The Trump New York Verdict: Constitutional, Legal, and Prudential Questions

Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call. Today, June 5th, 2024. we're delighted to host a discussion on "The Trump New York Verdict, Constitutional, Legal, and Prudential Questions." My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program as the Federalist Society takes no position on particular legal or public policy issues. Now in the interest of time, I'll keep my introduction of our guests today brief, but if you'd like to know more about either of our speakers, you can access their impressive full bios at fedsoc.org.

Today we are fortunate to have with us Sarah Isgur, who currently serves as Senior Editor at The Dispatch, where she works to explain the most important events in law and politics, bringing to bear her experience on three presidential campaigns and in all three branches of the federal government, experience which gives her a unique perspective on the news of the day and a robust knowledge of how decisions in Washington get made over. Before coming to The Dispatch, Ms. Isgur most recently served in the Department of Justice as the director of the Office for Public Affairs and Senior Counsel to the Deputy Attorney General during the Russian investigation. She's been backstage at more than half a dozen presidential debates as the Deputy Campaign Manager for Carly Fiorina's presidential campaign. She's a graduate of Harvard Law School and Northwestern University, and she clerked for Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit.

Also joining us today for our discussion is Professor William Otis, who is a former Adjunct Professor of Law at Georgetown University, one-time federal prosecutor and a former Special White House Counsel for President George H.W. Bush. After graduating from Stanford Law School, he started his career in the Criminal Division of the Justice Department, and then became Chief of Appeals for the US Attorney's Office for the Eastern District of Virginia.

He's held several posts in the federal government, including Special Assistant to the Secretary of Energy and Counselor to the Head of the Drug Enforcement Administration. In addition to his White House post, he has testified before Congress on issues ranging from criminal procedure to illegal drugs, US sentencing commission and the death penalty, and has given numerous media interviews on these and other subjects. There's certainly much more I could say, but we need to get into the discussion so I will leave it there.

A brief preview of our program and then I'll get off your screens. Ms. Isgur is going to start us off with a recap of the case and tee some of the discussion up. Professor Otis will then give his opening remarks. Ms. Isgur will take it back for a time of reaction and discussion and then we'll have a time for audience Q&A. So if you have questions throughout the program, please do go ahead and submit those via the Q&A feature and we look forward to getting to those later on. With that however, Ms. Isgur, this floor is yours.

Sarah Isgur: Thank you so much for having me. I'm excited about this discussion. I thought we'd just start with running through the charges themselves against Donald Trump. So as you're all probably pretty familiar by now, this was an alleged falsification of business records and the elements that the jury needed to find unanimously and beyond a reasonable doubt number one that the business records were in fact false, that the entry of legal services was not accurate, and I think there's been some discussion that when law firms hire an expert witness that can still be charged back to the client as legal services. The question here was whether Michael Cohen was acting as an attorney at all. There was no retainer agreement, things like that. So again, that first element was the entry of legal services actually a false business record. Second, did Donald Trump cause that false business record to be created fraudulently, as in he knew that they weren't legal services and he's the one who directed the false entry to be made.

Third, did Donald Trump direct the false entry of that business record for the purpose of concealing the commission of another crime? Now, this is of course the element that everyone I think has had the most trouble understanding. New York law is a bit weird in this respect. The issue here is that the prosecutor did not need to prove beyond a reasonable doubt that Donald Trump actually committed another crime. Rather, it was that Donald Trump wanted the business records to be false because he didn't want investigators to know what the true nature of the payments were and that was because he was doing something else "crimey", as I like to say. So think of it in the mob boss context. The mob boss goes out and buys buckets and cement tells his secretary to write that the receipt is for a business lunch. You don't need to prove that he committed murder or manslaughter, just that he didn't want it to say buckets and cement because he thought that would be really bad if investigators saw it.

It's also the case that you wouldn't need to prove in New York it seems whether he knew he was committing manslaughter or murder, just again that he knew he was committing some crime or thought he was probably committing some crime and that that's why he wanted the business records to be false. So with that, I think that our discussion will really focus on two different buckets, if you will, of problems here. The one that I think lawyers of course are most attracted to is the legal bucket. What are the main issues on appeal here? And I'll certainly let Professor Otis do a nice deep dive into that, but obviously anytime you're bringing a criminal appeal, you're going to look at those jury instructions first here. They're 55 pages long. Those are always going to give you, I think, your best odds of getting a conviction overturned.

But we also have the law itself, which is different for instance, from federal obstruction law in some important respects that I think we'll get to. But there's one other problem I think the legal appeals that people are not really grappling with, which is the institutional interest of the appellate courts at the time that this is going to come. So Donald Trump has been convicted, let's assume for a moment that he were to lose the election closely and that we have polling and data to suggest that some relatively small number of people change their vote because they did not want to vote for a convicted felon. So Donald Trump is convicted. He loses the election at least in part because he's a convicted felon and then this is up to the appellate court to determine whether there was a legal error in his conviction. I think that appellate courts are going to be hesitant in relatively close call cases to overturn the conviction in that case because if they were to overturn the conviction, it would mean that the judicial system had really put its thumb on the scale in an election.

