of the 5th and 6th amendments; i.e., the right to due process and the right to be informed of the nature and cause of the accusation.

While controversial, the following is nevertheless true: the Bill of Rights does not apply to the States and therefore does not apply to Trump because this case is being prosecuted by New York state.[1] Neither does the 14th amendment apply in this case which states that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”[2]

However, given decades and decades of de facto application of the U.S. Bill of Rights in criminal and civil cases at the state level—and decades of SCOTUS case precedent—Trump can petition for appeal on the grounds that these constitutionally-guaranteed rights were infringed upon.

What is unambiguously applicable in this case, however, is the New York constitution.

NY Constitution Art. 1 §6 states the following:

“In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him or her”; and “No person shall be deprived of life, liberty or property without due process of law.”

Therefore, the rights allegedly guaranteed to Trump by the U.S. constitution are still guaranteed by the state of New York. Thus, he is still entitled to all the rights provided for in the U.S. constitution.

As we shall discuss, the following grounds for appeal apply equally to the New York court system and the U.S. appellate court system.

It Should Have Been Tossed

Judicial Prejudice

The basis for an appeal consists of all of the things mentioned in the opening paragraph: it’s plausible the Court (Judge Merchan) had a conflict of interest according to 100.3(E)(1)(a)(i) and 100.3(E)(1)(d)(iii) of the New York Judicial Conduct codes since he is known to have donated to the Democrat party and to the Biden campaign.

His conduct during the trial has also garnered criticism from the likes of Alan Dershowitz. Specifically, the Judge’s threat to strike the testimony of the Defense’s key witness, former Trump lawyer Robert Costello, for “raising his eyebrows at one of…Juan Merchan’s rulings” can be seen as “prejudicial” toward the Defense according to New York §280.10:

“At any time during the trial, the court must declare a mistrial [when]: there occurs during the trial…conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial.”

During that exchange, the Judge took issue with Costello saying “Jeez” in response to a sustained objection by the Prosecution and “Yes. Strike it” to another one of their sustained objections (pg. 252).

COURT: “So, when there is a witness on the stand, if you don’t like my ruling, you don’t say “Jeez,” okay. And then you don’t say “strike it,” because I’m the only one that can strike testimony in the courtroom. Do you understand that?”
COSTELLO: “I understand.”
COURT: “Okay. And then, if you don’t like my ruling, you don’t give me side eye and you don’t roll your eyes. Do you understand that? Do you understand that?”
COSTELLO: “I understand that. I understand what you’re saying.”
COURT: “Okay. Thank you. Let’s get the jury back. Are you staring me down right now?”
COSTELLO: “No. I’m just wondering how—”
COURT: “Clear the courtroom, please.”

The press then objects to being kicked out of the courtroom, saying that it is an open trial and they have a right to remain. The Judge continues:

COURT: “I’m putting you on notice that your conduct is contemptuous. If you try to stare me down one more time, I will remove you from the stand. I will strike his entire testimony; do you understand me?” (this bit of drama can be found on pg. 252-257)

These transcripts could be used retroactively to call into question the impartiality of Judge Merchan. And interestingly, Costello’s comments could be used as grounds to invoke a mistrial in the other direction.

If Costello was deliberately saying “contemptuous” things to cast Trump in a bad light or to provoke a mistrial, it can be argued that his actions undermined Trump’s right to a fair trial (NY §280.10(1)).

However, since the Defense did not make a mistrial motion, their right to do so may have been waived.

The Court’s 1st Degree Conflict of Interest

Merchan’s daughter Loren Merchan’s interest in the outcome of the trial could also be grounds for appeal if Trump’s appellate team argues that Judge Merchan ought to have recused himself.

If Trump’s case is taken up on appeal in New York or by the U.S., Merchan’s failure to recuse himself could invoke a mistrial after the fact, resulting in an overturning of the conviction or the disbarment of Judge Merchan (or of Alvin Bragg, for that matter). Although disbarment is unlikely.

Motion for Mistrial and Jury Misconduct

Then, in recent news, there is a report from the New York Court that a juror revealed the verdict to a relative prior to the Jury officially delivering their verdict.

