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President Trump’s actual crime in his New York trial was not that misdemeanor accounting violations magically transformed into 34 felonies. His crime was that he won the presidential election and threatened to win it again. The New York Democrats prosecuted Trump solely to give their unpopular candidate a political advantage by threatening to convict and jail his Republican opponent. And that’s it.
But using our legal system as a tool of progressive politics comes at a high cost. It puts the integrity of that system — and our republic — at risk.
Recognizing the inevitable influence of political and cultural sympathies on the judicial process, our legal system has certain safeguards in place to ensure the integrity of the judicial process, including ensuring that the law is clear, that judges are impartial, and that prosecutors act as ministers of justice who enforce the law fairly rather than using it as a political cudgel.
Trump was denied these protections at every stage of his prosecution.
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First, the law. Every citizen has a responsibility to know the law, so the law must be knowable. Defendants need to understand what they are being accused of so that they can adequately defend themselves against it. In fact, the Sixth Amendment gives defendants a constitutional right to be “informed of the charges against them and the grounds against them.”
Trump was denied this most basic due process protection.
According to CNN chief legal analyst Ellie Honig, District Attorney Alan Bragg inflated misdemeanor charges that had expired, arguing that the falsification of business records was done ‘with the intent to commit another crime,’ and “reviving them with electric shock within the longer felony statute of limitations.”
Bragg is inexcusable for “refusing to specify what those illegal means actually were, and the judge refused to enforce them.” [Bragg] “Attorneys are not obligated to pay attorneys’ fees until just before closing arguments. Is the constitutional obligation to inform defendants of the charges against them before trial being met?”
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ABC’s chief legal analyst Dan Abrams agreed, questioning, “Why didn’t the defense even know what the charges were that they were going to apply, what law they were going to apply… I think there were a lot of questions about this case because the defense was making closing arguments without even knowing what the law was that they were going to be arguing against.”
As CNN’s Honig accurately summarized, the charges against Trump were “vague and largely unprecedented. In fact, no state prosecutor in New York, Wyoming, or anywhere has ever brought federal election law as a direct or predicate state crime against anyone or anything. Never. Not once.” The charges were “clearly crafted individually and targeted solely at the former president and no one else.”
That certainly seems political, doesn’t it?
Of course, an impartial judge could have dealt with these issues. But what about Judge Marchan, who served as presiding judge? The New York State Rules of Judicial Conduct require judges to “avoid even the slightest suspicion of impropriety in all judicial activities” and to “perform the duties of a judicial office impartially and diligently.” In fact, the rules state that “in any proceeding in which the judge’s impartiality is reasonably called into question, a judge shall disqualify himself or herself.”
Was this a case that should have been disqualified according to those standards?
Well, to avoid any appearance of impropriety, the Judicial Code specifically prohibits judges from “donating to political organizations or candidates.” However, according to CNN, Judge Marchan donated to the Biden campaign’s “Progressive Voter Turnout Project” and to an organization called “Stop Republicans.”
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Yes, it’s actually called “Stop Republicans.” According to its website, the group is “dedicated to resisting the Republican Party and the radical right-wing legacy of Donald Trump.”
The amount he donated was $35, a small amount that likely would have allowed him to avoid the more rigorous scrutiny that would have been expected in other cases (which may be why the amount was so small), but it should be noted that, for good reason, the Judicial Code prohibits “donations” regardless of amount.
People donate these amounts not because they believe it will affect the election; they do so to show they’re on a team — in this case, the Biden campaign. The purpose of giving like this is to show partiality — to support the candidate or cause you’re donating to. Why donate otherwise?
So would Judge Marchan’s “impartiality be reasonably called into question”? The defendant was a leading contender for the Republican presidential nomination. The judge not only supported his Democratic opponent, but also groups dedicated to undermining the Republican Party in general. A guilty verdict could do just that.
Seriously, this doesn’t seem like such a dire situation.
After Trump’s verdict, Bragg praised prosecutors for “doing their job.” “The jury has spoken.”
What about District Attorney Bragg, who, according to New York State’s professional ethics rules, has “the responsibility of a minister of law, not just a lawyer”? To get elected in ultra-progressive New York City, Bragg bragged about being part of a team that “sued Trump over 100 times” and that he was “the candidate with experience running against Donald Trump on the campaign trail.”
He also acknowledged the political importance of pursuing the former president, saying “it would be hard to argue with the fact that this will be the most important and most high-profile case.”
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Needless to say, he won the election and then had his “high profile case.” Known for freeing people accused of actual crimes, he went after President Trump with unparalleled zeal.
The importance of these protections against fraud was especially acute in Trump’s trial because the trial took place in Manhattan, New York City, where 87% of residents voted for Biden in the 2020 election — the highest percentage of any major U.S. metropolitan area. Denying Trump these due process protections is tantamount to convicting him.
One would have to be extremely naive to believe that this case was decided based on an unbiased application of the law to the facts, rather than on obvious political bias. This was always a political attempt to provide Democrats with enough of an issue to overcome President Biden’s unpopular policies and fading intellectual acuity. George Soros’ son Alex made that very clear recently, saying “Democrats should call Trump a convicted felon at every opportunity.” Make no mistake, they will.
Democrats constantly talk about preserving democracy while making every effort to subvert it when the political tactics work in their favor. President Trump’s loafer trial is a prime example. If this tactic is successful, loaferism will become standard operating procedure for both parties and it will be a disaster for the country. Even the most ardent Trump hater should know that democracy cannot be preserved by abandoning it.
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Trump’s conviction will likely be overturned on appeal, but not until after the next election. But we can still put an end to this anti-democratic power grab. Our republic has one last line of defense: political accountability.
The ruling is expected to be handed down in November of this year.
Andy Puzder served as CEO of CKE Restaurants for over 16 years following a career as an attorney. He currently serves as a Distinguished Visiting Fellow at the Heritage Foundation and a Senior Fellow at the Pepperdine University School of Public Policy and the America First Institute. His next book, “Tyranny of the Victims: The Ugly Truth of Stakeholder Capitalism,” is scheduled for publication early next year. The views expressed here are Puzder’s own and do not necessarily reflect the institutional position of the Heritage Foundation or its Board of Trustees.
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