Now you may be thinking "Yes, but that's all the more reason for them to overturn the conviction." I'm not disagreeing with that necessarily, but more talking about human nature and the sense that you don't want to bring that sort of scrutiny onto the court. You don't want to hurt the institution in that way, and so because of that you may be more likely to say that this conviction should stand. Of course, we saw the opposite in the Ted Stevens conviction. A week before that Senate election in Alaska, Ted Stevens was convicted in a federal trial. He lost the election incredibly closely. I don't have the number in front of me, but I think it was something like 200 votes, which I know in Alaska is like 50% of the population, but still it was very close, less than 1%. And fast forward only a few months later, a judge found that it was the worst case of prosecutorial misconduct that he'd ever seen with the prosecutors withholding exculpatory evidence, perhaps endorsing perjury on the stand in order to secure a conviction.

Now, I think that obviously got less attention both because it was only a Senate race. Ted Stevens died shortly thereafter. But again, imagine that sort of scrutiny coming to bear on this trial and I think it could be a real problem for the legal system in the United States. 

So this brings us to problem number two. Bucket number two, there's the legal problems on the one side. There's then the prudential problems on the other, and of course prudential problems are not an issue for appeal. They're over at this point, but I think it's worth a discussion anyway, and I wanted to read the famous Robert Jackson quote, Attorney General Robert Jackson or rather when he was Attorney General in 1940 said that "The most dangerous power of the prosecutor is that he will pick people that he thinks he should get rather than pick cases that need to be prosecuted with the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical of some act on the part of almost anyone in such a case. It is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass or selects some group of unpopular persons and then looks for an offense. That's where the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal and the real crime becomes that of being unpopular with the predominant or governing group being attached to the wrong political views or being personally obnoxious to, or in the way of the prosecutor himself."

And there's been a lot of discussion over how common this charge is, and I think both sides have been somewhat misleading. You see on the right that this charge has never been brought before and then on the left of course the New York DA brings falsification of business records all the time. Both are true to some extent. So this is a common ish charge in New York, but it's never the highest charged really, almost exclusively never except for I think someone found about two instances in the history of the Manhattan DA's office. Normally it comes with the underlying that predicate crime. And so I think that there is a fair criticism here that the DA's office started by investigating Donald Trump. Of course, the DA in his campaign touted that he would be the best person to hold Donald Trump accountable. He said that he had sued Donald Trump a hundred times in his previous job and of course the DA's office by that point had already been investigating Donald Trump looking for a different crime.

When that didn't come through, there was the criticism that they hadn't brought that fraud charge and then they found this one. I think that's exactly what Robert Jackson was describing of looking for the man instead of looking for the crime. I compare it to speeding, right? A lot of people's speed. We can't arrest everyone, pull over everyone who speeds. So you set the priority is like, well, if you're going 60 in a 35, we really want to prioritize those people who we think are driving most dangerously. What you don't do is wait until your wife's ex-boyfriend drives by and pull him over because you think your wife really needs to know what a scumbag this guy is. The important thing about that to me is that I see a lot of hypocrisy in people who are saying, for instance, that Donald Trump was politically targeted, but the Hunter Biden charge is no problem.

The Hunter Biden charges are nearly identical in important ways. They were investigating Hunter Biden for something else and then when that didn't pan out, they've brought this gun charge and these tax charges, this gun charge against Hunter Biden being a user of controlled substances in possession of a gun, again, almost never brought unless that gun was used in the commission of a crime or unless there were many guns and usually it is never the highest charged crime. So it looks very similar in terms of the unusualness of the charge and of course the political aspect to it. In speaking with federal prosecutors, they'll say, look, the sentencing guideline there is 10 to 16 months. We have a lot of gun crimes out there that we don't have the resources to charge. Think of it more like the speeding. We're really looking for those people going 60 miles an hour. This is more like going 40 miles an hour in that 35, and we just generally would pass on that prosecution to focus on the 60 mile an hour folks. So with that Professor Otis, why don't I turn it over to you?

Prof. William G. Otis: Well, thanks. Thanks very much. I really appreciated your giving us the quotation from Justice Jackson and one thing I maybe want to remind our viewers of, you remember there used to be an independent counsel statute that statute was allowed to lapse and it was allowed to lapse largely because of the thing you mentioned with Justice Jackson. It turned out that the independent counsel worked prosecutions in the way that the opposite from the way they ought to be working in order to serve the rule of law rather than political vendettas. That is the problem with the independent counsel statute was you picked out the defendant first and then went to see if you could gather the evidence to get him. I worked in the US Attorney's office for a long time. The way prosecutions are supposed to work and the way that they will work in the way most likely to guarantee their integrity is you look where the evidence leads you rather than pick out the defendant first.

