Americans are split over the Trump verdict. So are New York’s criminal law professors
Here’s what happens when you try surveying criminal-law professors about an unprecedented case in their state of New York: the guilty verdict of Donald Trump.
CBC News asked them two things: their view of the case and of Trump’s chances of winning an appeal.
We contacted two dozen professors specializing in criminal law and in particular white-collar crime, given that this case was about falsifying business records.
The vast majority declined to comment, for different reasons. One divulged that he trusted few colleagues to offer an unbiased opinion, untainted by their own politics.
Responses from Americans in New York City and from outside the White House were firmly divided. Supporters of former U.S. president Donald Trump insisted it was an unfair process and that they were still committed to voting for him in the next general election. Meanwhile, Trump’s detractors cheered and hugged in celebration, satisfied that he wouldn’t be treated as an individual above the law.
But five answered. Two expressed doubts about the case, two did not, and one shared detailed analysis without stating an emphatic opinion.
The scattershot responses demonstrate that the mixed reaction to this trial goes well beyond the partisan sparring on cable TV news.
A former colleague of Manhattan District Attorney Alvin Bragg says it must have been difficult to decide whether to proceed with charges.
“I’m sure he had a lot of sleepless nights,” said David Dorfman of Pace University, a former criminal defence lawyer and Bragg colleague at New York Law School.
“Because what if Trump has gotten acquitted — or a hung jury? There’d be a lot of second-guessing.”
Would he have done it? Without stating his own view, Dorfman described it as a difficult call.
He says he’s not certain Bragg would have proceeded, had he not inherited the ongoing investigation when he entered his role in 2022, with his staff having already poured considerable effort into it.
At the same time he defends Bragg as a straight-shooter and defends the case against some criticisms.
Trump is accused of more serious crimes. However this case is likely the only trial he will face before the November vote, including for the attempted overturn the 2020 election.
What’s unique about the Trump case
Some basic facts of the case are clear-cut: A porn star said she’d had unprotected sex with Trump two decades ago, while his wife was pregnant. Then, during the 2016 presidential campaign, a Trump ally paid her $130,000 to keep quiet and, after the election, Trump repaid that ally, Michael Cohen, but declared it was for legal fees — a business expense.
Whether this constitutes a felony, however, is what’s being disputed.
There’s a fundamental fact about the crime charged here: Falsifying business records is only a felony if it’s done to hide another, underlying, crime.
As an example, let’s use a pizzeria business. The pizzeria owner can falsify records, scribbling down a made-up total for how much tomato paste he bought. If it was done out of carelessness, that’s not a felony. If it was done to cheat on taxes, it is.
The accusation was that Trump intended to hide up to three underlying crimes: violating the spending limit for a federal election, in the process breaking both a state crime against fraudulent campaigning and a state tax law.
Alex Panetta, a Washington correspondent for CBC News, was in the New York courtroom on Thursday when the jury read out the verdict convicting former U.S. president Donald Trump of 34 charges. Here’s what he saw.
Jurors were instructed that it didn’t matter which crime Trump intended to conceal, nor whether they all agreed on the underlying crime, nor whether he ever committed that underlying crime, nor whether he was charged.
All that mattered was whether they reached a unanimous verdict that he falsified records, and that he did so intending to break any of those three laws.
So was this process rare, and was it proper?
CBC News asked law-school professors at Cornell, Columbia, New York and Pace universities, as well as a pair of colleagues in other states recommended by those professors.
“The use of three crimes in this case was both rare and risky,” said John Coffee, a professor at Columbia University in New York City who specializes in business crime.
“It raises the prospect of a unanimous jury where four [jurors] think [Trump committed] Crime A, four think it is Crime B and four think it is Crime C, but not even a majority supports any specific crime.”
Asked whether Trump has a good chance at winning his appeal, Coffee says yes — for several reasons.
He cites the Enron case, when a lack of clarity about how jurors interpreted the case led the U.S. Supreme Court to narrow the charges.
He also raises the potential argument that, constitutionally, Trump is protected against being required to reveal the affair.
He also raised federal-state issues, like whether rolling the federal elections violation into the state charge will stand.
“On this basis, Trump has a shot at a successful appeal,” said Coffee, saying there’s a chance no law was broken here, and that it’s not obviously illegal to pay hush money.
Anthony Dillof at Wayne State University in Michigan predicts Trump would likely win at the U.S. Supreme Court if it agrees to hear his petition for review.
That appeal would be launched on constitutional grounds, usually after the appeals process in state courts, which could take a couple of years.
Anthony Capozzolo, former federal prosecutor and former assistant U.S. attorney for the Eastern District of New York, discusses Donald Trump’s multiple guilty verdicts and whether the former president’s criminal conviction could lead to jail time.
State prosecutors have said charges over falsifying business records are extremely common — the Manhattan DA’s bread and butter.
It’s true that this crime is commonly charged, Dillof said. What’s not common is using it to enforce a federal election law.
And he suggests politics drove the case.
“[That] is a certainly novel application of the law — one that I would describe as a ‘stretch,'” he wrote in an email.
“I do not believe such a stretch would have been made if the target were not a polarizing political figure like Donald Trump. Thus, I view prosecution as problematic.”
Dillof adds that he has colleagues he respects who disagree with his assessment.
And disagree they do.
Just because this case is novel, Dorfman says, doesn’t mean it’s inherently problematic. Unprecedented cases happen, he says.
“That doesn’t mean it’s illegal or unconstitutional,” he said. “Things happen that never happened before.'”
That said, Trump could try several avenues for appeals.
They include the federal-state issue, accusations of bias and the jurors being told they need not agree on an underlying crime, he says.
