Posted on 06/10/2024 1:52:42 PM PDT by Eccl 10:2
In Episode 2 of Straight Down the Middle, I take a look at whether the decision to charge and try Donald Trump for these crimes was "selective prosecution" on the part of Manhattan DA Alvin Bragg.
I also tackle the issue of jury unanimity and whether the jury needed to find a unanimous verdict and what "unanimous" really meant here and how it was applied.
(Excerpt) Read more at youtube.com ...
Bottom line, as I understand it: this would get overturned in a heartbeat in a fair court. But can Trump get a fair court soon enough?
Selective Prosecution
0:00
hello everyone welcome back to straight
0:01
down the- middle here’s something I have
0:03
heard so many times about the Trump
0:05
verdict people have said to me people
0:07
against the conviction they say to me
0:09
look Professor come on this was
0:11
obviously a politically motivated
0:13
prosecution Bragg said he was going to
0:15
go after Trump when he was running for
0:17
office and he did isn’t that enough to
0:19
make it unconstitutional well I want to
0:21
do an episode on that because it’s a
0:22
very good question I want to try to walk
0:24
you through that and give you the
0:26
arguments on both sides so let’s Jump
0:28
Right In first of all it’s true district
0:30
attorney Bragg running for office said
0:33
over and over that he was going to go
0:34
after Trump he said I’m the best
0:36
candidate to go after him he use those
0:38
terms go after him he repeatedly
0:40
denounced uh president Trump’s policies
0:42
he one time said that Trump had embraced
0:45
white nationalism and he made it clear
0:47
that he thought that a trump presidency
0:49
would be a danger to the nation is that
0:51
enough to make it unconstitutional well
0:53
how about this we add to this that
0:55
here’s something else we know that once
0:56
brag got into office we know that he
0:59
looked for crimes that he could
1:01
prosecute Trump for he had his office
1:03
consider several different crimes he
1:04
finally settled on this business records
1:07
falsification crime and he went after
1:09
him and he got him is that enough to
1:11
make it unconstitutional well it’s
1:13
troubling for sure have you ever heard
1:15
the phrase show me the man and I’ll find
1:18
you the crime that was a saying popular
1:20
in Soviet Russia under Stalin supposedly
1:23
it’s what Stalin’s notorious chief of
1:25
the Secret Service secret police said to
1:28
him and we do not want that to be be the
1:30
principle of the American Criminal
1:32
Justice System but is it enough to make
1:34
the prosecution unconstitutional there’s
1:36
a counterargument we could call it the
1:38
Al Capone argument let me tell you what
1:40
it is imagine a 100 years ago some
1:42
district attorney running for office
1:44
says I’m the best candidate to go after
1:47
Al Capone my rival candidates they’re
1:49
afraid they won’t do it or they’re in
1:51
his pocket vote for me and I’ll go after
1:53
Al Capone and then let’s say he gets
1:55
elected to be district attorney he
1:57
starts looking for different crimes to
1:59
prosecute Al oent he finds a tax crime
2:01
didn’t pay his taxes and he prosecutes
2:02
him and he gets him for a tax law
2:04
violation well most people think there’d
2:07
be nothing unconstitutional about that
2:09
so maybe it’s not enough for a
2:12
prosecutor to say he’s going to go after
2:14
somebody then go after him maybe that
2:15
that’s not enough to make a prosecution
2:17
unconstitutional but of course there’s a
2:19
difference in the Al Capone case the
2:21
prosecutor is not going after Al Capone
2:24
for his political activity or his
2:26
political viewpoints and of course
2:27
that’s what a lot of people think brag
2:29
was doing going after Trump specifically
2:32
to derail his candidacy because of
2:34
opposition to his politics and if that’s
2:37
what he was doing well that is
2:38
unconstitutional that’s called selective
2:40
prosecution you cannot prosecute
2:43
somebody because you don’t like their
2:45
politics out of hostility to or or in
2:47
retaliation for their political activity
2:50
that’s just straight up unconstitutional
2:52
the problem is is difficult to prove
2:55
courts have made that kind of claim
2:57
especially difficult to prove so many of
2:59
us might feel on both sides Democrats
3:02
Republicans conservative liberals might
3:03
feel hey that’s what it feels like brag
3:06
was doing but the courts have made that
3:08
kind of claim very hard to prove many
3:10
courts have said there’s got to be a
3:12
comparator what’s a comparator well let
3:14