One of the many things that I found out to be most important in my career in the US attorney's office was figuring out what the case is really about rather than what it purports to be about or what the press tells you it's about. And I think that's particularly important when thinking about this Manhattan prosecution and trial that just concluded last week and where we go from here in dealing with it, what do his critics was the main danger with Trump. Really it's not his trust with the porn star or the hush money payments allegedly made to her. It's not mislabeling those payments as legal. It's not that the mislabeled expenses were done to help Trump bamboozle the electorate into thinking that he was a virtuous rather than a sleazy candidate. All of that has been talked about a lot. I don't think that's what lies at the heart of this case, not incidentally that Trump's preexisting reputation for character was stellar to begin with or that the last 10,000 or so candidates for public office had not also taken license with the truth in order to persuade voters that they were better people than a fully candid accounting would tell us.

For example, there's a senator named Richard Blumenthal in Connecticut who campaigned on his service in Vietnam only there was no service in Vietnam. We all may remember Hillary Clinton who got shot at when she landed at Bosnia Airport, except she didn't. We may all remember the people of my age are certain to remember that someone did not have sex with that woman, Ms. Lewinsky and in all of those cases what was being said was not true, but no one ever thought even to charge them as criminal offenses.

As many have observed, even with all the things that have been said against Trump, would anyone else in America have been indicted much less indicted in 34 felony counts if his name were not Donald Trump? And I would go further, would even Donald Trump have been indicted even by a hard left prosecutor in the second most Democratic district in the United States, but for one thing Trump's having suborned the January 6th rioters to impede the counting of the electoral votes and thus to imperil the most hallowed tradition of American governance, the peaceful transfer of power to the winner? To millions of people, liberal and conservative alike that made Trump not merely indigestible but loathsome and dangerous someone who more than any other with the exception of Jefferson Davis, threatened American democracy itself. It was not coincidentally this fear that led many otherwise thoughtful people to the inside out argument pressed in the name of the 14th Amendment that the way to "save democracy" was to make sure that the voters had only one candidate to vote for, the other having been tossed off the ballot.

The unanimous Supreme Court fortunately was having none of it. Amazingly as it might seem now, that dispute ended only three months ago. In those three months, the quest to "save democracy" and safeguard the peaceful transfer of power, if that's what is really at stake anymore, has taken a partisan and ominous turn. This is what we need to understand. In my view, it's precisely the peaceful transfer of power that Donald Trump's prosecutions put at risk. And why is that? Because our tradition, our unique tradition in America and our most valuable tradition of the peaceful transfer of power did not drop out of the sky. The entire irreplaceable predicate of the peaceful transfer of power is the losing side's faith that the winning side won't try to put them in jail. Trump's prosecution puts a dagger in the heart of that pre like nothing we have seen in this country, even in the aftermath of the Civil War.

Jefferson Davis was never tried even for a misdemeanor and lived his life a free man. We have not asked ourselves with the sobriety the moment demands whether prosecuting Trump is too high a price to pay to hold even its assembling and unrepentant man to the punishment that the law is seen Only strictly would provide that is if the law were being administered by robots, but it isn't and we don't have that luxury. It's true that prosecuting a powerful man like Trump could at least in theory have a bracing effect on future candidates and office holders that you really can wind up in trouble and maybe even before your own judge marshan for your disregard of the law, but the more probable outcropping of Trump's prosecution will be considerably less wholesome. It's less likely to spawn an embrace of lawfulness than an appetite for revenge.

The Democrats appetite will be what by what we've already seen. Their success in putting the Republican in, if not the slammer in an ankle bracelet, the Republican's appetite once they return to power is easy to describe. You used the law to screw us and we're going to use it to screw you. Trump's prosecution will launch not an era of renewed but a cycle of recrimination. In the real world of hardball politics, a cycle of recrimination is certain to degrade rather than enhance whatever chances people of good faith have left to fortify the rule of law.

Sarah Isgur: Well, I think for the sake of discussion I'll highlight some points of disagreement even though there's plenty in there of course that I would agree with. I think that your rationale could perhaps apply too broadly for me, this case was uniquely ill suited to be brought because they were not the normal charges that are brought that they investigated Donald Trump first and foremost and then found the charges sort of like the Robert Jackson example, but I think your reasoning in an ultra partisan environment that we live in right now could apply as well to, for instance, the classified documents case where Donald Trump has been charged by the Department of Justice under President Biden for willfully retaining national security information and then of course the obstruction charges related to that in refusing to return it, et cetera. I think those charges are entirely fair. In fact, I haven't seen a particularly good defense of any of them and I think that that gets to this difficult quandary in that we don't want to weaponize our criminal justice system against disfavored candidates.

