Update: Just as a quick point of clarification: Although Fat Alvin Bragg didn’t give the closing arguments, we still consider it his case, and, therefore, his closing arguments. But based on some feedback, we see that point isn’t clear.
Today we had closing arguments in Donald Trump’s New York City ‘hush money’ trial and as you probably know, it was not televised. Honestly, we wish the court did at least record video from it, even if it wasn’t going to release it, because it would almost certainly be an important historical artifact, but we have no say in the matter.
Thus, the best we can get are reports from third party sources, and we tend to think the best such source is Professor Turley—even if his information is limited to the state’s closing argument. It’s not just that Turley is fair-minded, it is that he is a subject matter expert. Legal reporting by non-lawyers, even with the best intentions, tends to be garbage. So, we thought we would share what he said about the arguments today, and, as necessary, translate from Legalese into English.
Before he got started with the closing argument, Turley sent out this thread:
...The fraud instruction alone is so generalized that it would seem to encompass any claim that the defendant sought to influence the election through his actions. Merchan has done little to tailor standard instructions for this novel and frankly troubling case...
— Jonathan Turley (@JonathanTurley) May 28, 2024
...The judge has allowed this jury to believe that there were federal election violations by Trump and his campaign. At the same time, he has allowed the jury to disagree on what crime was being committed and still treat the verdict as unanimous. https://t.co/KjMgW5NEZ9
— Jonathan Turley (@JonathanTurley) May 28, 2024
We discussed exactly these kinds of problems the other day, but as you will see, it will be important to remember what the judge said. Sort of. You will see what we mean in a minute.
And we might as well share what he wrote as a preview of closing arguments:
...A classic closing pitch by lawyers is to use a physical object like a three-legged stool. If any leg is missing, the stool collapses.
— Jonathan Turley (@JonathanTurley) May 27, 2024
Even a cursory review of the evidence shows this case does not have a leg to stand on.
Is that where the term came from? We always assumed it was about human legs, which we admit is pretty grim.
In any case, then Turley was off to the races:
...The prosecutors will now need to achieve a truly Sisyphean task of rehabilitating the credibility of Cohen who appears to have continued his seemingly unbroken record of perjury in this case.
— Jonathan Turley (@JonathanTurley) May 28, 2024
...Blanche is not opposing the instruction on the penalty. However, the second issue relates to the ongoing issue over the meaning and requirements of a "retainer." Blanche is saying that the law supports his references.
— Jonathan Turley (@JonathanTurley) May 28, 2024
That appears to relate to a disagreement over whether or not an attorney’s retainer agreement had to be in writing, the prosecution saying it must be in writing, and the defense saying it doesn’t. Turley previously stated that he agrees that, at least in the relevant jurisdiction, a retainer agreement doesn’t have to be in writing.
And because Turley is bad at threads (hopefully the day job as lawyer and professor works out for him, because he has no future in professionally posting on social media), he seems to have jumped to this solo post:
...Merchan is not going to give the second instruction while expressing sympathy for the objections of the prosecutors.
— Jonathan Turley (@JonathanTurley) May 28, 2024
So, he is saying the judge is not giving a proposed instruction that written retainers are necessary.
...Steinglass is hitting arguments that it hid evidence and misrepresented calls.
— Jonathan Turley (@JonathanTurley) May 28, 2024
Steinglass is almost certainly Prosecutor Joshua Steinglass.
...The prosecution is portraying Daniels as somehow a victim or virtuous in her demand for money. It ignores her demand for as much money as possible out of Trump.
— Jonathan Turley (@JonathanTurley) May 28, 2024
Of course, regular readers know that we have brought up this issue of extortion for years (and some of our commenters have said you have brought it up for longer than we have). That prior post brought up the possibility that Daniels extorted Trump and now Turley is saying she did so. Indeed, if he is right to say that she ‘demand[ed] … as much money as possible out of Trump’ then we can’t see how that isn’t extortion. But we don’t know what evidence he based that claim on.
...It is hard to see how a juror would buy the argument that Daniels is not discredited and should not be demonized. Steinglass admits that some of her testimony was "cringeworthy" but still "kind of rings true...the kind of testimony that you would expect people to remember." It…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
It is clear that despite the regrets of the judge, the prosecutors were perfectly happy with the salacious details.