me explain what a comparator has got to
3:16
be a case that’s similar somebody
3:19
committed a similar offense but was of a
3:21
different political Viewpoint or from a
3:23
different political party and the state
3:25
didn’t prosecute them if you’ve got a
3:27
comparator like that then maybe you can
3:30
make a claim of selective prosecution
3:32
okay let me give you an example of a
3:34
comparator like that that this comes out
3:36
of a case from the District of Columbia
3:37
not long ago it’s a summer of 2020 a
3:40
small group of pro-life protesters stage
3:44
of protest and as part of their protest
3:46
they chalk up a bunch of sidewalks city
3:50
sidewalks with their message pre-born
3:52
lives matter something like that
3:54
pre-born lives matter they put it in
3:56
chalk on a sidewalk and they get
3:57
arrested what they get arrested for
3:59
defense deing public property they’re
4:01
arrested under the District of
4:02
Columbia’s defacement ordinance and
4:04
guess what under that ordinance they are
4:06
probably guilty of defacing public
4:07
property but the defendants they said
4:09
hang on a second just down the street
4:11
this is Summer of 2020 remember they
4:13
said down the street and throughout the
4:14
city there are much bigger protests
4:16
going on and people are chalking up
4:18
sidewalks and chalking up streets and
4:20
buildings with the message black lives
4:22
matter it’s happening all over the city
4:24
and nobody ever prosecuted them not one
4:26
single prosecution for defacement of
4:28
public property but you’re coming after
4:30
us and you’re charging us with
4:32
defacement of public property and the
4:33
District of Columbia circuit in a
4:35
decision from just last year they said
4:37
now that’s a comparator with that
4:38
allegation if you can prove that you’ve
4:40
just stated a good selective prosecution
4:42
claim now of course that’s really hard
4:44
to find a case same time roughly similar
4:48
kind of crime roughly similar facts but
4:50
from a different political party
4:52
different political views you’re almost
4:54
never going to find that right well
4:56
amazingly there might be a comparator
4:59
like that in this Trump case I couldn’t
5:01
believe it when I first read about it
5:02
but let me explain it to you it involves
5:04
Hillary Clinton you got to remember the
5:06
core of the case against Trump what’s
5:08
the core of the case prosecution says
5:10
Trump falsified business records how
5:12
well he took some uh campaign Finance
5:16
expenses those were the that’s the
5:18
$130,000 in hush Money Paid to stormmy
5:20
Daniels the state says those were
5:22
campaign expenses but the Trump
5:24
organization called them legal expenses
5:27
and that was false that’s what the
5:28
prosecution says that was false they
5:30
were campaign expenses not legal
5:32
expenses and because they were campaign
5:34
expenses but not reported as such that’s
5:36
a campaign Finance violation so that was
5:39
the heart and remained the heart
5:40
throughout the case of the prosecution’s
5:42
case against Trump now here’s what’s so
5:45
amazing in 2022 just a couple years ago
5:47
the Federal Election Commission
5:49
determined that the Hillary Clinton
5:51
campaign had committed a campaign
5:53
Finance violation what was it they found
5:56
that in 2016 the very same year that uh
5:59
these events events concerning Trump
6:01
took place that the Clinton campaign had
6:03
paid money to fund the steel dossier you
6:06
remember the steel dossier was a report
6:07
containing very scandalous and
6:09
supposedly incriminating allegations
6:11
against then candidate Trump well we
6:13
didn’t know it at the time but it turns
6:15
out that the steel dossier had been
6:16
funded by the Clinton campaign and when
6:19
it was discovered that the Clinton
6:21
campaign had funded uh the steel dossier
6:23
the federal El commission started
6:25
looking well how did you report those
6:27
payments and it turned out that the
6:29
Clinton campaign had reported them as
6:31
legal expenses that’s right as legal
6:33
expenses and the FEC said those weren’t
6:36
legal expenses those were campaign
6:37
Finance expenses and that violates
6:39
campaign Finance law you can’t call
6:41
campaign expenses legal expenses without
6:43
reporting them well that’s a
6:45
surprisingly similar set of facts but
6:49
here’s the thing they were never
6:50
prosecuted by the New York District
6:52
Attorneys and of course the Clinton
6:53
campaign was located headquartered in
6:55
New York city so they could have been
6:57
and these facts had all come out by 2022