On the other hand, we don't want someone to be above the law just because they're running for office. And so to me at least I want to make that distinction between the New York case, which I think was political targeting and more to the point appears to be political targeting and that's going to undermine faith in the rule of law for a lot of Americans. I don't feel that way about the classified documents case, which I think is the strongest of the cases brought against Donald Trump. The next point that I would I think potentially raise is the Bill Clinton example. So Bill Clinton, of course perjures himself while he's president and it becomes the grounds for impeachment and charges are not brought against him and on the one hand I think that's pretty decent evidence that this idea of weaponizing the criminal justice system against your political enemies, that we are breaking new ground here and that is dangerous and bad.

On the other hand, bill Clinton made a deal, right? He gave up his law license in order to not be charged. Donald Trump has done the opposite and I think the classified documents example is a good one. They asked for the documents back several times and he refused and then of course went out of his way to obstruct their ability to retrieve the documents, lied in his assertions to them that he had already returned all the documents, that there weren't any more left that stands in stark contrast to someone like Bill Clinton and I think that's worth highlighting as well that part of the four federal cases, four criminal cases that we're dealing with here is Donald Trump bringing this on himself. Now I'd be curious what the Manhattan DA would have said to any potential plea negotiations. Maybe they wouldn't have tolerated that at all, but it seemed based on Donald Trump's lack of defense frankly in the trial that their preferences were fine to be acquitted or a hung jury having presented very little defense to this and two, that their preference was actually for him to be convicted and to be able to charge the other side with lawfare unquote and that while I don't want to equate the two, I think that using the criminal justice system to go after your political enemies is incredibly bad. Using your political enemies to go after the criminal justice system as I believe that the Trump team is also doing also undermines the rule of law for a lot of people and we're seeing the results of that around the country and I think that's worth highlighting as well.

Prof. William G. Otis: I agree with much of what you say. When I was a federal prosecutor, which is what I was for most of my career, the first question you ask is, "How good is the case or how bad is the case?" A lot is left on the editing room floor in the US attorney's office. The difference between the Florida case, which is misappropriation of classified documents, taking them with him when he left the White House and when he had no right to them and his also evading obstruction of justice by evading a lawful subpoena for those documents, that stands on a very different footing because you have solid evidence of a traditional offense and an offense whose enforcement is essential to the rule of law. We don't have anything left of the rule of law if the government cannot seek and obtain the truth and Trump's playing hide and seek with the grand jury subpoenas for the documents he illicitly took with him from the White House.

It seems to me that's a case you need to bring if you want to enforce what is at the core of a system that insists on justice demanding and getting the truth by contrast in Manhattan what we have is a Rube Goldberg contraption of an indictment and carving up the same pie in the 34 different, not misdemeanor but felony accounts, not because any prosecutor exercising what would be the typical judgment in a case like that thinks that's where it comes out, but because that was the only way they could plausibly get any criminality at all the misdemeanor accounts having lapsed because they have a statute of limitations of two years on. The second thing I want to bring up, I just want to explain and your discussion helps me do that in a way in which I perhaps failed to do initially why I brought up the 14th Amendment argument that the Supreme Court unanimously rejected.

It's because as you say, and I agree with this in many ways, Trump has brought this on himself and he brings on an attitude that may be understandable that as I was saying in my initial remarks, he's now no longer an object of indigestion but of fear. Literally fear and loathing because of his own attitude toward the law, but in a system that is properly functioning and that will provide the safeguards we have always cherished and they come to us from the constitution, you don't want loathing to drive your prosecution decisions. What you want driving them is a sober and neutral assessment of where the evidence takes the case. We did have that in my opinion, when the special counsel Jack Smith decided to bring the Florida based indictment because that is a solid case, not a Rube Goldberg contraption, but we don't have it anymore and you can see this and Trump's opponents because of all the dancing in the street on this case, you're entitled to take a normal average citizen that's entitled to take whatever attitude he wants to take, but a prosecutor who pre-select the as you were pointing out, Alvin Bragg ran on a platform that I'm going to get Donald and Trump.

There you are introducing a severe danger to how the justice system really ought to operate because today the pre-selected defendant is Donald Trump, but who is it going to be tomorrow? On the last thing you said about Trump's attitude? Yes, and there's actually a very good example of Trump's attitude having played itself into what a normal person would make of the difference in treatment. For example, in this Florida case when Joe Biden took documents from the White House and there have been pictures on the internet, not fake pictures, they were real pictures of Joe Biden's - his own batch of White House documents sitting in what looks to be a flimsy cardboard box in his garage and Merrick Garland appointed Robert Herr to look into that. Robert Herr did not find that there was no evidence upon which an indictment could be based. He found exactly what you're talking about, that Biden's attitude - so far as he could see - could see was cooperative and forthcoming, whereas Donald Trump's attitude has been belligerent and obstructive, and this is key and this is where I disagree with Herr.