Frankly, the most salacious bits are unlikely to have been relevant to the case and probably should have been excluded. The issue isn’t whether or not they slept together or any alleged details of that alleged affair. The issue is whether or not Trump’s hush money payment was a crime. Whether or not her claim that they had an affair would be true has nothing to do with that. Whether she was planning to lie and he paid her not to, or if she was planning to tell the truth and Trump paid her not to, has no effect on whether or not Trump committed a crime.
And then things start to get truly unfair:
...Overruling the objection makes a mockery of the instruction. So Steinglass can now argue that Cohen went to jail for a crime ordered by Trump.
— Jonathan Turley (@JonathanTurley) May 28, 2024
As you might know, Cohen has pled guilty to a number of charges including conspiracy to do what Trump is accused of doing in this case. So, Cohen has been, in the eyes of the law, convicted of that crime. But you can’t reason from that, that Trump must be guilty, too. Trump’s guilt or innocence stands apart from that, and according to Turley, the judge ruled that the prosecution couldn’t make that argument … and then refused to enforce his own ruling.
......Steinglass just dismissed Cohen's admitted to grand larceny and is justifying Cohen selling merchandise and making money on Trump. "You can't blame him" because he has only this connection to sell. He is portraying Cohen like he is selling goods on the street to support…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
He is portraying Cohen like he is selling goods on the street to support his struggling family in their multimillion dollar Trump condo. His ‘struggles’ amounts to earning millions in attacking Trump.
Seriously, why can’t Cohen just work in a grocery store?
...... Steinglass just said that the same catch and kill effort for Arnold Schwartzenegger was not innocent but led to an investigation into federal crimes. How is that in evidence? There was no objection from the defense...
— Jonathan Turley (@JonathanTurley) May 28, 2024
What Turley is referencing is the rule that the lawyer cannot introduce evidence in these arguments. The time to introduce evidence is the trial itself, and it all has to be done through witnesses, with very few exceptions. In the closing argument, they are limited to the evidence introduced in the trial.
And why aren'tTrump’s lawyers objecting? We aren’t there, so we can’t say, but it might be that they feel that objecting too much is hurting them in the eyes of the jury, or perhaps even risks an nasty encounter with the judge that would hurt them more. It’s one of those things where if Trump can manage to at least hang the jury they will look like geniuses, but if Trump is convicted, we will wonder if they made the right call in not objecting as much as they could. Still, let's also remember that hindsight is 20/20.
...Steinglass seems at times to be giving testimony without objection from the defense or interjection from the court. He has been explaining what is common in politics and the media and told that the jury that catch and kill efforts are unusual. There is no evidence to support…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
There is no evidence to support that claim. Again, the Clinton campaign regularly killed stories with the assistance of media allies in that same campaign.
......Steinglass is going into detail on the McDougal story, which is not the basis for any charge. He just said that this "transaction amounted to an unlawful campaign contribution." However, that is not only not true legally but it is not charged legally. Again, the court is…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
Again, the court is allowing the prosecutors to tell the jury that an uncharged exchange was a violation of election law.
As we noted the other day, Trump had a right under the Sixth Amendment to know the nature of the charges against him before the trial started (which was being violated), and this would appear to be a further violation of this right. The left loves to say no one is above the law (*cough cough* Hunter Biden), but apparently, they think Trump is below the law, including the Constitution, entitled to less protections than your average jewelry store thief.
And as we noted in that piece, the idea that speech, or a decision not to speak is a campaign contribution is directly contradicted by Supreme Court precedent.
...The judge just overruled another objection as Steinglass is making sweeping claims. Steinglass has directed the jury to the AMI agreed on election violations and said that this was "in service of Trump's campaign." He again said that this is "the antithesis of a normal press…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
He again said that this is ‘the antithesis of a normal press function.’ What again is the source in the record on the common practices of the media, particularly in light of prior killed or planted stories for Trump's opponent, Hillary Clinton.
Turley appears to be referring to the National Inquirer being used to bury stories that harmed Trump (and other celebrities). And what he is saying is that the jury has no evidence of what journalists are supposed to do, so this is another factual assertion unsupported by the evidence introduced at trial.