If true, this would invoke a mistrial and further tie-up Trump in court.

Improper Exclusion of Evidence

The Prosecution’s refusal to call Allen Wiesselberg—the one witness who could have corroborated Cohen’s testimony—is grounds for appeal since Weisselberg’s exclusion as a witness could be seen as an “improper exclusion of evidence”.

Weisselberg is said to have been witness to the crucial meeting whereby Trump is alleged to have directed Weisselberg on how to classify Cohen’s invoice, and where he is said to have known that he was violating the law.

These claims are the legs on which the entire indictment stands.

But, since Cohen’s testimony is uncorroborated by Weisselberg who the Prosecution refused to call because he is in prison—despite the fact that Prosecutors regularly call witnesses serving jailtime and despite the fact that only the Prosecution can offer witnesses immunity—and since Cohen is known to be a three-time perjurer who admitted that he wanted Trump convicted, his testimony, on its own, can easily be argued as unreliable and inadmissible on appeal.

Another instance of “improper exclusion” of evidence is the fact that the Court severely limited the testimony that a potential expert witness was allowed to give with respect to the alleged charge of Federal Election Campaign Act (FECA) violations.

The Prosecution claimed as a matter of fact that the accounting decision to list the payment for Stormy Daniels’s non-disclosure agreement as a “legal expense”, rather than a “campaign expense”, violated FECA rules.

Yet Bradley Smith, former FEC commissioner, was prepared to testify that the way in which Trump’s payment to Daniels was declared was not a violation of the act. The Defense ultimately decided not to call Smith as a witness since the testimony he was allowed to give was so limited by the Court.

Smith has been vocal on X regarding the alleged FECA violations and has repeatedly said that Trump did not violate FECA.

Undoubtedly, had he been allowed to testify to this, the outcome of the trial may have been different.

Improper Inclusion of Evidence

There is also the issue of “improper inclusion of evidence.” Stormy Daniels, the recipient of the so-called “hush money” was called as a witness by the Prosecution. But as she had no knowledge of the particulars surrounding Trump’s intent to defraud or Trump’s intent to violate some other law, her testimony can be seen as irrelevant.

Many have commented that the purpose of her testimony was simply to “smear” the character of Trump. Given her testimony and lack of knowledge regarding the allegations, this objection seems credible. The content of her testimony was seen as so salacious that the Defense made two motions for a mistrial—both of which were denied by the Court.

Accountability of the Accused

Then there is the issue of accountability: Jeff McConney testified that he instructed Deb Tarasoff to list the payment to Cohen as a legal expense (pg. 76). He also testified that he never spoke with Trump about any of the accounting decisions made in 2016, 2017 or 2018 (pg. 131).

Ms. Tarasoff, who handled accounts payable at the Trump Organization, then testified that she never received any instructions from Trump on how to invoice checks; that she was told to invoice checks by McConney and Weisselberg (pg. 243-244).

So how can Trump be held accountable for how Tarasoff and McConney chose to record expenses when neither of them testified that Trump instructed them on how to record them in the accounting ledger?

Problems with Defrauding the Public

There is also an issue with the fraud allegation. Trump is alleged to have defrauded the public by purchasing an NDA from Stormy Daniels. “Michael Cohen paid $130,000 to Stormy Daniels…to make sure the public did not learn of the sexual encounter with the defendant” (pg. 42).

But the Trump Organization is a private company—not a publicly traded company. Thus, any accounting records are purely internal and wouldn’t be made available to anyone but Trump Organization employees and the IRS anyway. Thus, the public would never have been entitled to this information in the first place. So how could the public have been defrauded by the withholding of information they were never legally entitled to?

Additionally, there is also no issue with the way in which the “legal expenses” were recorded because the Trump Organization is not required by the Securities and Exchange Commission (SEC) to adhere to the Generally Accepted Accounting Principles (GAAP) that publicly traded companies are required to follow.

Incidentally, the point about “improper accounting” is moot since the Trump Organization follows GAAP principles anyway.