The bottom line reason as I understand Herr's report that Joe Biden was not subjected to essentially the same indictment for taking illicitly, taking documents from the White House. Essentially the same behavior as Donald Trump was not so much his attitude toward the investigation, although that did count for something. It's a Joe Biden was a well-intentioned old man like grandpa who was forgetful and what are the chances that a jury is going to want to send someone like that to prison? That was his reasoning. I disagree with that reasoning. I think that when the evidence is there, it's the jury's call and not yours as a prosecutor as to whether Biden's mental state was such as either to tell you that there should not be a conviction at all because the formation of criminal intent was if not impossible, a pretty dicey question. And then if not that it becomes a question of sentencing, then the sentence can vary broadly now that the federal sentencing guidelines have become advisory rather than mandatory, but in each case, in each case as members of the public we have before us was the prosecutors thinking about the case, the traditional and neutral way of looking at the evidence and seeing is the evidence there or not for a good faith honest conviction. That's what's going on in Florida and the reason I have no problem with Jacksonville Florida's indictment, although it would be something unprecedented for a former president to be convicted, but as you were saying, he has to be answerable for his own behavior. It can't always be someone else's fault. You hear a lot of that in the US attorney's office. As a matter of fact, that's pretty much all you hear in the US attorney's office. Contrast that with Alvin Bragg's approach to the prosecution, we've just seen concluded, a preselected defendant fueled in a one party jurisdiction by an ambitious prosecutor looking not to vindicate the evidence, looking to get a preselected defendant that is an entirely different kettle of fish.

Sarah Isgur: So I hear a lot about the Al Capone comparison like, well, we had to get Al Capone on tax fraud and as that being an example of someone who ends up being charged for the lesser crime, even though we know he's murdering a bunch of people in the end he goes to prison for tax evasion and I guess my reaction is a little bit different, which is, well look, if you were investigating murders and in doing so you start investigating Al Capone and then the murder case kind of falls apart, but you stumble on tax evasion, okay, I think that's how a lot of cases ended up being brought around the country, but to the extent that they sort of were like, "Hey, Al Capone's this gangster and he's a really bad dude, let's find something because we can't pin these murders on him." and so they come up with tax evasion. Yeah, I guess I don't think that's great. And so this idea that we tout the Al Capone tax evasion prosecution as this paragon of the American prosecution power, I think we should stop. I don't think that's anything to be proud of necessarily. If you couldn't pin the murder on him, you don't get to, as Robert Jackson said, you don't get to then go digging and find some other crime because he's a loathsome figure who has pissed off the prosecutor. The other thing that I think is worth spending just a few minutes on because my goodness, the coverage of the trial spent all the time on it was what that underlying crime was. Was it a federal election crime and how can a state prosecutor bring a federal election charge? And certainly this is part of what's going to come up on appeal. The problem is that the New York law, as I mentioned actually doesn't require at all that you say what that underlying crime was, but just that Donald Trump was trying to prevent investigators from seeing the true nature of the payments.

He had to think that he was probably doing something wrong, but he didn't have to know what specifically he was doing wrong, so they didn't have to charge what specifically he was doing wrong. The jury didn't have to find what specifically he was doing wrong. I think that's a weird part of the law, but we spent a lot of time, I think, talking, not us, just Americans legal pundits spent a lot of time talking about how paying hush money is not a crime. Paying hush money for the purpose of protecting your family and not disclosing it on your FEC report is not a crime. But I got kind of caught up when I saw people, Steve Calabrese argue this in The Reason Blog that Donald Trump had a First Amendment right to pay the hush money and then citing Citizens United because if you believe that Donald Trump was paying the hush money for the sole purpose of aiding his campaign, having nothing to do with his family, then no, either he needed to disclose it on his FEC report, which he didn't do, setting aside how he paid for it, or remember it's actually The Trump Organization who paid for it in this case under Citizens United that would've needed to be an independent expenditure independent from the candidate, which of course it wasn't here.

So I feel like that's a weird argument because it actually kind of proves that it was a crime once you buy that it was for the sole reason of helping his campaign. I find the state tax charge issue to be more interesting because it gets to the question of why didn't Alvin Bragg charge a state tax violation and the falsifying business records, which would've looked more like a normal white collar prosecution from the Manhattan DA's office, so the tax argument goes something like this. Michael Cohen was not reimbursed for the hush money payments. He was given this sort of enormous plus, was it 30%, 40%, whatever it was, because they did not want Michael Cohen saying that he was reimbursed, that would've had no tax implications. They wanted him to report it as income. That's why they plused him up to basically pay the taxes and then he - it's weird because you don't really see tax cases like this - the criminal violation is that they did taxes when they actually shouldn't have. It's funny, but it's still a tax crime to pay taxes for the purpose of concealing what the income was actually for, in this case, not income. It was a reimbursement. If Alvin Bragg had charged this, I think it would be a much harder case for us to pick apart even though that tax crime would've been the opposite of what we normally think of as a tax offense.

