The trial of the century has finished, and we are still no wiser as to what the crime was. More importantly, neither is Donald Trump.
Was it paying hush money? No, this is not a crime. Indeed Non-Disclosure Agreements – NDAs – are legally binding agreements, and are not illegal in any way at all.
Keeping the payments secret? No, that is the whole purpose of an NDA. And politicians hide their dirty washing all the time.
Recording the payments in his company’s accounts as “legal expenses”? No, even if they were wrongly classified (which they weren’t), such a bookkeeping error in the U.S. would be only a misdemeanour, not a felony, for which the Statute of Limitations expired years ago.
Not declaring it as a campaign expense during the 2016 election? No, that would be a federal offence, which a New York court would have no jurisdiction over.
According to the charge sheet, the offence was Falsifying Business Records. This sounds serious, maybe forging invoices and the like. In fact, it was nothing of the sort, and the charge was merely allegedly wrongly recording payments to lawyers as “legal expenses” in Trump’s business accounts.
The prosecution made absolutely no attempt to prove that it was wrong to do so. They never called an expert witness to the stand, such as an accountant or financial regulator, to provide specialist advice on the topic. Instead, the jury was deliberately deceived into believing it must automatically be illegal.
Businesses, of course, are always paying out for NDAs. They are regarded as legitimate business expenses, and whether they are classified as legal expenses, administration or other items is immaterial.
As already noted, even if these payments were wrongly categorised in the bookkeeping, it was still only a misdemeanour. In order to upgrade the alleged offence to a felony, for which the Statute of Limitations has not expired, the DA Alvin Bragg attempted to bootstrap it to another crime. Legal scholars have called this a ‘novel legal theory’ – in other words, it has never been tested in court before.
The NY statute states that a misdemeanour, such as falsifying business records, becomes a felony if it is done with an intent to commit or conceal another crime. It is easy to see why this novel theory has never been used. If a defendant has already been punished for another crime, this would mean him being punished twice for the same crime.
So, what was this other crime? At no stage during the trial was any evidence put forward to establish this, nor were Trump or his attorneys informed as to what it might be. It is a fundamental right under the U.S. Constitution that a defendant be told exactly what crimes he is being accused of and given full sight of the evidence to be used against him. This did not happen.
In fact, we had to wait until the judge’s instructions to the jury at the end of the trial to learn that he had two possible crimes in mind:
- Tax Evasion
- Violation of the Federal Election Campaign Act
Mysteriously, the judge did not even know himself which it might be. Instead, he told the jurors they must find Trump guilty, even if they only believed he had committed another crime, regardless of the absence of evidence.
As already pointed out, NDAs are legally accepted as legitimate business expenses, and are recorded as such by businesses all the time. There is therefore no possibility of tax evasion.
Indeed, the Internal Revenue Service – the IRS – has never challenged the tax treatment of Trump’s hush money payments, never mind actually taken legal action over them.
Moreover, at no point during the trial did the prosecution attempt to dispute this, nor call expert witnesses on the topic. As the defence were not notified of this accusation, they were also unable to challenge it.
As for the FECA, the Federal Election Commission had already investigated the hush money payments and had ruled that they did not violate the Act. Indeed, Trump’s lawyers wanted to put an expert witness on the stand, Brad Smith, a former chairman of the FEC, who had also already made clear that no violation occurred.
This of course would have blown the prosecution’s case out of the water. The judge, Juan Merchan, refused to allow Smith to give evidence on this crucial issue. Nor did he allow the defence to call tax experts. I think that tells us all we need to know about his complicity with the prosecution. It is clear that he was working closely with the prosecution team from the start to get the verdict they all wanted.
Again, the prosecution made no attempt during the trial to prove that any crime had been committed with regard to Federal Election law.
As if to highlight the whole absurdity of the case, the hush money was paid in 2017, the year after the election. Quite how a payment made in 2017 could influence an election the year before is a mystery!
Most legal experts believe that the guilty judgement will certainly be overturned on appeal because there were so many reversible errors during the trial. But that appeal will probably not be heard before the election. Until then Donald Trump will be labelled a felon before the American public, which of course was always the object of the exercise.
It was evident from the start that this was a political show trial. Alvin Bragg had even won election as DA with a promise to “get Trump”. The judge was not selected at random, as is usually the case. Instead, he was hand-picked because of his known anti-Trump views. His donations both to Biden and the Stop Republicans campaign should have led to his immediate recusal.
His bias was evident for all to see when he refused to allow testimony from a defence witness, Bob Costello, a senior lawyer who had already testified under oath to Congress providing evidence that Michael Cohen had lied during his testimony earlier in the trial. Cohen, a convicted perjurer, was the prosecution’s key witness.
He also failed to intervene during the prosecution’s summing up, when the lawyer wrongly claimed that hush money payments were a breach of Federal Election law.
And despite their denials, it is clear that the White House was directing this operation. The number three at the Department of Justice, Matthew Colangelo, conveniently took leave of absence and by coincidence popped up as lead prosecutor in New York!
The charges could have been brought in 2017 or any time after. Instead, they were delayed until Trump had announced he was running for office again.
All of these controversies are the subject of serious debate in the U.S., particularly amongst legal scholars. But astonishingly, here in Britain the media almost to a man has ignored them all and instead lazily assumed that Trump must have committed a crime.
Naturally Republicans are up in arms at what they see as lawfare and election interference. But, significantly, RFK Jr., son of Bobby Kennedy, who is also running for President as an independent candidate, has slammed the guilty verdict as “profoundly undemocratic”.
Meanwhile Donald Trump faces jail time for a bookkeeping error.
Further Reading:
- Telegraph – William Jacobson, Professor Of Law at Cornell University.
- Politico
- MSN
- MSN
- CNN
- Alina Habba
Paul Homewood has a long career as an accountant in industry, and has also written extensively about climate and energy policy matters.
Stop Press: Michael Shellenberger has delivered his verdict on Trump’s conviction, every bit as withering as Paul Homewood’s.
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