Therefore, the falsification of business records not owed to the public, and which adhere to the GAAP principles Trump (or rather, his accountants) conceivably could have violated, simply does not apply.

Problems with the Timing of the Allegations

As for timing—which is a major crux of the case—all of the invoices and checks submitted as evidence were dated between February and December of 2017 (pg. 34-40). But Trump was charged with having “orchestrated a criminal scheme to corrupt the 2016 presidential election” (pg. 41).

How, then, is it possible that evidence—dated after Trump had already assumed office—can be used to substantiate the claim that an election already held was retroactively interfered with?

The Prosecution would have to prove that the decision to purchase the NDA from Daniels was made prior to the election with the intent to unlawfully interfere with the election process. This would have to be proven by producing evidence from 2016, including written records and corroborated eyewitness testimony—neither of which they had.

The Prosecution would then have the gargantuan task of proving that a politician’s purchasing of an NDA interferes with the election process.

Ineffective Assistance of Council

Then there is the claim of “ineffective assistance of counsel.” Since the Defense failed to object to what could be called the “plain errors” of the Court during the jury instructions—when Merchan told the Jury they did not need to be unanimous on the “unlawful means”—Trump has plausible grounds for appeal on the basis that his counsel ought to have known to object.

Speculations Regarding an Ex Post Facto Indictment

Finally, the last and most interesting basis for appeal is the possibility that this case was an ex post facto indictment. Ex post facto laws are explicitly prohibited by Article 1, section 10 of the U.S. constitution to the states (all powers denied to the States are enumerated in this section).

It reads: “No state shall…pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”

The great Alan Dershowitz—a self-described liberal democrat and civil libertarian famous for defending O.J. Simpson and President Trump during his impeachment trial—has argued (Timestamp: 1:52:13) that this case is ex post facto:

“They made up the law after the alleged acts occurred. This is all ex post facto. Nobody six years ago, sitting and contemplating how to list expenses, would ever been able to imagine that anybody could construct a legal system that would convict based on that. So it is ex post facto.”

However, the basis for this claim is unclear. The author has read claims on internet forums that NY §175.10 was repealed and reinstated after Trump’s alleged crimes, and that the state of New York retroactively created false records on their website showing the law had been on the books since 2014.

This author has found these claims to be without merit but worthy of investigation for the following reason:

Given the reputation, expertise and political disposition of Alan Dershowitz, there is reason to believe he has expert knowledge regarding this issue and lacks a political motivation to lie. That he is simply mistaken remains entirely possible.

As far as this author can tell, the basis for the claim of an ex post facto prosecution rests on the accounting decision to list the NDA reimbursement to Cohen as a “legal expense” rather than a “campaign expenditure.”

According to the GAAP principles followed by accountants in the U.S., there is no reason to list a legal invoice as anything other than a legal expense. Thus, a de facto law is created by this indictment which retroactively incriminates an action that was not illegal at the time. This would make the case an ex post facto indictment which then lends authority to the U.S. appellate courts for New York’s violation of Article 1, section 10.

Dershowitz is not alone in this regard, however. Richard Levine wrote a column for The Federalist agreeing with Dershowitz’s claim:

“The forced joining of an expired misdemeanor with a felony charge created a new law, without any legislative action. Not only did Bragg violate Trump’s Sixth Amendment rights, which necessitate the appropriate transmission of the specific charges faced, but Bragg constructed the de facto equivalent of ex post facto law.”

The substance of Levine’s claim is that the statute of limitations on the misdemeanor equivalent of falsifying business records (NY §175.05) had expired, and that by elevating it to a felony via unsubstantiated NY Election Law violations, the Prosecution was effectively able to convict Trump of 34 felonies that were really expired misdemeanors.

What then makes it ex post facto is that the Prosecution is, in effect, creating a law that removes the statute of limitations on the misdemeanor.

Conclusion

Virtually all people on “the Right” claim that this trial was a “show trial”. Many others, too—including independents and left-leaning people—agree with this sentiment.

The preceding arguments are an attempt to explain the specific reasons for this opinion to the uniformed, disinterested, confused, supportive and antagonistic onlookers who do not understand why so many people have arrived at this conclusion.