7:00
according to public records there was
7:01
never a single prosecution not of
7:03
Hillary Clinton not of anybody
7:04
associated with her campaign for
7:06
falsifying business records to cover up
7:08
a campaign Finance violation
7:10
notwithstanding the fact that you got on
7:13
the surface of it at least very similar
7:15
facts now I don’t know all the facts of
7:17
the Clinton campaign Finance violation I
7:19
only know what’s in the FEC public
7:21
record but if we accept that public
7:23
record for what it is it sure looks like
7:25
a very similar case the Clinton campaign
7:29
called campaign expenses legal expenses
7:31
to cover up a campaign Finance violation
7:33
but was never prosecuted for that by the
7:36
district attorney in Manhattan if that’s
7:38
true well that might be the kind of
7:40
comparator that courts demand that might
7:42
show selective prosecution a lot of you
7:44
have asked me the following question
Jury Unanimity
7:46
what’s up with the issue of jury
7:48
unanimity in the Trump hush money
7:51
conviction now this is a thorny one I’m
7:53
going to warn you in advance this is for
7:55
people who like to get into the legal
7:57
weeds because this issue of jury un it
8:00
it’s a tough one tough one to understand
8:02
tough one to get through but I’m going
8:03
to walk you through it and I promise you
8:06
I will give you the arguments on both
8:07
sides and I hope that once I’ve done
8:09
that you’ll understand this issue better
8:11
so let’s Dive Right In okay so under the
8:13
United States Constitution in every
8:15
criminal prosecution the jury has to be
8:18
unanimous now you might be surprised to
8:20
hear this but until just a few years ago
8:22
that right even though it’s in the Bill
8:23
of Rights only applied in federal
8:25
prosecutions not state prosecutions but
8:27
as it happens just a few years ago the
8:29
Supreme Court of the United States said
8:31
you know what we’ve been wrong for 100
8:33
years that right applies in state
8:34
prosecutions just as much as in federal
8:37
prosecutions at least in state felony
8:39
prosecutions and of course that’s what
8:41
the prosecution of former president
8:42
Trump was a felony prosecution so jury
8:45
unanimity requirement did apply and
8:48
here’s what the state’s going to say
8:49
where’s the problem the jury was told
8:51
they had to find unanimously that Trump
8:54
falsified business records and that he
8:56
did so to conceal a violation of new New
8:59
York election law okay so what’s the
9:01
problem there was jury unanimity they
9:03
were so instructed they so found where’s
9:05
the problem well the Trump team is going
9:07
to say hang on there’s still a big
9:09
problem because that New York election
9:11
law violation What did that New York
9:14
election statute say it said that it’s
9:16
illegal for two or more people to agree
9:19
to work in concert to influence an
9:22
election through unlawful means that is
9:25
by violating some other statute and
9:27
judge meron instructed the jury did not
9:30
have to be unanimous with respect to
9:32
those unlawful means judge meran threw a
9:34
bunch of theories of what those other
9:36
statutory violations might be at the
9:39
jury through three different theories of
9:41
the jury at a minimum he said it could
9:43
be a tax law violation could be a
9:45
campaign Finance violation could be a
9:47
violation of New York’s business records
9:51
falsification statute the same statute
9:53
that Trump was prosecuted under which
9:56
introduces a whole other element like a
9:57
circularity but put that aside
9:59
he said to the jury you may consider any
10:01
of those possible theories of a
10:04
statutory violation and he didn’t say
10:06
that you can only consider those he said
10:08
you may consider those and you don’t
10:09
have to be unanimous so the Trump team
10:12
says that’s a non-unanimous jury verdict
10:15
and that’s unconstitutional now the
10:17
state’s going to come back and say no no
10:19
no that’s not unconstitutional everybody
10:21
knows that the means by which a
10:23
defendant commits a crime how he commits
10:25
a crime the jury doesn’t have to be
10:27
unanimous about that and the state has
10:29
got some case law on its side because
10:31
the Supreme Court in a series of
10:33
decisions has held that when it comes to
10:35
what the court calls The Brute facts
10:37
underlying a crime the jury doesn’t have
10:40
to be unanimous what does that mean I’ll
10:42
give you an example let’s say defendants
10:44
charged with murder there was an
10:45
altercation bunch of people defendant is
10:47
