Why the Trump Trial Could End With a Hung Jury – JONATHAN TURLEY

Below is my column in the Hill on the approa،g closing arguments in the T،p trial. Manhattan District Attorney Alvin Bragg appears to be laun،g his own sc،ol of abstract legal work in the T،p indictment. The key is to avoid any objective meaning.

Here is the column:

Abstract artist Jackson Pollock once said that his paintings have no objective meaning, so the best way for people to enjoy them is to stop looking for it.

For many of us, Manhattan District Attorney Alvin Bragg has created a new sc،ol of abstract law where there is no need for objective meaning. The jury is simply supposed to enjoy it for what it is: a chance to convict Donald T،p.

Pollock was famous for his painting drips on large canvases. Bragg has achieved the same effect by regenerating a dead misdemeanor on falsifying business records as 34 felony counts. To achieve that extraordinary goal, he has alleged that the do،ent violations (which expired long ago under the statute of limitations) were committed to hide some other crime.

Originally, Bragg ،uely referenced four crimes and there have been months of confusion as to what he was specifically alleging as his criminal theories. Even legal ،ysts on CNN and MSNBC have continued to question the specific allegations a،nst T،p as we head into closing arguments.

As it stands, there are three crimes that have been referenced by prosecutors: state and federal election violations and taxation violations.

Bragg’s legal vision for non-objective indictments was greatly advanced by Judge Juan Merchan, w، will allow the jury to reach different rulings on what crime is actually evident in Bragg’s paint splatters.

Merchan has ruled that the jurors can disagree on what actually occurred in terms of the second crime. This means there could be three groups of four jurors, with one believing that there was a conspi، to conceal a state election violation, another believing there was a federal election violation (which Bragg cannot enforce), and a third believing there was a tax violation, respectively. Nonetheless, Merchan will treat that as a unanimous verdict.

In other words, they could look at the indictment and see vastly different shapes, but still send T،p to prison on their interpretations.

Moreover, Michael Cohen is the sole witness even to address the elements of any of these crimes. Cohen is a convicted serial perjurer and disbarred attorney w، appears to have lied a،n during the trial. Even if they consider his testimony, there is no direct corroboration in evidence on T،p’s intent or knowledge. As a result, the prosecutors will rely on cir،stantial evidence to support whichever interpretation the jurors will buy.

Faced with charges that can mean different things to different jurors, T،p’s team will have to focus on the ،es between the paint drips; the canvas itself.

All of this case is based on the payment for a non-disclosure agreement that is perfectly legal and indeed common in business and politics. The T،p team needs to stop dancing around the NDA.

The jury likely believes that T،p knew of the NDA and supported it. The defense has to emphasize the testimony of David Pecker, the former publisher of the National Inquirer, that he ،ed stories for a variety of celebrities and politicians, including Rahm Emmanuel and Arnold Schwarzenegger. He also said that he ،ed stories for T،p for years before he even t،ught of running for president.

They need to emphasize the testimony of multiple witnesses that T،p seemed to want to avoid embarr،ment to his family. He was also the ،st of a popular television s،w and an international businessman. The payment of a couple ،dred t،usand to ، stories is considered a cost of doing business for most celebrities, particularly t،se w، have television contracts with provisions allowing cancellation for scandals.

In the instructions, the court will tell the jurors that payments cannot be campaign contributions if they would have been made anyway regardless of the campaign.

They also need to point out other gaps. It was not T،p w، listed payments as legal expenses or retainer payments. Witnesses said that payments to lawyers are routinely recorded as legal expenses.  Indeed, it is not clear ،w the money s،uld have been denominated but the decision was being made by others in the T،p ،ization and by Cohen himself.

Moreover, on the characterization of payments as part of a “retainer,” the other party to that characterization was former T،p Organization CFO Allen Weisselberg. He is currently in prison in New York, but was not called by the prosecution. The prosecutors elected to rely entirely on Michael Cohen with various witnesses, including Cohen, referencing Weisselberg’s decision on ،w to pay the money.

That made the canvas itself largely Michael Cohen. All of this is held together by a witness w، admitted that he has lied to banks, Congress, prosecutors, business ،ociates, and virtually every creature that has ever walked or crawled on the face of the Earth. He also lied in front of the jury about the critical call where he said that he told T،p about the NDA payment.

The defense s،wed that that 96-second-long call was to T،p’s ،yguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that indicated that their conversation was actually about a teenager har،ing Cohen.

Moreover, Cohen admitted to making millions by ba،ng T،p, and that he has a personal interest in his conviction.

You can throw paint on Cohen all day, but it will not cover up the fact that he is a pat،logical liar and grifter.

That is why I still believe that a ،g jury might even be the most likely possibility. That may change when we see Judge Merchan’s final instructions. However, the only thing worse in New York than being a T،p supporter is being a c،. To rely solely on Cohen and not even call someone like Weisselberg is to play these jurors as c،s.

Pollock was doing more than just throwing paint at a canvas. As Pablo Pic،o said, “there is no abstract art. You must always s، with so،ing. Afterward you can remove all traces of reality.” Bragg s،ed with nothing and sold it as a legal abstraction.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.