Guilty.
HAPPY FRIDAY. GUESS WHAT WE’RE TALKING ABOUT???
OK. Deep breaths. Obviously, we are going to be talking about Donald Trump’s conviction in New York. I’ll try to go over everything - what he will argue on appeal, if it will help him in November, his defense strategy, etc., - and I’ll also have a quick word on Justice Alito’s flag enthusiasm. Similarly, Should-Reads is a can’t miss. And I also have a cocktail recipe, because WE BE CELEBRATING.
A quick victory lap.
If you have been reading the Jackal for the past year(ish) since these charges were dropped, you’ll remember that I took them seriously when other people called them weak or flimsy. It always seemed to me like an open and shut case with lots of evidence on the prosecution’s side. On May 11th (20 days ago), I said the trial was over and Trump’s attorneys had given up. And I repeatedly said that a guilty verdict was coming. I remain a little shocked by the media’s coverage of this case, which they continuously framed as the “weakest” of the indictments brought against Trump. It, obviously, was not a weak case. I could probably do a long, long post about that, but for now I will toot The Jackal’s horn. Toot toot.
How did the prosecution prove its case?
The New York Times has a good summary of what happened in the courtroom after the jurors repeatedly said, “Guilty.” But as I followed along in real time, I couldn’t help but feel unsurprised. The jury did not even deliberate for that long, especially when you consider the sheer number of exhibits and pieces of evidence.
If the media wants to point to anyone who was convinced by how straightforward the case was, you could just look at the 12 jurors, which reportedly included a Trump supporter.1 They held on to the case for less than 48 hours and returned a unanimous verdict on all 34 counts in short order.
I hate to go back to a graphic I have used repeatedly, but here it is:
Again, there is no question that Trump paid Michael Cohen the money as a “reimbursement” for the fees paid to Stormy Daniels. There is no question that the Trump Organization’s books were falsified to conceal this fact. And there is no question that Trump did all of this with the intent to conceal another crime (namely, election fraud). The case is pretty black and white, and prosecutors did a stellar job of convincing the jury.
What has stood out to me about the conservative reaction (which, spoiler, has been insane)2 is how closely it resembles the left-wing reaction to the Dobbs decision (I wrote about this at the time). When Roe was overturned, liberals made a lot of statements about the bad outcomes that such a decision would produce, but no one was defending Roe on the merits. Trump has been saying at rallies that “everyone” wanted Roe overturned, and while that is obviously false, there is a kernel of truth buried of the bottom of the popcorn bowl. Even liberal legal scholars conceded that there was no real defense of Roe on the merits, mostly because it was a poorly written and reasoned decision (which could not even be cleaned up by Planned Parenthood v. Casey, which was somehow worse).
In the same way, no conservative is defending Trump on the merits. They all know he falsified his business records, and they know he did it to hide a payment to Cohen. They know he slept with Stormy Daniels and wanted to cover up the affair. And they all know that there was zero chance Trump would have gone through with this payment had the election not been coming up.
When you pull back and look at this from 30,000 feet, it is fair to ask if the concealment of Trump’s Stormy Night™ altered the outcome of an extremely close election in 2016. But instead of processing those facts, it has just been a knee-jerk defense of Trump, without producing a defense of him on the merits.
OK, but this was obviously a targeted prosecution.
I want to be very clear here: This is an extremely right-wing view that is not shared by the broader public. If you currently believe the polls that show Trump ahead of Biden, then you should also believe the polls that show Americans are more likely than not to say these charges are warranted and that Trump did something illegal. Those same polls show that only 25% of Americans view Trump’s actions as legal, or that they did not warrant an indictment even if they were illegal. So, if everyone around you is saying that the trial was “rigged” or that the charges were finagled to get Trump, remember that we self-select our social circles and those people may be well-outside of the mainstream.
Therefore, you should not be surprised that I fundamentally reject this narrative. In fact, I want to turn it on its head. And like any good American writer, I want to do it through the prism of Hollywood.
A movie about Trump is coming out later this year, aptly called The Apprentice, and it will detail Trump’s relationship with Roy Cohn. Fun fact: Trump is being portrayed by Sebastian Stan, and Cohn is being portrayed by everyone’s favorite Kendall, Jeremy Strong (he was previously portrayed by Al Pacino in Angels in America).
Cohn was an attorney for the mafia, and he was a huge influence on Trump. Cohn defended the lowest of lowlifes aggressively in court, and that attracted Trump to him. You can see the hallmarks of Cohn’s philosophy in Trump’s defense in the trial: Defend yourself always, give no quarter to your opponents, and deny deny deny. It didn’t work, but Cohn wasn’t the only bad influence on Trump.