said to have murdered the victim but six
10:49
of the juries they think yeah we’re
10:51
convinced the defendant murdered the
10:53
victim but we think he did it by
10:54
shooting him and the other six say no we
10:56
don’t think he did it by shooting him
10:58
but we’re convinced that he murdered the
11:00
victim with a knife well guess what
11:02
under Supreme Court president that’s
11:04
constitutional six could think he did it
11:07
by gunshot six could think he did it by
11:09
a knife no problem and so the state’s
11:11
going to say well this is just the same
11:13
it’s just like that the underlying facts
11:15
the jury doesn’t have to be unanimous
11:17
about but the Trump team will come back
11:19
and say well hang on that’s not how it
11:21
works the Supreme Court has also told us
11:23
this that if the jury is presented with
11:26
different crimes not just different
11:27
underlying facts but different kinds of
11:29
crimes so the jury is told both that the
11:32
defendant murdered the victim and that
11:34
the defendant robbed the victim and six
11:36
jurors think yeah we we we believe he
11:39
murdered the victim we don’t think he
11:40
robbed him and six believe no we think
11:42
he robbed him but we don’t think he
11:44
murdered him that’s not a unanimous jury
11:47
verdict you cannot convict on the basis
11:49
of six thinking murder and six thinking
11:51
robbery those are two different crimes
11:53
and if it’s two different crimes that’s
11:55
not unanimous so this Trump people are
11:57
going to say these different theories of
12:00
the unlawful means by which they were
12:02
supposedly trying to influence the
12:04
election those are different crimes you
12:05
got a tax crime you got a campaign
12:07
Finance violation and you’ve got a
12:09
business records falsification and those
12:10
are different crimes so the judge was
12:13
inviting non unanimity with respect to
12:15
different crimes therefore
12:16
unconstitutional that’s what the Trump
12:18
people will say but wait the state has a
12:20
counterargument state’s going to say not
12:22
so fast this was a conspiracy crime the
12:25
New York statute remember says two
12:27
people or more can’t agree to try to
12:30
influence an election through some
12:31
illegal conduct and the state’s going to
12:33
say conspiracy laws are different they
12:36
function totally differently and when it
12:37
comes to conspiracy laws you do not have
12:40
to show unanimity but Trump team’s going
12:42
to come back and say well actually
12:45
you’re right in part conspiracy laws are
12:47
different in many ways but they’re not
12:49
with respect to unanimity and the Trump
12:51
team’s going to have some cases that can
12:53
point to and let me tell you what those
12:54
cases are I told you we’d be getting
12:56
into the legal weeds here but if you’re
12:57
interested here’s how it works
12:59
there’s a federal statute it’s called
13:01
the RICO statute I’m sure many of you
13:03
have heard of it it’s the federal
13:04
racketeering statute and under the
13:06
federal RICO statute one of the crimes
13:08
you can be charged with is conspiracy
13:10
conspiracy to run an Enterprise a
13:12
business or something run an Enterprise
13:14
through a pattern of unlawful acts
13:16
through unlawful means kind of like the
13:19
New York election statute influence an
13:20
election through unlawful means Rico
13:23
running an Enterprise through unlawful
13:24
means well when it comes to charging
13:27
conspiracy under Rico government has
13:29
often tried to say hey we don’t have to
13:31
convince a a unanimous jury of the
13:34
unlawful acts that the defendants uh
13:37
were conspiring to commit the jury
13:39
doesn’t have to be unanimous they can
13:41
four of them can think one crime four of
13:42
them can think another it’s fine but the
13:44
federal courts have said that’s not fine
13:47
the jury can disagree about the
13:48
underlying facts what the Supreme Court
13:50
calls brute facts but if the prosecutors
13:53
are alleging different crimes so the
13:57
prosecutors put before the jury the idea
13:59
or or evidence suggesting that
14:01
defendants conspired to run the
14:03
Enterprise through acts of murder or
14:06
acts of embezzlement or acts of robbery
14:08
federal courts say no no no you cannot
14:10
have non- unanimity there the jury has
14:13
to agree unanimously on the kind of
14:15
crime that was involved but here in the
14:18
Trump prosecution judge meran
14:20
specifically instructed the jury in this
14:23
conspiracy offense that a prosecution
14:26
could throw before the jury different
