Jonathan Turley Profile picture
May 29, 2024 16 tweets 4 min read Read on X
I am back in the courtroom for the instructions.
...This judge has stated that he wants to stay close to the standard instructions. The problem is that this case is anything but standard. We will be looking for some of the outstanding issues, particularly on the standard of proof for key elements like "unlawful means." ...
...Yesterday was chilling as the judge allowed the prosecutors to engage in what some of us view as highly improper arguments. That included effectively testifying on facts not in the record. Merchan's view of "argument" was considerably broader for the prosecution than the defense. For the prosecutors making objections, the strike zone seemed like it stretched from dugout to dugout. For the defense, it seemed the size of a postage stamp...
...Judge Merchan is now instructing the jury...
...He has ruled that the jury will not be given copies of the instructions but can ask for them to be read to them again.
...Judge Merchan is giving the standard instruction that they can reach inferences based on facts such as inferring that it rained from seeing people in raincoats. It is a rather quaint instruction after Merchan allowed the prosecutors to state as a "fact" that federal election violations occurred in this case. There is no such violation in this case, but Merchan did nothing to correct the erroneous impression. To carry forward the analogy, Steinglass was just yelling at the jury that there was a virtual hurricane on a perfectly sunny day but the judge remained entirely silent.
......Merchan is telling them that they can only consider Cohen's plea to a federal election violation was only allowed to judge his credibility and offer "context." That is mere meek after the prosecutors said repeatedly that such violations were committed as an indisputable fact and that Trump ordered them to be committed...
......Judge Merchan just said that if they find that any witness has testified with regard to any material fact, they can disregard the entirety of his or her testimony. It could be called the Michael Cohen charge. It seems clear to some of us that Cohen clearly lied about the key call that he cited for telling Trump about the completion of the Daniels deal and his ridiculous claim that he secretly taped Trump for his own benefit...
......Merchan also instructed that they may consider the interests of the witness in the outcome of the case. One of the least convincing parts of the closing argument of the prosecution was the claim that Michael Cohen was attacking Trump and selling merchandise to feed his family. Steinglass portrayed Cohen as struggling in his luxury multimillion dollar condo while making millions. It was a far cry from pushing a food cart down Broadway to support his family...
...Merchan instructed that Cohen is an accomplice and, as such, there is a special concern over such testimony particularly when there are benefits for testimony. There must be corroborating evidence. In other words, you may not convict the defendant solely on the basis of the testimony of Cohen.
...Merchan has instructed that the first count of falsifying business records in the first degree must show that Trump made or causes a false entry to be made. Intent means conscious or purpose to defraud. Intent does not require an intent to defraud any particular person or entry but a general intent to defraud.
...Merchan just delivered the coup de grace instruction. He said that there is no need to agree on what occurred. They can disagree on what the crime was among the three choices.  Thus, this means that they could split 4-4-4 and he will still treat them as unanimous...
...Merchan just noted that, if the money would have been paid regardless of the campaign, it is not a contribution.
...After the federal election violation, Merchan says that the second crime is falsifying other documents. This creates a redundancy with the NY election violation on the falsifying documents. It allows the government to allege the falsification of documents as a felony and then allows such falsification to be also the unlawful means for certain documents. The third is the violation of tax laws.
...So a dead misdemeanor for falsifying business records was zapped back into life by alleging that under NY election law 17-152 it was done to influence the election by the unlawful means of falsification of business records. It is so circular as to produce vertigo. So the jury finds some documents were falsified to use the unlawful means of falsifying other documents. That is only one of three possible crimes and the jury does not have to agree on which was the basis for their conviction.
...The absence of a witness on media practices is becoming more and more significant. Such a witness could have discussed how stories are often killed or planted by campaigns in light of the press exception for common practices by the media. Instead, the prosecutor was allowed to state as a fact what the common practices of the media are in a campaign.

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More from @JonathanTurley

Jun 27
...We have our second case. It is another major one: Kennedy v. Braidwood Management. supremecourt.gov/opinions/24pdf…
It is 6-3 in upholding the constitutionality of the board that issued rules for the covering of preventative case. This avoids a massive potential disruption on covered health care services.
...Justice Thomas dissents with Alito and Gorsuch. Roberts, Kavanaugh, and Barrett join with the liberal justices...
Read 17 tweets
Jun 27
Buckle up . . . Just three boxes. That does not suggest long opinions with six remaining cases...
...here we go...
...we have birthright citizenship. It is written by Barrett. supremecourt.gov/opinions/24pdf…
Read 14 tweets
Jun 26
Five-minute warning. Once again, we have ten cases in the pipeline. We will be watching for any retirement announcements. Justices Thomas and Alito are the most obvious. Thomas may want to extend his time as one of the longest sitting justices, so the best money may be on Alito.
...Both Thomas and Alito would likely want to retire when they can be replaced with a like-minded nominee...
...Alito could well have the Mahmoud case out of Maryland on parental rights and LGBTQ material in public schools...
Read 14 tweets
Jun 22
President Trump just announced that the United States has attacked the nuclear sites in Iran, including Fordow. As discussed in today's column, Trump has history on his side in taking this action without congressional approval... thehill.com/opinion/white-…
...Since Iran has threatened to attack the United States in response to such an operation, it could trigger a series of cascading decisions. For example, under Article Five of the NATO treaty, an attack on one member is an attack on all...
...That is just one of the issues that could arise in a more prolonged conflict if Iran carries out its threat of retaliating against U.S. assets.
Read 10 tweets
Jun 20
Here we go with today's new opinions. Buckle up...
...X is back. We just got McLaughlin Chiropractic Associates v. McKesson with a 6-3 decision on the Hobbs Act. supremecourt.gov/opinions/24pdf…
...We are working up the line of seniority. That was another Kavanaugh decision...
Read 11 tweets
Jun 18
Today's decision upholding the Tennessee law restricting gender transition care for minors has enormous implications for a variety of transgender cases. Chief Justice Roberts declared "The Equal Protection Clause does not resolve these disagreements."...
...The Court rejected the use of intermediate scrutiny that was just used by a judge in Boston to bar the Trump administration from requiring either male or female designations on passports...
...There is still room here for future challenges. The Court found that there was no discrimination on the basis of transgender status and noted that "absent a showing that SB1’s prohibitions are pretexts designed to effect invidious discrimination against transgender individuals, the law does not classify on the basis of transgender status."...
Read 16 tweets

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