Jury Shopping?

            Upon taking office on 1 January 2022, New York County (i.e. Manhattan) District Attorney Alvin Bragg inherited several investigations of Donald Trump that had been launched by his predecessor, Cyrus Vance, Jr.  One, into the Trump Organization, rather than Trump himself, he let go forward to a successful conclusion.  Another centered on money paid to the adult performer who used the stage-name “Stormy Daniels.” Vance’s prosecutors had been trying to figure out that case for a long time.  Bragg suspended it.  Then he revived it. 

            The case is complicated.[1]  According to the New York Times, “falsifying business records can be a crime.”  (Emphasis added.)  That “can” implies that it also may not be a crime. Trump is said to have violated New York State law by falsifying business records.  Specifically, the Trump Organization reimbursed Trump’s personal attorney, Michael Cohen, for the $130,000 in “hush money” that Cohen paid to Daniels on behalf of Trump.  The money was listed as a legal expense. 

However, simply falsifying business records with an “intent to defraud” is a misdemeanor.  To elevate the crime to a felony, Bragg’s prosecutors need to demonstrate that Trump intended to “commit or conceal a second crime,” again in the words of the New York Times.  Current speculation holds that the “second crime” could be entering the money paid to Trump’s lawyer, Michael Cohen, as a “legal expense”[2] when it was actually an unreported campaign donation. 

            According to the Times, “Whether hush money can amount to a campaign donation is not settled law.”  Either it is very common and undiscovered or no one but the occasional sexually incontinent politician engages in it.  One of Trump’s lawyers has argued that he paid the money purely to spare his family from a sordid story that he has long denied.  “He had to pay the money because there was going to be an allegation that was going to be publicly embarrassing for him, regardless of the campaign.”

            Making an unreported campaign donation violates both Federal and New York State law.  However, the Federal prosecutors are not pursuing this case.  Can a state official prosecute someone for violating a federal law?  Probably not.  So, that leaves prosecuting Trump for violating state election law as the “second crime.”  However, federal election law preempts state election law.  So the unsettled legal status of “hush money” at the federal level raises questions about the viability of this approach.  Still, there are legal loopholes that might serve. 

            Perhaps more to the point, the problem is how an elected district attorney is to get Donald Trump in front of what the New York Times calls a “jury in deep-blue Manhattan.”  For that matter, in Fulton county, Georgia, a District Attorney convened a grand jury to examine Trump’s attempts to overturn the 2020 election results in the Peach State.[3]  In the November 2020 presidential election voting in Fulton county, Joe Biden won 72.65 percent of the vote.  Is this jury shopping?  Still, it may turn out that sometimes ham sandwiches are safe.          

[1] Ben Protess, Jonah E. Bromwich, William K. Rashbaum, and Kate Christobek, “Possible Case Against Trump Would Hinge on Untested Theory,” NYT, 22 March 2023. 

[2] The money went to a lawyer.  What else is it?  There’s a legal form for reporting “hush money”?  If there is, would anyone believe that someone in the Federal bureaucracy wouldn’t leak that information? 

[3] Glenn Thrush and Adam Goldman, “Trump Inquiries Pose Stress Test For Justice System,” NYT, 24 March 2023. 


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