Prof. William G. Otis: That's an excellent point, and what I would add to it is that in his own Rube Goldberg way, Alvin Bragg did charge the tax crime by adding it in the end of the case and then getting Judge Merchan to charge a jury that it could be one of this menu, this smorgasbord of objectives that the jury didn't necessarily have to believe it was that one. They could believe it was a different objective, and by the way, whatever objective the jury did ultimately conclude, that did not need to be a unanimous finding that some jurors could find. Well, it was to avoid taxes that other jurors could find. It was to bamboozle the electorate about whether Trump was a virtuous person.

I want to say one word about your opening about Al Capone. I mean there's good news and bad news as is so often the case in the law and the good news is the bad news. This is also the case in the law. Al Capone's prosecution was a testament to government power, but much of the Constitution is about limiting government power and about, and our ethos as prosecutors is when is the exercise of government power undertaken in the service of legitimate as opposed to political objectives? Which leads to my other point that you also introduced Weldon's argument, Did Trump have a First Amendment right to give hush money? One thing that is true that Judge Merchan, I think erroneously refused to charge the jury is that putting the First Amendment entirely to one side, paying hush money is not a crime that was actually central to Donald Trump's defense, and I think it was a big error for Judge Merchan to refuse to give that credence.

The last thing I'm going to say is more about the First Amendment. The big difference between this case and the Al Capone case was not that Al Capone was not a candidate for president or has been president. The big difference is that Donald Trump did have some First Amendments rights, some First Amendment right that counts here. Indeed I think this prosecution that just concluded the Manhattan put us in dangerous and unknown waters as it goes to the First Amendment. Let's look, in particular the theory the prosecution relied upon to elevate the misdemeanor lapsed because of statute of limitations lapse in misdemeanor counts into felony counts. The idea was that by mislabeling the hush money Trump aimed to commit the further crime, some further crime, and my view, the obvious one was defrauding the electorate into believing that he was a virtuous person rather than someone who if the payments had been accurately recorded, that is if they rather than being listed as legal expenses when they actually were hush money only.

There's one problem there. Years ago, and this has not been mentioned in any place that I'm aware of years ago, the Supreme Court held it lying to make yourself seem more virtuous or wholesome or trustworthy is protected by the First Amendment and hence cannot be criminalized or punished. In the name of the case you'll have heard of the underlying issue in the case name of the case is US versus Alvarez Alvarez concerned the Stolen Valor Act, the law Congress enacted to ban self aggrandizing people from falsely claiming that they had been given military honors or medals including up to the Medal of Honor. The Supreme Court struck down this law which have obviously worthwhile and important objectives holding that it violated the First Amendment because content based restrictions on speech are subject to strict scrutiny and are almost always invalid except in rare and extreme circumstance there are some categories of speech defamation or true and imminent threats that present a grave danger, but false statements alone don't present that kind of danger.

The defect in the Stolen Valor Act as the Supreme Court saw it was that Congress drafted the act too broadly attempting to limit speech that could cause relatively modest harm measured against the historically prohibitive costs that we know come from government control of speech. It seems to me that this case applies a fortiori to the Donald Trump prosecution. First political speech is the most highly protected category under the First Amendment and nothing is more clearly political than a candidate's telling voters whether truthfully or not why they should vote for them. Secondly, to allow the government, which means the party in power to be the judge of the truthfulness of the opposing candidate's speech, is to embark down a path with only an unfortunate end and a path that the courts will be very reluctant to embark upon. Third and finally, given the opposing candidates claim, if they turn out to be false, there are effective alternatives to criminalization to deal with the evils that will flow from that. For example, exposure by the press and the shame and ridicule that's going to come from such exposure. The alternative that is if we were to allow, we could either allow or disallow prosecutions simply of false statements. The alternative would be of course that thousands of our elected officials, including "Inflation was ballooning to 9% when I came into office" Joe Biden would be facing the slam for their own whoppers. That seems to me a path to which this prosecution opens the gate, but certainly a path we don't want to go down.