14:28
crimes that the conspiracy was directed
14:30
toward the tax crime the campaign
14:33
Finance offense or possibly violations
14:36
of New York’s business records
14:37
falsification statute and the jury did
14:39
not have to be unanimous when it came to
14:41
these different kinds of crimes so Trump
14:44
lawyers are going to point to these
14:45
Federal Rico cases and other case is
14:47
going to say no no no that was
14:49
unconstitutional that violated the
14:51
requirement of unanimous verdict okay we
14:54
kind of got into the weeds here but
Outro
14:55
those are going to be the arguments
14:57
they’re going to be made on appeal I
14:58
hope that this has at least clarified it
15:00
for you I will have more episodes
15:02
answering other questions about the uh
15:05
Trump verdict and feel free to keep
15:07
shooting me more questions if you like
15:09
you’ve asked me some great questions you
15:10
can ask me on YouTube you can ask me on
15:12
X I will do my best to answer them I
15:15
might even feature them in another
15:16
episode and I’m also going to be doing
15:18
episodes on major Supreme Court cases as
15:21
they come down this month so if that’s
15:23
of Interest I hope you’ll Tune In
15:24
Goodbye and thanks
transcript:
hello everyone welcome back to straight
down the- middle here’s something I have
heard so many times about the Trump
verdict people have said to me people
against the conviction they say to me
look Professor come on this was
obviously a politically motivated
prosecution Bragg said he was going to
go after Trump when he was running for
office and he did isn’t that enough to
make it unconstitutional well I want to
do an episode on that because it’s a
very good question I want to try to walk
you through that and give you the
arguments on both sides so let’s Jump
Right In first of all it’s true district
attorney Bragg running for office said
over and over that he was going to go
after Trump he said I’m the best
candidate to go after him he use those
terms go after him he repeatedly
denounced uh president Trump’s policies
he one time said that Trump had embraced
white nationalism and he made it clear
that he thought that a trump presidency
would be a danger to the nation is that
enough to make it unconstitutional well
how about this we add to this that
here’s something else we know that once
brag got into office we know that he
looked for crimes that he could
prosecute Trump for he had his office
consider several different crimes he
finally settled on this business records
falsification crime and he went after
him and he got him is that enough to
make it unconstitutional well it’s
troubling for sure have you ever heard
the phrase show me the man and I’ll find
you the crime that was a saying popular
in Soviet Russia under Stalin supposedly
it’s what Stalin’s notorious chief of
the Secret Service secret police said to
him and we do not want that to be be the
principle of the American Criminal
Justice System but is it enough to make
the prosecution unconstitutional there’s
a counterargument we could call it the
Al Capone argument let me tell you what
it is imagine a 100 years ago some
district attorney running for office
says I’m the best candidate to go after
Al Capone my rival candidates they’re
afraid they won’t do it or they’re in
his pocket vote for me and I’ll go after
Al Capone and then let’s say he gets
elected to be district attorney he
starts looking for different crimes to
prosecute Al oent he finds a tax crime
didn’t pay his taxes and he prosecutes
him and he gets him for a tax law
violation well most people think there’d
be nothing unconstitutional about that
so maybe it’s not enough for a
prosecutor to say he’s going to go after
somebody then go after him maybe that
that’s not enough to make a prosecution
unconstitutional but of course there’s a
difference in the Al Capone case the
prosecutor is not going after Al Capone
for his political activity or his
political viewpoints and of course
that’s what a lot of people think brag
was doing going after Trump specifically
to derail his candidacy because of
opposition to his politics and if that’s
what he was doing well that is
unconstitutional that’s called selective
prosecution you cannot prosecute
somebody because you don’t like their
politics out of hostility to or or in
retaliation for their political activity
that’s just straight up unconstitutional
the problem is is difficult to prove
courts have made that kind of claim
especially difficult to prove so many of
us might feel on both sides Democrats
Republicans conservative liberals might
