What the Trump verdict says about the sorry state of American justice
National Post, 07 June 2024
U.S. prosecutors can usually convict anyone of anything if they are so determined
The tawdriness of it all — a presidential candidate paying off a porn star — was off-putting. But the Trump verdict is instructive.
Not that the guilty verdict means Trump is guilty of a crime. Not all appalling behaviour is criminal. The guilty verdict is not surprising because so fearsome is the power of America’s prosecutorial state that police and prosecutors can usually convict anyone of anything if they are so determined. I wrote about how a Republican justice department did that to the longest-serving Republican senator, Ted Stevens, when Trump was indicted last year.
Canadians ought not be smug. In Ontario, a corrupt system falsely convicted parents of killing their own children. So terrifying was the power of the prosecutorial apparatus that some even confessed to doing what they had not done.
Yet my claim — that no one should be thought guilty solely on the basis of a conviction in an American court — strikes many as too broad. Yes, there are many guilty people who are convicted, but a mere conviction should not be sufficient to convince the impartial observer that justice was done.
The recent Trump trial is a teachable tawdry moment. The headlines blared that he was convicted on 34 felony counts. Thirty-four! It must have been a vast criminal conspiracy. The possible sentence — four years per count — could be 136 years.
Four lessons emerge from this trial about how American prosecutors abuse their power: inflation, imagination, multiplication, and documentation.
Inflation: Donald Trump was accused of paying hush money, which is not a crime at all, and “falsifying business records” to conceal it, which is a misdemeanour under New York State law. The misdemeanour can be charged as a felony if it is intended to facilitate another crime. So Trump was charged with felonies. Inflating charges is so common that people are often charged with racketeering, money laundering, fraudulent conspiracies, simply for intimidation purposes — and those charges are then dropped along the way. In Trump’s case, the inflation was necessary for the political impact of a trial; a misdemeanour would be unlikely to produce five weeks in court.
Imagination: American prosecutors encourage juries to imagine more than the evidence shows, or even what the indictment charges. The “other crime,” which raised Trump’s misdemeanour charges to felonies, was never specified, even at trial. There were hints at an election finance violation, but that it is a federal matter, so it would not be obvious why the matter was being tried by the Manhattan prosecutor.
In another high-profile New York case, the appellate court recently overturned Harvey Weinstein’s convictions on the grounds that the prosecutors invited the jury to imagine that he was guilty of a pattern of crimes for which he was not charged, let alone convicted.
Multiplication: Much was made of the finding of guilt on all 34 counts. In point of fact, either it would have been acquittal on all or guilty on all, because the 34 counts were all for the same thing. The charge was this: Trump paid $160,000 in hush money through his lawyer, and then covered it up by claiming it as legal expenses rather than a reimbursement.
Trump paid his lawyer in 11 monthly instalments, hence 11 crimes! Actually, each payment had three elements — the lawyer’s invoice, the actual cheque, and the recording of the cheque in Trump’s accounts. So 33 crimes! And then the 34th count was tacked on because one payment was recorded twice.
Consider the absurdity of the multiplication approach favoured by prosecutors. Had Trump paid his lawyer all at once, the 34 felony counts would have shrunk to three, and the corresponding possible sentence from 136 years to 12. If he paid without logging the invoice or recording the payment — one count. If he had paid in cash — no cheque to record — no counts.
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