From jump street, Trump’s company was heavily involved with the New York Mafia. Wayne Barrett details Trump’s connection to the Mob in, Trump: The Deals and the Downfall (which no one has read, but everyone should). He talks about how even Trump’s father had connections to the Mafia:
[Genovese crime family associated Willie] Tomasello also had the benefit of bringing along his own political allies, foremost among them East New York district leader Meade Esposito, a bail bondsman with a legion of mob associations who would eventually become a Brooklyn Democratic boss. Esposito hosted his club parties in a Bensonhurst restaurant owned by Carlo Gambino, entered the pharmaceutical business with a close associate of the Gambino’s, met regularly on a bench in Brooklyn’s Marine Park with capo Paul Vario, and was ultimately convicted in a federal conspiracy case triggered by wiretaps on another capo’s home phone that picked up Esposito in almost daily conversations. Asked recently what he knew about [Donald Trump’s father] Fred Trump, Esposito had a curt and unusual response: “He was my friend Willie Tomasello’s partner.”3
The counterfactual to, “This was a targeted prosecution,” is, “Trump’s family has been corrupt since the beginning of time.” His companies were first under investigation for systematically discriminating against African-Americans in the 1970s. Both Ivanka Trump and Donald Trump, Jr., were nearly indicted in one of the company’s real estate schemes, right up until the District Attorney received a donation from a Trump associate (more on that later).
So, the framing that I reject is that this is a “targeted” prosecution of the Republican nominee, and the one I accept (because it is reality) is that the GOP has let a con-man with a long history of legal problems take over their Party. It should come as no surprise to them that his legal problems have followed him into the realm of politics. They have fully made this bed, and I hope they are enjoying sleeping in it.
OK, but didn’t Alvin Bragg promise he was going to prosecute Trump? That gives me the ick.
This is a conservative talking point that was even embraced by a “good” Republican, Senator Susan Collins, and it is false. While Bragg did repeatedly say that he would hold Trump accountable (and bragged about his prosecutions of Trump’s companies), he always said, “I will go where the facts take me.” I even listened to Bragg’s interview on Hot 974 (of all places) to confirm this.
The reason Bragg said he would “go where the facts took him” is because he inherited a case from the previous District Attorney, Cy Vance, that was looking at Trump. In other words, the District Attorney’s office was already conducting a Trump investigation that Bragg would inherit should he win the election, so of course he was asked about it repeatedly. This context is important, because many people (including your humble fabulous) never expected Vance to do anything related to Trump, mostly because Vance had punted on prosecuting them for years (he is Bragg’s predecessor who did not bring charges against the Trump kids).5
So, Bragg had that case, which was pretty flashy, and he ultimately decided against bringing it. Two prosecutors hired by his office resigned in protest. When Bragg declined to bring those charges, he received praise from conservatives. In fact, it came from a lot of the same people who are now calling this case hopelessly corrupt. I wrote about this last year:
Another criticism I’ve heard about Bragg is that this case is “rarely” brought in New York, and was sort of crafted just to get Trump. However, that’s not true: Since 2015, the falsification of business records charge has been brought 500 times in New York State. That is a lot in less than ten years.
We also have previous indictments in New York that appear remarkably similar to Trump’s, which is evidence that he is not being singled out. I also misstated the number of charges brought in New York: It was actually over 1,000 cases since 2015. Wild!
Another accusation is that this “lawfare” is never brought against Democrats. This is a rich argument, considering that the President’s own son has been indicted, and his trial starts on Monday. Also, there is a current sitting Democratic Senator on trial for bribery and corruption (and members of his own Party have called on him to resign), as well as a Democratic Congressman. If you can find any evidence of other Democrats calling these prosecutions targeted or “rigged,” I’m all ears.
Also, New York has actually brought the business falsification charge more than 5,000 times since 2015. Whoops.
Finally, a fair question to ask is if Bragg has brought any charges against Democrats since he got into public office. Surely, that would help dispel a narrative that he was just out there to get Donald Trump. Can you guess where this is going?