Also, the reference to McDougal is almost certainly Karen McDougal, another woman who claims to have had an affair with Trump, who was paid for her silence.
...Steinglass is now slamming Trump for seeking to rig a polling and plant stories. Is that now also the mysterious crime? Campaigns including the Clinton campaign regularly killed and planted stories. It is part of the fluid and dangerously ambiguous theory of prosecution…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
It is part of the fluid and dangerously ambiguous theory of prosecution allowed by the court in this case in my view.
He is saying that this is part of the failure to inform Trump of the nature of the charges against him.
......Steinglass is suggesting that a catch and kill effort is unlawful means to influence an election. That is a ridiculously broad claim as the basis for a prosecution.
— Jonathan Turley (@JonathanTurley) May 28, 2024
And while we won’t quote too many reactions, this is a good one:
Remind me which president had a “bimbo eruption” task force to deal with unfavorable stories?
— Phillip Jackson (@PEJ1952) May 28, 2024
That would be the president whose name rhymes with 'Shill Blinton.'
Back to Turley:
...We are about to restart. I am mystified how the court has allowed Steinglass to effectively give evidence outside of the record. Next break is supposed to be around 5:30 according to the judge.
— Jonathan Turley (@JonathanTurley) May 28, 2024
...Steinglass is using a video of Trump saying that all of these claims were untrue. That is an effective pivot with the addition of tweets. It is being used to show a motive for the later actions. However, it still ignores that it is not a campaign violation to kill such stories…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
However, it still ignores that it is not a campaign violation to kill such stories even if true.
...Notably, Steinglass is citing another false business record in how Cohen described Resolution Consultants. That was again Cohen's false statement. Yet, Steinglass is suggesting that somehow Trump "knew" that the only way to establish the account had to be false. That makes as…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
That makes as little practical and legal sense.
...The phone calls continue "Cohen to Pecker, Pecker to Davidson, Davidson to Cohen..." This makes the "begats" parts of Genesis 5 seem gripping in comparison.
— Jonathan Turley (@JonathanTurley) May 28, 2024
Hey, if you are into all that begetting, we won’t judge …
...Again, another statement of Cohen to the bank in arranging a transfer of money is again being cited as a false record somehow attributable to Trump.
— Jonathan Turley (@JonathanTurley) May 28, 2024
Prosecutors are now getting into the approval of the payment for Cohen. Once again, the prosecutors are citing an agreement between Weisselberg and Cohen. It was then presented to Trump and he approved it after he was president. Once again it only highlights the failure to call…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
Once again it only highlights the failure to call Weisselberg. Instead he is presented Cohen's account of what Weisselberg said.
Who is Weisselberg? Well, we found this NY Times article on him:
The Star Witness Who Never Testified at Trump’s Trial https://t.co/6b1edAbjgK
— NYT Diaspark (@nytdiaspark) May 28, 2024
And this is what the article has to say about him:
Days before his inauguration in Washington in 2017, Donald J. Trump had a debt to settle in New York: a payout to his fixer, Michael D. Cohen. They met on the 26th floor of Trump Tower, Mr. Cohen says, and struck a $420,000 deal.
Seven years later, Mr. Trump’s criminal trial in Manhattan hinges on that fleeting encounter, which is both critically important and completely in dispute. Mr. Cohen says he paid off a porn star at his boss’s behest, and in that meeting, he and Mr. Trump settled on a plan to repay him and conceal the reimbursement as legal expenses. Mr. Trump says his former fixer is a liar.
We have to break in here. The anti-Trump media always says it like that (paraphrase): ‘Trump says he is a liar.’ As if it is just Trump saying it, knowing their audience will discount that. No, Trump doesn’t just say Cohen is a liar: Cohen has been convicted of lying, which in our experience is very unusual. We have seen people get away with a lot of massive lying in court only for the prosecutions to decide they were not interested in prosecution.
Back to the article:
But prosecutors say there was a third man in the room that day: Allen H. Weisselberg, Mr. Trump’s moneyman, the keeper of the balance sheet. And he is not saying anything at all.