But Dorfman has no patience for the bias argument, dismissing as “absurd,” for example, the suggestion that Justice Juan Merchan disqualified himself by donating a few dollars to Joe Biden’s campaign and because his own daughter works for some Democrats.
“The judge played it very fairly, down the middle,” Dorfman said.
He also doubts Trump’s argument that jurors needed to agree on one underlying crime, but is less emphatic here: “I think that’s a closer call.”
He predicts Trump’s appeals will fail in New York state, then possibly succeed at the Supreme Court later, in well over a year, unless it takes the rare step of agreeing to hear the case immediately as an emergency.
At Cornell University, John Blume says it’s a common instruction to jurors that they need not agree on the exact underlying crime, as long as they’re unanimous that there was one.
“There is nothing unusual about the judge’s charge,” he said. “It is totally consistent with New York law.”
He says he doesn’t see an appellate reversal as likely, but without having read the full case record can’t say with certainty.
Rachel Tillie Goldberg, who practised appeals and founded the Appellate Criminal Defense Clinic at Cornell, says she never predicts the outcome of appeals.
But she praises Merchan as an experienced judge, expressing confidence he was scrupulously careful.
“His rulings seemed eminently reasonable,” she said.
“That said, no trial is without error. Often the question … is whether the error was so significant that it affected the verdict, which is a high bar to meet.”
She says there’s nothing unusual about prosecutors aggressively pursuing a case — even piling on charges to encourage a guilty plea.
That’s one reason few falsification of records cases ever make it to trial, she says.
Published at Sat, 08 Jun 2024 08:00:00 +0000
Israeli military bombards central Gaza as Palestinian death toll in hostage rescue raid rises
Israeli forces pounded central Gaza anew on Sunday — a day after the enclave’s health ministry says 274 Palestinians were killed during a hostage rescue raid — as tanks advanced further into areas of Rafah in an apparent bid to seal off part of the southern city.
Palestinians remained in shock over Saturday’s death toll, the worst over a 24-hour period of the Gaza war for months and including many women and children, Palestinian medics said.
In an update on Sunday, Gaza’s health ministry said 274 Palestinians were killed — up from 210 it reported on Saturday — and 698 were injured when Israeli special force commandos stormed Nuseirat in central Gaza to rescue four hostages held since October by Hamas militants.
Sixty-four of the dead were children and 57 were women, the Hamas-run Gaza government media office said on Sunday.
Israel’s military said a special forces officer was killed in exchanges of fire with militants emerging from cover in residential blocks, and that it knew of “under 100” Palestinians killed, though not how many of them were fighters or civilians.
Israel’s military says it rescued four hostages — Noa Argamani, 26, Almog Meir Jan, 21, Andrey Kozlov, 27, and Shlomi Ziv, 40 — who had been held by Hamas for eight months during a raid in central Gaza on Saturday. Dozens of Palestinians were reported killed amid Israel’s heavy air and ground assault, Gaza health officials said.
On Sunday, three Palestinians were killed and several hurt in an Israeli airstrike on a house in Bureij in the central Gaza Strip, while tanks shelled parts of nearby Maghazi and Nuseirat. All are built-up, historic refugee camps.
The Israeli military said in a statement its forces were continuing operations east of Bureij and the city of Deir al-Balah in the centre of the coastal enclave, killing several Palestinian gunmen and destroying militant infrastructure.
Israel sent forces into Rafah in May in what it called a mission to wipe out Hamas’s last intact combat units after eight months of war, in which Israeli forces have bombed much of the rest of Gaza to rubble while advancing against fierce resistance from militants embedded in crowded cities and built-up camps.
Israeli tank forces have since seized Gaza’s entire border strip with Egypt running through Rafah to the Mediterranean coast and invaded several districts of the city, prompting around one million displaced people who had been sheltering in Rafah to flee elsewhere.
UNRWA shelters vacated
On Sunday, tanks advanced into two new districts in an apparent effort to complete the encirclement of the entire eastern side of Rafah, touching off clashes with dug-in Hamas-led armed groups, according to residents trapped in their homes.
As of June 5, all but around 100,000 displaced people who took refuge in eastern Rafah after taking flight from Israeli offensives further north in Gaza had left, according to the UN agency for Palestinian refugees UNRWA.
“All UNRWA shelters in Rafah have been vacated. Many of the people who were based in Rafah have fled up the coast seeking safer locations in both Khan Younis and the middle area [of Gaza],” UNRWA said in a statement.
Palestinian medics said an Israeli airstrike on a house in Tel Al-Sultan in western Rafah killed two people.
The Israeli military said troops of its 162nd division were raiding some districts of Rafah where they had located “numerous additional terror tunnel shafts, mortars, and [other] weapons” belonging to Palestinian Islamist militants.
A massive pro-Palestinian demonstration packed the streets of central London on Saturday as protesters marched from Russell Square to the Houses of Parliament. They passed a smaller counter-demonstration of less than 100 pro-Israel supporters who blared dance music and waved Israeli and British flags.
Hamas precipitated the war with a cross-border attack into Israel last Oct. 7, killing around 1,200 people and seizing over 250 hostages, according to Israeli tallies. About half the hostages were freed during a brief November truce.
Israel’s ensuing air and ground war has killed at least 37,084 Palestinians, Gaza’s health ministry said in its Sunday update. The ministry says thousands more dead are feared buried under the rubble.
Attempts by the United States and regional countries to broker a deal that would release all remaining hostages in return for a ceasefire have repeatedly stumbled on Israeli and Hamas intransigence over terms for an end to the war.
Gaza’s conflict has destabilized the wider Middle East, drawing in Hamas’s main backer Iran and its Lebanese ally Hezbollah which has been clashing with Israel along its northern border for months, raising fears of all-out war.
Published at Sun, 09 Jun 2024 13:40:12 +0000