feel hey that’s what it feels like brag
was doing but the courts have made that
kind of claim very hard to prove many
courts have said there’s got to be a
comparator what’s a comparator well let
me explain what a comparator has got to
be a case that’s similar somebody
committed a similar offense but was of a
different political Viewpoint or from a
different political party and the state
didn’t prosecute them if you’ve got a
comparator like that then maybe you can
make a claim of selective prosecution
okay let me give you an example of a
comparator like that that this comes out
of a case from the District of Columbia
not long ago it’s a summer of 2020 a
small group of pro-life protesters stage
of protest and as part of their protest
they chalk up a bunch of sidewalks city
sidewalks with their message pre-born
lives matter something like that
pre-born lives matter they put it in
chalk on a sidewalk and they get
arrested what they get arrested for
defense deing public property they’re
arrested under the District of
Columbia’s defacement ordinance and
guess what under that ordinance they are
probably guilty of defacing public
property but the defendants they said
hang on a second just down the street
this is Summer of 2020 remember they
said down the street and throughout the
city there are much bigger protests
going on and people are chalking up
sidewalks and chalking up streets and
buildings with the message black lives
matter it’s happening all over the city
and nobody ever prosecuted them not one
single prosecution for defacement of
public property but you’re coming after
us and you’re charging us with
defacement of public property and the
District of Columbia circuit in a
decision from just last year they said
now that’s a comparator with that
allegation if you can prove that you’ve
just stated a good selective prosecution
claim now of course that’s really hard
to find a case same time roughly similar
kind of crime roughly similar facts but
from a different political party
different political views you’re almost
never going to find that right well
amazingly there might be a comparator
like that in this Trump case I couldn’t
believe it when I first read about it
but let me explain it to you it involves
Hillary Clinton you got to remember the
core of the case against Trump what’s
the core of the case prosecution says
Trump falsified business records how
well he took some uh campaign Finance
expenses those were the that’s the
$130,000 in hush Money Paid to stormmy
Daniels the state says those were
campaign expenses but the Trump
organization called them legal expenses
and that was false that’s what the
prosecution says that was false they
were campaign expenses not legal
expenses and because they were campaign
expenses but not reported as such that’s
a campaign Finance violation so that was
the heart and remained the heart
throughout the case of the prosecution’s
case against Trump now here’s what’s so
amazing in 2022 just a couple years ago
the Federal Election Commission
determined that the Hillary Clinton
campaign had committed a campaign
Finance violation what was it they found
that in 2016 the very same year that uh
these events events concerning Trump
took place that the Clinton campaign had
paid money to fund the steel dossier you
remember the steel dossier was a report
containing very scandalous and
supposedly incriminating allegations
against then candidate Trump well we
didn’t know it at the time but it turns
out that the steel dossier had been
funded by the Clinton campaign and when
it was discovered that the Clinton
campaign had funded uh the steel dossier
the federal El commission started
looking well how did you report those
payments and it turned out that the
Clinton campaign had reported them as
legal expenses that’s right as legal
expenses and the FEC said those weren’t
legal expenses those were campaign
Finance expenses and that violates
campaign Finance law you can’t call
campaign expenses legal expenses without
reporting them well that’s a
surprisingly similar set of facts but
here’s the thing they were never
prosecuted by the New York District
Attorneys and of course the Clinton
campaign was located headquartered in
New York city so they could have been
and these facts had all come out by 2022
according to public records there was
never a single prosecution not of
Hillary Clinton not of anybody
associated with her campaign for
falsifying business records to cover up
a campaign Finance violation
notwithstanding the fact that you got on
the surface of it at least very similar
facts now I don’t know all the facts of
the Clinton campaign Finance violation I
