Curious to see what occurs on appeal given the legal theory which the case was brought.
It will be interesting. As you know, jurors find the facts in the case and it’s next to impossible for appellate judges to set those aside or change them. In a criminal context, appeals are typically about errors in procedure or application of the facts. But as the appellate record is compiled, it’s inevitable that folks on the street skeptical of all of this stuff who dislike both candidates will hear what the jury found as fact and probably distrust our institutions even more.
One of the more comical parts of this case is how Cohen was still using billing software from the mid-90’s despite charging clients hundreds of thousands of dollars for routine legal work with very little heavy lifting. The program is Netscape/Alta Vista era technology. The software had drop down menus where the user could select various descriptions of the charges, but you only had like 4 choices. One of them was “Legal Expenses.” The jury found for one of the counts that Trump knew when Cohen entered that entry by selecting that from the drop down menu that Cohen had the intent to knowingly create through fraudulent means a false record to conceal another crime. As you know, you can’t prove fraud in a criminal context without direct evidence of specific intent to defraud. You can’t infer that from circumstances. You have to have direct evidence of that. Someone saying or better yet writing, I’m doing this because I know that I’m defrauding the other person for some kind of gain.
So in theory, and I’m simplifying for the audience here, in just about any other courtroom with any other defendant, you would need evidence that Trump knew when Cohen clicked on the box that said Legal Expenses, he did that to conceal the fact that they both knew it was a campaign expense and they were doing it for the purpose of evading campaign finance laws AND it’s in fact a crime to pay a woman to remain silent or deny she had sex with you. Not the reasonable doubt that neither knew campaign finance laws and they chose that drop down choice, not to conceal their felony, but because it was one of four choices and one or both thought at the time Trump was purchasing legal help to structure a legal settlement with an NDA clause.
Which they don’t have evidence of. They don’t really have evidence of Trump’s state of mind, except the testimony of a convicted felon who is facing further legal jeopardy and already received favorable treatment from prosecutors in exchange for his testimony. Trouble is, that testimony alone isn’t enough in a specific intent case. One person saying one thing and another denying it is the definition of reasonable doubt in a specific intent crime like fraud.
Which is basically why John Edwards was found not guilty on one count and a hung jury on others on very similar facts. That and he was tried in a district with a jury pool generally sympathetic to his political points of view. A trial called outrageous at the time by the same people saying folks shouldn’t be asking questions about why this case was brought today.
Just like CoVid, we had a lot of people on here call myself and lawpoke cranks for simply asking basic questions about why the government was doing what it was doing.
Like CoVid, I think as time elapses, the appeal will reveal that maybe those questions were well founded or maybe they weren’t, but either way they should have been allowed to be asked. We need to figure out why that happened and do more to stop it from happening in the future. Otherwise, it’s inevitable that someone is going to get convicted solely for what they believe. Someone you really do care about.