Sarah Isgur: See, that's interesting because I don't see the First Amendment implications because I think that it was tied to that federal campaign finance violation, which again sets up a whole other set of problems when the underlying crime is an uncharged federal crime, but the federal campaign finance violation isn't misleading the American public. It's failure to use hard dollars to pay the hush money to pay a campaign expenditure. Again, if it was a campaign expenditure and failure to record it on your federal election commission, your quarterly FEC report, neither one of which he did. The pushback to that is the John Edwards defense, which is this is a mixed motive like yeah, I knew it was going to help my campaign, but I actually paid the money to protect my family similar to dry cleaning, right? You're not allowed to use federal campaign dollars to pay for your dry cleaning as a candidate, even though you could argue that, "Well, I wouldn't have worn the suit that day if I hadn't had a campaign event." We say it's mixed use, right? You would've needed to clean your clothes anyway that day, so you can't use your hard dollars for that. So I think there's a way to avoid any of the First Amendment problems With that. We have lots of really interesting questions that I'm seeing coming in, so let's save the rest of our time and get to what you guys want to talk about.

Chayila Kleist: I'm delighted to be transitioning to the audience Q&A. We have a couple of questions already. I will do my best to group them together as much as possible, but if you do have questions, please go ahead and submit those. Our first set of questions pertain to some of the practical next steps in the case, so I would love to hear your thoughts on what the next steps seem like they'll be, what potential issues could be raised on appeal given these broader concerns, and if I can ask you to prognosticate, which one of those potential points on appeal might you find most convincing?

Sarah Isgur: So this is going to look a lot like the federal system, three tiers in the state. You have the trial that we just completed. You'll have an intermediate appellate court and then a top appellate court. From there, you could go to the US Supreme Court if you had federal due process claims. I'll start with the appellate issue that I think is least likely to win, which is this idea of political targeting that the prosecutor was biased, that the judge should have recused. I'll lump all of those in together. Those aren't going to fly. They're just not going to work. They don't work for any other defendants. I don't think they're going to work here. On the one hand, I think it's easy to say, for instance, that Judge Merchan should have recused. He donated $35 to an anti-Trump resistance group that violated New York ethics rules as I read them, but he sought an ethics opinion and was told that he did not need to recuse.

So that's going to be the number one pushback to that. But the second one is even if a judge needed to recuse, you need to show some sort of harm in the trial, and while I think there's plenty of rulings that you can say you would've gone the other way or you thought the law should have pushed the other way, nothing that rises to the level of a Caperton v Massey. Again, due process problem with the judge, political targeting, selective prosecution, those are nearly impossible to bring here. They will not fly here. I think that the best appellate line are the jury instructions because that's actually how criminal defendants usually win on appeal, but I think even there, this is a hard appellate road and I think he will lose at the intermediate level. I think he'll probably lose at the highest New York level and I just don't see a whole lot of federal issues here that the Supreme Court is going to be interested in.

Prof. William G. Otis: I'm not surprised this was the first question I entirely agree with Sarah. Questions are going to be raised complaining about the judge's bias, to me although it certainly did seem to be biased, about abuses of prosecutorial discretion. you might as well forget those. Don't even put it in the brief. Courts don't buy that kind of stuff. If there has been abuse of prosecutorial discretion in crafting this indictment or bringing an indictment at all, the answer is not to go to the courts to run the prosecutor's office. The answer is to vote in a different prosecutor. Prosecutors have their own discretion reserved to them whether to bring charges and what charges to bring are at the heart of judgments that are reserved to the executive branch, not the judicial branch, and therefore that the prosecutor as a component of the executive branch. That's pretty much sole authority over those. I also agree with Sarah that Trump is going to lose in the New York state courts, the New York State courts are likely, even the appellate courts are likely to look and sound a lot like Judge Merchan's court and they're going to be reluctant for some of the reasons Sarah said at the outset of her remarks to overturn this appeal. Okay. That's what I think would be not fruitful. 

What I think is fruitful is if and when we get to the US Supreme Court and how do you get to the US Supreme Court and the way to the US Supreme Court? What you're dealing with is a state conviction for a state offense, so the best option is to present the specifically with a clear and prepossessing federal constitutional claim and in my view, a jaundiced infringement on Trump's First Amendment rights, like the last thing I was talking about, the right reaffirmed by United States v. Alvarez, to lie because not because lying is a good thing, lying is a really bad thing, but because the price of having government restrictions on speech, even if the speech is very questionable, is we know from our history and the history of the founding of the Republic, the price of that restriction is even higher than having the public domain suffused with lying, and that's the reason that I brought up that Joe Biden is talking about "There was 9% inflation when I got to office." Well, that's called a lie. It's not a mistake that Biden makes mistakes. We all do, but he's repeated it several times at this point. It's a lie undertaken to try to bamboozle the public to buy what he's selling in his campaign. Does anybody think about prosecuting that? No. The answer to that is not in court. The answer to that is at the ballot box, and I think the best way, the best avenue for Trump is to make this federal constitutional claim that the whole basis of the state prosecution, his deceit and his lying that, well, it's not what you want to teach your kid to do, but in terms of what we know about the history of government control of speech, there's a reason that Alvarez was decided the way it was. Alvarez is the law and lying, whether for good or ill, is protected speech. That's the federal constitutional claim.

