The paradox about Donald Trump’s conviction on Thursday for falsifying business records is not that he can still stand for president but that his chances of being elected again on November 5, 2024, seem undiminished.
“A rigged disgraceful trial,” Trump called his conviction; a “shameful day in American history” Republican Speaker of the House of Representatives Mike Johnson added. He and his party are shamelessly amoral, and their supporters are happy to vote a convicted felon as their president and commander-in-chief while the rest of us look on aghast at the prospect.
Trump will be sentenced on July 11, and legal experts do not think he will receive a custodial sentence, although a retired judge told CNN he might well get one that will be stayed pending appeal. The judge would be wise to ignore Trump’s childish outbursts outside court – the man sounds unhinged. His outbursts do not strictly aggravate Trump’s offenses, and the judge has to be careful not to be seen to encroach on the separation of powers between the judiciary and the executive, as an immediate custodial sentence could interfere with the election of the US president.
The Case Against Trump
The case against Trump was that in 2006 he had a sexual affair with Stormy Daniels and that in 2016 he conspired with his lawyer, Mike Cohen, to pay her hush money during his campaign to become president. The prosecution alleged that after he became president in 2017 “with intent to defraud and intent to commit another crime and aid and conceal its commission,” he reimbursed Cohen and recorded the payments as legal expenses.
The main evidence against Trump was from Cohen. Trump’s defense team thought they could destroy Cohen’s credibility as he was a proven liar and felon and a man with animus against Trump – the two had fallen out big time. It didn’t work, and the jury came back and convicted Trump of all 34 charges – not least because Cohen had done time for his part in the conspiracy.
It was all very well to attack the credibility of Cohen, but in a trial where the prosecution alleged reimbursements for past hush payments, it was crucial to call Trump to make good his case that the payments were indeed legal expenses. After all, he was president of the US at the time, and the idea that a man who still aspires to be president and commander-in-chief chickened out of giving evidence was fatal to his defense.
Screaming outside the courtroom that he had done nothing wrong does not cut it – why did he not manfully take the stand and be cross-examined in front of the jury instead of crying foul outside the courtroom after the event?
It is true that the 5th amendment of the American Constitution protects defendants against self-incrimination and that neither judge nor prosecutor is allowed to suggest adverse inferences of guilt from a defendant’s failure to take the stand. But that does not mean it does not occur to juries that a defendant is afraid to take the stand because his evidence would not stand up to detailed and rigorous cross-examination.
Juries normally look at the way the defense is conducted, and if they think there is a gaping hole in it because the defendant has not taken the stand, the failure seeps into their deliberations even though they are told the prosecution has to prove its case beyond reasonable doubt.
Appeal Prospects
Trump will appeal against his conviction. Two complaints about the conduct of the prosecution have already surfaced. The first is that the evidence of Stormy Daniels was too salacious and that consequently its prejudicial effect far exceeded its probative value and should have been excluded. The prosecution presumably called her to show that the salacious detail was precisely why Trump wanted her silenced and why she had to be paid hush money, and as such it was highly probative.
The second is that Trump had asked for a different venue for the hearing than New York’s Manhattan, which he claimed is a Democrat heartland. The general principle is that trial venue is the county or district in which the crime occurred unless the defense can show that the defendant is unlikely to have a fair trial there.
Trump’s complaint is that as the Republican candidate for president later this year, he did not get a fair trial from a jury selected locally. That ground would depend on the view the appeal court in New York takes about the politics of people in Manhattan. If memory serves, jury selection offered Trump an opportunity to challenge individual jurors, and he did so.
Trump’s appeal will not take place before the presidential election, but that doesn’t matter to Trump as his party and supporters are in denial about the character of the man they want to elect US president.
What is fascinating about the prospect of a convicted felon becoming US president, however, is that it is what the founding fathers in their infinite wisdom intended in order to protect the integrity of democracy under the American constitution.