only know what’s in the FEC public
record but if we accept that public
record for what it is it sure looks like
a very similar case the Clinton campaign
called campaign expenses legal expenses
to cover up a campaign Finance violation
but was never prosecuted for that by the
district attorney in Manhattan if that’s
true well that might be the kind of
comparator that courts demand that might
show selective prosecution a lot of you
have asked me the following question
Jury Unanimity
what’s up with the issue of jury
unanimity in the Trump hush money
conviction now this is a thorny one I’m
going to warn you in advance this is for
people who like to get into the legal
weeds because this issue of jury un it
it’s a tough one tough one to understand
tough one to get through but I’m going
to walk you through it and I promise you
I will give you the arguments on both
sides and I hope that once I’ve done
that you’ll understand this issue better
so let’s Dive Right In okay so under the
United States Constitution in every
criminal prosecution the jury has to be
unanimous now you might be surprised to
hear this but until just a few years ago
that right even though it’s in the Bill
of Rights only applied in federal
prosecutions not state prosecutions but
as it happens just a few years ago the
Supreme Court of the United States said
you know what we’ve been wrong for 100
years that right applies in state
prosecutions just as much as in federal
prosecutions at least in state felony
prosecutions and of course that’s what
the prosecution of former president
Trump was a felony prosecution so jury
unanimity requirement did apply and
here’s what the state’s going to say
where’s the problem the jury was told
they had to find unanimously that Trump
falsified business records and that he
did so to conceal a violation of new New
York election law okay so what’s the
problem there was jury unanimity they
were so instructed they so found where’s
the problem well the Trump team is going
to say hang on there’s still a big
problem because that New York election
law violation What did that New York
election statute say it said that it’s
illegal for two or more people to agree
to work in concert to influence an
election through unlawful means that is
by violating some other statute and
judge meron instructed the jury did not
have to be unanimous with respect to
those unlawful means judge meran threw a
bunch of theories of what those other
statutory violations might be at the
jury through three different theories of
the jury at a minimum he said it could
be a tax law violation could be a
campaign Finance violation could be a
violation of New York’s business records
falsification statute the same statute
that Trump was prosecuted under which
introduces a whole other element like a
circularity but put that aside
he said to the jury you may consider any
of those possible theories of a
statutory violation and he didn’t say
that you can only consider those he said
you may consider those and you don’t
have to be unanimous so the Trump team
says that’s a non-unanimous jury verdict
and that’s unconstitutional now the
state’s going to come back and say no no
no that’s not unconstitutional everybody
knows that the means by which a
defendant commits a crime how he commits
a crime the jury doesn’t have to be
unanimous about that and the state has
got some case law on its side because
the Supreme Court in a series of
decisions has held that when it comes to
what the court calls The Brute facts
underlying a crime the jury doesn’t have
to be unanimous what does that mean I’ll
give you an example let’s say defendants
charged with murder there was an
altercation bunch of people defendant is
said to have murdered the victim but six
of the juries they think yeah we’re
convinced the defendant murdered the
victim but we think he did it by
shooting him and the other six say no we
don’t think he did it by shooting him
but we’re convinced that he murdered the
victim with a knife well guess what
under Supreme Court president that’s
constitutional six could think he did it
by gunshot six could think he did it by
a knife no problem and so the state’s
going to say well this is just the same
it’s just like that the underlying facts
the jury doesn’t have to be unanimous
about but the Trump team will come back
and say well hang on that’s not how it
works the Supreme Court has also told us
this that if the jury is presented with
different crimes not just different
underlying facts but different kinds of
crimes so the jury is told both that the
defendant murdered the victim and that