Bragg led the case against Malcolm Smith while the former was at the Southern District of New York. Smith - a New York politician - was indicted, convicted, and sentenced to seven years in prison. Yes, Smith is a Democrat, but that’s not all: When Bragg led the indictment of Smith, he was the majority leader in New York’s Senate. Yes, he got indicted while he was in office (as opposed to Trump, who is currently a retiree). So, instead of assuming that the guy who:
rejected a flashier and sexier case against Trump
has prosecuted Democrats
made it a Campaign promise to fight public corruption
…is just out there to get Trump, maybe entertain the idea that Donald Trump is actually bad. Phillip Bump asks Republicans to consider this inconvenient fact:
The case successfully prosecuted by Bragg was only Trump’s most recent loss in his home state. The Trump Organization was convicted on 17 felony counts and paid a seven-figure penalty. Its CFO went to jail for tax fraud and, later, for lying under oath. That Trump’s business should be ensnared in legal issues wasn’t itself novel. Shortly after the 2016 election, he settled a fraud lawsuit brought by people who had signed up for “Trump University.” Ivanka Trump and Donald Trump Jr. narrowly avoided prosecution on fraud charges of their own — the escape that led to the 2017 criticism of Vance.
I could say this again and again until I am in the ground, but the people who told you that there were moral reasons for supporting Roy Moore in 2017 do not get to lecture us on what prosecutions are or are not justified. Also (and I promise this is the last one), New York State has prosecuted business falsifications almost 10,000 times since 2015. But Trump is unique, somehow.
OK, but what about Trump’s chances on appeal?
I have said previously that Trump has some opportunities on appeal. However, I don’t think they are spectacularly likely to succeed. To wit, if you see Trump supporters saying, “This will 100% get overturned on appeal,” then you should ignore them.
While the charges here were pretty broad, New York State courts have upheld the broadness of the law applied to Trump. In People v. Tavares, the New York Court of Appeals basically said that a felony charge under the falsification of business records statute is satisfied simply with the “intent” to commit or conceal another crime. They did not say that there has to be a unanimous consensus on what the other crime was:
We also reject defendant's contention that a separate crime automatically becomes a material element of falsifying business records in the first degree whenever the People rely on the "intent to conceal" prong of that statute on the theory that concealment, as opposed to an intent to commit another crime or aid in the commission thereof, presupposes a prior completed crime. Read as a whole, it is clear that falsifying business records in the second degree is elevated to a first-degree offense on the basis of an enhanced intent requirement — "an intent to commit another crime or to aid or conceal the commission thereof" — not any additional actus reus element (Penal Law § 175.10). Furthermore, there is no indication that the Legislature intended to treat the components of first-degree falsifying business records differently, allowing consecutive sentences when a defendant makes a false entry with the intent to commit or aid in the commission of another crime, but not when a defendant performs the same action with the intent to conceal an entirely separate crime. We therefore conclude that the statutory elements of the felony sex offense are categorically discrete from the falsifying business records offense, and that "the absence of legislatively declared interdependence in their definitions is evident, compelling an interpretation that consecutive sentences are not forbidden here" (my emphasis).
Still, it does not seem open and shut to me. Although I think Justice Merchan was careful to head off any possible attempts at an appeal, his jury instructions could get a look in New York State, and the broadness of this law could get a look from SCOTUS. However, both actions would likely come after the election in November. In addition, Trump’s team is apparently focused on Daniels’s testimony during trial, something I identified as a potential mistrial issue. That gives you a clue as to how they see the appeal going for them.
OK, what about jail time?
I have said a lot that Trump is not likely to see jail time, but George Conway disagrees with me. I can only say that if any other defendant had:
Been held in contempt 10+ times.
Been reprimanded by the judge for talking to jurors.
Expressed zero remorse for his actions.
…it is unquestionable that the book would be thrown at him. If Donald Trump were actually Donald Brown, he would 1000% be looking at prison time, even if he were a first-time offender. If you want to make a conservative squirm, simply ask them:
“OK, he was convicted, and was held in contempt multiple times. Any other defendant would get jail time. Do you think it would be fair for Donald Trump to be the exception? Do you think he should get special treatment?”
Alright, cool. But this will certainly help him in the election, right?
The idea that Trump’s indictments have “helped” him during the primary season has been repeatedly rejected by the Jackal, based on a lack of data and evidence. The idea that a prosecution helps a presidential candidate is baffling to me. I was unfortunately fully awake for the 2016 Election, and distinctly remember that Hillary’s email fuzziness made voters skeptical of her, and a lot of that was tied to an active criminal investigation. In general, voters do not like to vote for convicted felons. In fact (going back to Roy Moore), even super-conservative Alabamans are hesitant to vote for a guy who has credible sexual accusations leveled against him.