Prosecutors never called Mr. Weisselberg to testify, because, although he knows the truth, he has not always told it. He is serving time in the Rikers Island jail complex after pleading guilty to perjury in an unrelated civil case involving Mr. Trump, the man he served for nearly half a century.
Except, um … if the reason why they didn’t call him was his history of false statements, then why did they call Cohen? In trying to explain away Weisselberg’s absence, they just explained why there is reasonable doubt about anything Cohen testified to that wasn't supported by anyone else's testimony.
...The problem is that, under New York law, the defense was forced to go first unlike most jurisdictions. That denied the defense the change to respond to such sweeping claims. It is huge advantage to the prosecution.
— Jonathan Turley (@JonathanTurley) May 28, 2024
He is referring to the defense being first in argument. And it is unusual. We think a fairer approach is to have the prosecution go first, then defense, and then allow the prosecution to have a rebuttal, which would be limited to countering points raised by the defense.
...Steinglass just said that it is a fact that these were campaign violations. Nothing from the judge and nothing for the defense. This jury has now been told dozens of times that the payments were campaign violations and the Judge is letting that false claim stand…
— Jonathan Turley (@JonathanTurley) May 28, 2024
The cut off text reads:
… and the Judge is letting that false claim stand uncontradicted.
So the cut off word was 'uncontradicted.'
Bear in mind, while a defense attorney should object, the judge can and should also notice when a party’s lawyers are going out of bounds on his own and put a stop to it.
...By allowing the prosecutors to repeatedly state that these transactions were campaign violations, Merchan has turned this into a canned hunt. How is a juror supposed to question the charges when the jury starts with this erroneous assumption?
— Jonathan Turley (@JonathanTurley) May 28, 2024
... This is still a better option for the defense. The worst case scenario was to allow the prosecution to give an hour closing just before they are instructed by the court and sent into deliberations in the morning...
— Jonathan Turley (@JonathanTurley) May 28, 2024
Really, we get that it is important for the state to cover most topics, but you don't want to bore the jury to death. What about their rights under the Eighth Amendment?
...Steinglass insists that Trump "knew" that these payments would be falsely recorded and therefore acted in concert with Cohen and others. He insists that it is a "no brainer."
— Jonathan Turley (@JonathanTurley) May 28, 2024
And that sounds nuts.
...This is becoming a three-card monte game on where is the crime. Up until now dozens of references were made to state law violations. However, the "unlawful mean" is now being cited as Federal election law violations in making an unlawful campaign contributions.
— Jonathan Turley (@JonathanTurley) May 28, 2024
...He is again saying that McDougal was also a federal violation. Steinglass is also again stating as fact what is common practice in the media and politics on catch and kill efforts.
— Jonathan Turley (@JonathanTurley) May 28, 2024
...Steinglass just reminded them that they can find the New York election law violation with any of the three claimed crimes and that they do not have to even agree on which.
— Jonathan Turley (@JonathanTurley) May 28, 2024
...Steinglass said Trump "got his trial and the law is law and there is no special standard." He just said Trump cannot shoot someone on 5th avenue. Again objection. Again sustained...
— Jonathan Turley (@JonathanTurley) May 28, 2024
Seriously, who can’t shoot someone on Fifth Avenue these days? They’d be out of jail within five minutes.
...That is a wrap. The government has rested.
— Jonathan Turley (@JonathanTurley) May 28, 2024
And we will leave it here, except to say this. From before the trial started, we were cautiously optimistic that a hung jury was possible. But with so much misconduct in this case, we feel like that is much less likely, except …
… for the extreme wild card that there are two lawyers on the jury. Whatever their politics are, they just might be dispassionate enough and knowledgeable enough about the law (or willing to do their own research, even if that breaks the rules) to know that they are being sold a bill of goods. We’re not saying that will definitely happen. In fact, we will only say this with confidence: No one can be sure what those two lawyers will do behind closed doors.
In any case, it appears that the judge will give his jury instructions—which are flawed, including reversable errors—tomorrow and then the jury will deliberate. Many are predicting that they might come to a verdict on Thursday or Friday, although a hung jury can take longer than a guilty verdict or an acquittal, because the judge might tell the jury to keep trying even when they think they will never come to an unanimous decision. Still, you can be sure someone at Twitchy will be ready to report on it as fast as it happens.
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