It seems to many that this is a clear case of the system working as it is supposed to.

After all, remember that many people said to “respect the verdict” of the Jury or else be labeled a hypocrite.

But to understand people’s objection to Trump’s verdict, consider the following scenarios: if a capitalist were judged by a jury of communists would you expect an unbiased verdict? What if a woman were tried by only men? Or a gazelle by lions?

Can one really declare that the former Republican president Donald Trump received an impartial trial when the Court, Prosecution and Jury are all Democrats?

Hopefully your answer is “no”. And if not, it must be understood that there are legitimate due process concerns with this case, as there are with all trials.

Unfortunately, the people of the United States seem only now to be aware of just how broken the judicial system is.

The one silver lining in all this is that due to the high-profile nature of this case, the problems with the judicial system have been put on full display for the American public.

As a result, both “left” and “right” are beginning to question the supposed reality of an impartial jury, an impartial prosecution, and an impartial judge.

Americans have much to consider in the coming months and years and must decide whether this incident should be used as pretext to further advance either the cause of “lawfare” or that of judicial reform.

Footnotes

[1] The idea that the U.S. Bill of Rights applies to the States is called the Incorporation Doctrine. The Incorporation Doctrine was concocted by John Marshall’s Supreme Court to usurp States’ policies in Barron v. Baltimore (1833). The Incorporation Doctrine was lated utilized by other Justices, including former Klansman Hugo Black, who used the doctrine to enforce the separation of Church and State in Cantwell v. Connecticut (1940) and Everson v. Board of Education of Ewing Township (1947). The history of the ratification of the Bill of Rights is very clear: the State delegates introduced them to curb the abuse of federal power. In the two prior cases, the Court decided that the States were in violation of the Establishment Clause of the 1st amendment: “Congress shall make no law respecting an establishment of religion…” Of course, this decision neglects the Preamble to the Bill of Rights, the very first word of the 1st amendment, and the historical source of the Establishment Clause. The explicit purpose of the establishment clause was to prevent Congress from establishing a national religion and from interfering in the religious policies of the States: Congress shall make no law respecting the establishment (those already established or which might be established in the future) of a religion. Delegates from Connecticut, New Hampshire and Massachusetts all insisted on the inclusion of the Establishment Clause in the 1st amendment because they all had State religions at the time the 1st amendment was ratified. Connecticut, for example, would have a State religion (the Congregationalist Church) for thirty more years after the ratification of the 1st amendment. The Preamble to the Bill of Rights is especially elucidating in this matter. It reads: “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.” And finally, the first word of the 1st amendment makes it perfectly clear who this amendment applies to: Congress.

[2] Some will object that the 14th amendment makes the preceding footnote irrelevant. The 14th amendment reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…” However, since the 14th amendment was never properly ratified, it has no legal standing. To explain, after the Civil War had ended, the 13th amendment was introduced. Delegates from the Southern states ratified the amendment which the Northern states did not object to. But when the 14th amendment was being ratified, however, delegates from the North told the Southern delegates that the votes of rebel-state governments did not count. This was done because the North knew that if they acknowledged the voting rights of the Southern delegates the amendment wouldn’t be ratified. Had the votes of Southern delegates been counted as legitimate—as they were with the ratification of the 13th amendment—the 14th amendment would not have been ratified (pg. 3-6). Furthermore, if it were true that the 5th and 6th amendments applied to the States, the phrases “No state” and “nor shall any state” in the 14th amendment, would not have been necessary. Their inclusion in the 14th amendment makes clear that amendments 5 and 6 do not apply to the States. The U.S. Constitution makes perfectly clear which parts apply to the States and enumerates the powers denied to them. Article 1 §10 of the U.S. Constitution explicitly states what the States may not do. Nowhere in that section are States prohibited from establishing state religions, denying due process, denying the right to bear arms, denying the right to free speech, or denying any other right protected against Federal abuse by the Bill of Rights. For further proof that the Bill of Rights do not apply to the States, simply observe the gun laws of New York, California and Illinois.