Chayila Kleist: Thank you both for your answers. Appreciate it. There's another question following up on this idea of appeal addressing the fact that the FEC dismissed the case against Trump for these payments at issue, could that affect the arguments that are made on appeal?

Sarah Isgur: That's where the state tax argument becomes pretty important because Alvin Bragg, of course, didn't have to prove what the underlying predicate crime, if you want to call it that was what he had to prove beyond a reasonable doubt was that Trump was trying to conceal the true nature of the payments from potential future investigators. It doesn't matter whether those future investigators or state tax investigators, federal FEC investigators, at least that's actually how I think the New York law is correctly interpreted. I think Judge Merchan got that right now. Does that raise some federal due process concerns? Maybe so I think the New York law is weird in that respect because what if someone thought that maybe they were committing a crime, but it turns out that thing isn't a crime? You can then arrest them for thinking they were committing a crime even though they weren't. I think that's problematic, but the fact that the FEC dismissed it, that the Department of Justice declined to prosecute it in and of itself is not a problem.

Worth noting also, of course, I mentioned the John Edwards trial. There was a hung jury in that the Department of Justice has not brought another case like that except that people will point out that they did charge Michael Cohen with paying hush money in violation of federal election rules. That's different though because Michael Cohen didn't have any defense that he was doing it to protect his family like John Edwards and like Donald Trump. Michael Cohen's only reason for doing it was of course to assist Donald Trump's campaign. That is a clear violation under BCRA. You have to use hard dollars, you have to disclose it on your FEC report. None of those things happened, so just worth mentioning the distinction there. Of course, Michael Cohen also pled, and that is not precedential when it comes to the legality, constitutionality, et cetera, or application of any law.

Prof. William G. Otis: I agree that an attack on the jury instructions is probably going to be the most profitable in the state appellate courts, if any, is. I doubt that any is, but I think if any does have a job. That's it, and the particular jury instruction upon which I and some others have focused was the instruction that the jury does not have to be unanimous in finding what the object crime was, the object crime that raises this to a felony. Now, the answer typically given to that is it's settled law that while the jury has to find the basics that is the elements of the offense, the jury does not have to be unanimous as in deciding the means by which the defense was committed, and the typical example of that is that once the jury finds that Mr. Defendant did kill the victim, it does not as long as that judgment is unanimous, it does not have to be unanimous as to whether it was done with a gun or knife or a baseball bat because that goes to only the means of commission. The complication here and the thing that I think makes the instruction, at least, and the instruction that there could be non-unanimous judgment on that part of the case is that finding what the object offense is among the three that the judge suggested to the jury, that's not the same as finding the means. That has much more to do with central and authentic culpability for the crime for which Trump was charged than just a judgment about the means is so I think there is some vulnerability to the court's instructions in that respect.

Chayila Kleist: Got it. Well, I know there's a lot more we could say, but as we're approaching the half hour and the end of our webinar, I wanted to give you a last time for final thoughts. What's your 30 seconds if you'd like to say anything?

Sarah Isgur: I think we both agree that this case shouldn't have been brought. It would've been far better for the country, for a criminal justice system, for the rule of law. If the classified documents case, for instance, were the first to proceed against Donald Trump. I think that the appellate avenues here are hard because I think, and I think we're just in such agreement here, that the best appellate arguments are actually federal due process arguments. That's going to take a long time to get to. Again, you're going to have to get through two New York courts that when they've discussed this law basically said that what happened here, not having the specification for the underlying charges, things like that were kind of okay, but there hasn't been, I think a square challenge to this law because it's so unusual to be brought as the highest charged offense. That's the problem here. It is a prudential problem more than it's a legal problem, and that means it'll have, I think far more lasting and negative effects on the judicial and legal system because it's a prudential problem.

Prof. William G. Otis: I agree with almost all of that. The most serious problem in this case is the destabilizing effect on what had been accepted and almost universally practiced norms of prosecutorial discretion in which the cases that come to court. No one thinks it's the next step before a banana republic if you bring the guy who robbed the bank to court or you bring the guy who wants to sell fentanyl to a 14-year-old, that has no political link, this case reeks of banana republic politics, that is not something the court system itself is well suited to address. As I say, that's more an electoral problem than it is a judicial problem, but it's a big problem because the faith that we've had in our criminal justice system up to now is now in much greater question than it had been before Alvin Bragg decided that maybe he would be better off running for mayor of New York or governor or whatever else he has in mind by bringing this overtly political case.

Chayila Kleist: Well, with that, we'll wrap it up. Thank you both. Really appreciate you carving out this section of your mornings and sharing your expertise with us and your insight on this timely and interesting topic. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected], and as always, keep an eye on your website and your emails announcements about other upcoming virtual events. With that, thank you all for joining today. We are adjourned.