the defendant robbed the victim and six
jurors think yeah we we we believe he
murdered the victim we don’t think he
robbed him and six believe no we think
he robbed him but we don’t think he
murdered him that’s not a unanimous jury
verdict you cannot convict on the basis
of six thinking murder and six thinking
robbery those are two different crimes
and if it’s two different crimes that’s
not unanimous so this Trump people are
going to say these different theories of
the unlawful means by which they were
supposedly trying to influence the
election those are different crimes you
got a tax crime you got a campaign
Finance violation and you’ve got a
business records falsification and those
are different crimes so the judge was
inviting non unanimity with respect to
different crimes therefore
unconstitutional that’s what the Trump
people will say but wait the state has a
counterargument state’s going to say not
so fast this was a conspiracy crime the
New York statute remember says two
people or more can’t agree to try to
influence an election through some
illegal conduct and the state’s going to
say conspiracy laws are different they
function totally differently and when it
comes to conspiracy laws you do not have
to show unanimity but Trump team’s going
to come back and say well actually
you’re right in part conspiracy laws are
different in many ways but they’re not
with respect to unanimity and the Trump
team’s going to have some cases that can
point to and let me tell you what those
cases are I told you we’d be getting
into the legal weeds here but if you’re
interested here’s how it works
there’s a federal statute it’s called
the RICO statute I’m sure many of you
have heard of it it’s the federal
racketeering statute and under the
federal RICO statute one of the crimes
you can be charged with is conspiracy
conspiracy to run an Enterprise a
business or something run an Enterprise
through a pattern of unlawful acts
through unlawful means kind of like the
New York election statute influence an
election through unlawful means Rico
running an Enterprise through unlawful
means well when it comes to charging
conspiracy under Rico government has
often tried to say hey we don’t have to
convince a a unanimous jury of the
unlawful acts that the defendants uh
were conspiring to commit the jury
doesn’t have to be unanimous they can
four of them can think one crime four of
them can think another it’s fine but the
federal courts have said that’s not fine
the jury can disagree about the
underlying facts what the Supreme Court
calls brute facts but if the prosecutors
are alleging different crimes so the
prosecutors put before the jury the idea
or or evidence suggesting that
defendants conspired to run the
Enterprise through acts of murder or
acts of embezzlement or acts of robbery
federal courts say no no no you cannot
have non- unanimity there the jury has
to agree unanimously on the kind of
crime that was involved but here in the
Trump prosecution judge meran
specifically instructed the jury in this
conspiracy offense that a prosecution
could throw before the jury different
crimes that the conspiracy was directed
toward the tax crime the campaign
Finance offense or possibly violations
of New York’s business records
falsification statute and the jury did
not have to be unanimous when it came to
these different kinds of crimes so Trump
lawyers are going to point to these
Federal Rico cases and other case is
going to say no no no that was
unconstitutional that violated the
requirement of unanimous verdict okay we
kind of got into the weeds here but
Outro
those are going to be the arguments
they’re going to be made on appeal I
hope that this has at least clarified it
for you I will have more episodes
answering other questions about the uh
Trump verdict and feel free to keep
shooting me more questions if you like
you’ve asked me some great questions you
can ask me on YouTube you can ask me on
X I will do my best to answer them I
might even feature them in another
episode and I’m also going to be doing
episodes on major Supreme Court cases as
they come down this month so if that’s
of Interest I hope you’ll Tune In
Goodbye and thanks
Interesting. I watched the whole video.
Thanks for posting. I especially liked his style of explaining the different points of views and what the left’s lawyers are going to claim.
Excellent dissection of the case, thanks for sharing. 🙂👍
Bkmk
Bkmk
The fundamental issue that Trump has never been "charged" nor "convicted" of any of those "misdemeanors", nor was ANY evidence of those presented in this trial.
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