I think this case will very obviously hurt Trump, but to be honest, he already had a pretty much insurmountable hill to climb in order to beat Biden in November. Historically, incumbents presiding over a strong economy win reelection, occasionally in landslide victories. That is our exact scenario right now.
Add into that this case, along with the E. Jean Carroll “guilty verdict” (which allows someone to legally call Trump a rapist), and other cases, and you can see how Trump will have a lot of baggage going into November.
I also think a lot of people have forgotten that a civil case brought by the January 6th police officers is poised to come up before the election too. Everyone is sleeping on this case, which will force Trump to call a bunch of cops liars in the months right before the election. Back Attack the Blue.™
Thinking this verdict “helps” Trump is an extremely online take that would sound weird in any other context. If Hillary had been indicted in 2016, would that have helped her? It is brain galaxy thinking. All that said, I would ignore polls about this for the next few weeks. They are likely to contain something called “response bias,” where you could see Democrats (or Republicans) more enthusiastic about talking to pollsters and telling them how excited/disappointed they are.
I’ll end with this: The most sane and sensible thing to do right now would be for Republicans to call on Trump to step out of the race for President. He will be sentenced a few days before the Republican nomination, at which time he could be only be appearing due to a stay in his sentencing (this would happen even if he gets jail time).
The Republican Party has a long, storied history to be proud of, and they have a lot of capable candidates worthy of running against Joe Biden. For the good of the country, they should ask Donald Trump to step down.
What? Why are you asking if I’m huffing glue right now?
An appeal to SCOTUS.
A couple weeks ago, I addressed Justice Sam Alito’s upside-down American flag flying outside his house. Since that time, the media has found another flag outside of his vacation house in New Jersey.
Democrats asked Alito to recuse himself, and he said no, basically blaming his wife for everything. So, I’ll say this: I do not think anything Alito did warrants recusal, which has a super high bar. However, when I saw the Appeal to Heaven flag outside his vacation house, that one struck me as markedly worse than the upside-down American flag.
To be honest, I didn’t know the upside-down flag had become a January 6th symbol until I read the Alito story. The Appeal to Heaven flag, however, I am fully aware of as a Christian Nationalist symbol. It has been adopted (especially in charismatic circles) as part of the “seven mountain mandate” to take over America and impose “Christian” rule. That leaves me in the awkward position of trying to figure out if Alito knew about that meaning before September 2023 (when he was flying the flag).
My assumption is that he and his wife had no idea about the flag’s hidden meaning because they are Boomers (#Agism). They are also Catholic and unlikely to run into the Bethel/Dutch Sheets/Kenneth Copeland crowd on their own. But this goes back to a long-standing criticism of SCOTUS: If they police themselves, how can we trust them to do it with our best interests in mind?
Cocktail!
OK, summer is coming, so we need summer cocktails. I came across a neat one recently, called the Los Angeles:
The recipe is:
2 oz Bourbon
3/4 oz Lemon Juice
3/4 oz Simple Syrup
1/3 oz Sweet Vermouth
Egg White
You shake, and strain into a glass with no garnish. Although I liked this version (and it is very summer-y), it was a little too sweet for me. So, I reduced the simple syrup down to 1/4 oz, and swapped the sweet vermouth with China China (which is also used in a Brooklyn, if you need an excuse to buy it). China China is a super underrated liqueur, which has a complex, bitter orange taste to it.
I preferred my version, which I will call the Guilty Verdict to celebrate a certain dude being held accountable to the rule of law.
Should-Reads:
Benjamin Wittes has thoughts on the conviction and they are good.
This piece on 3M and their use of forever chemicals absolutely shocked me. My mouth was open the entire time. Give it a read and send it to about 20 other people.
We are really close to the word limit, so I’m ending it here. Thanks for tuning into the Jackal during the Trump trial, which felt pretty long. We are back to normal stuff for the next few weeks.
I am begging people in the media: Do not try to find the jurors. Leave them alone. At least let them enjoy their summer.
I have said this repeatedly, but Sean Davis was someone I would have said was a great, principled conservative who ran a great website. We used to follow each other on Twitter! But then the Federalist’s donor/bankroller demanded that they shift from their Never-Trump stance prior to the 2016 election to Pro-Trump going forward, and Davis pushed out anyone from his social circle that conflicted with that. A microcosm of how Trump (and love of money) corrupts everything.
Page 49 of Barrett’s book.
Hot 97 is the local Hip-Hop station in New York and it is the best radio station in New York. No one seriously debates that, and if they do, they are wrong.
Yes, Vance’s election campaign received 34K from a Trump affiliate. Vance later returned the money.
Really good.