COLUMNS, CRIMINAL LAWMay 27, 2024
Bragg and the Jackson Pollock School of Prosecution: Why the Trump Trial Could End With a Hung Jury
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Below is my column in the Hill on the approaching closing arguments in the Trump trial. Manhattan District Attorney Alvin Bragg appears to be launching his own school of abstract legal work in the Trump indictment. The key is to avoid any objective meaning.
Here is the column:
Abstract artistJackson Pollock once said that his paintings have no objective meaning, so the best way for people to enjoy them is to stop looking for it.
For many of us, Manhattan District Attorney Alvin Bragg has created a new school of abstract law where there is no need for objective meaning.The jury is simply supposed to enjoy it for what it is:a chance to convict Donald Trump.
Pollock was famous for his painting drips on large canvases. Bragg has achieved the same effect by regenerating a dead misdemeanor on falsifying business records as 34 felony counts. To achieve that extraordinary goal, he has alleged that the document violations (which expired long ago under the statute of limitations) were committed to hide some other crime.
Originally, Bragg vaguely referenced four crimes and there havebeen months of confusion as to what he was specifically alleging as his criminal theories. Even legal analysts on CNN and MSNBC have continued to question the specific allegations against Trump as we head into closing arguments.
As it stands, there are three crimes that have been referenced by prosecutors: state and federal election violations and taxation violations.
Bragg’s legal vision for non-objective indictments was greatly advanced by Judge Juan Merchan,who will allow the jury to reach different rulings on what crime is actually evidentin Bragg’s paint splatters.
Merchan has ruled that thejurors can disagreeon what actually occurred in terms of the second crime. This means there could be three groups of four jurors, with one believing that there was a conspiracy to conceal a state election violation, another believing there was a federal election violation (which Bragg cannot enforce), and a third believing there was a tax violation, respectively.Nonetheless, Merchan will treat that as a unanimous verdict.
In other words, they could look at the indictment and see vastly different shapes,but still send Trump to prison on their interpretations.
Moreover, Michael Cohen is the sole witness even to address the elements of any of these crimes. Cohen is a convicted serial perjurer and disbarred attorney who appears to have lied again during the trial. Even if they consider his testimony, there is no direct corroboration in evidence on Trump’s intent or knowledge. As a result, the prosecutors will rely on circumstantial evidence to support whichever interpretation the jurors will buy.
Faced with charges that can mean different things to different jurors,Trump’s team will have to focus on the spaces between the paint drips; the canvas itself.
All of this case is based on the payment for a non-disclosure agreement that isperfectly legaland indeed common in business and politics. The Trump team needs to stop dancing around the NDA.
The jury likely believes that Trump knew of the NDA and supported it. The defense has to emphasize the testimony of David Pecker, the former publisher of the National Inquirer, that he killed stories for a variety of celebrities and politicians, including Rahm Emmanuel and Arnold Schwarzenegger. He also said that he killed stories for Trump for years before he even thought of running for president….
https://jonathanturley.org/2024/05/27/alvin-bragg-and-the-jackson-pollock-school-of-prosecution-why-the-trump-trial-could-end-with-a-hung-jury/