If there’s one legal analyst I can tolerate on CNN, it’s Elie Honig. Honig is a former assistant US Attorney and the network's senior legal analyst who has given nuanced and fair takes on the legal drama surrounding Donald Trump and Joe Biden. He’s not a conservative or a Trump fan, but I’d take a sensible analysis of the lawfare we’ve seen against Trump over whatever the hell Norm Eisen was spewing last night:
Norm Eisen, former Obama official & architect behind the lawfare cases against Trump, can barely contain his excitement at the prospects of Trump going to prison
— johnny maga (@_johnnymaga) May 31, 2024
“Imprisonment is routinely imposed. This is the most serious falsifying business records case in history”
Says Trump… pic.twitter.com/VqG5rrW9db
The funny part about Eisen is his enjoyment of the prospect of jailing Donald Trump. As Honig and others noted, that’s unlikely to happen. Second, Eisen got everything wrong about this verdict and its implications. In a lengthy piece in New York Magazine’s Intelligencer, Honig offered his take on the matter, plating it as such: it’s possible that the jury did its job and the legalese used to charge and convict Trump was an unmitigated disaster.
Both sides can have their issues with that conclusion. It’s hard to argue that the jury did its job when the verdict was already baked into the cake when this legal circus began. On the other hand, for the raving anti-Trump wing, Honig doing a line-by-line takedown of what motivated the prosecution might ruffle some feathers. It could outright infuriate the Left since Honig is confident of two things: Trump won’t go to jail over these charges, and he has a good chance of having the verdict reversed on appeal. Honig, for all his praise of the jury’s duty being a former prosecutor, torched Bragg’s team for essentially making up charges to convict Trump. He doesn’t outright say it, but the lengths at which they defined the crimes Trump was convicted of is suspect (via NY Mag/Intelligencer):
Both of these things can be true at once: The jury did its job, and this case was an ill-conceived, unjustified mess. Sure, victory is the great deodorant, but a guilty verdict doesn’t make it all pure and right. Plenty of prosecutors have won plenty of convictions in cases that shouldn’t have been brought in the first place. “But they won” is no defense to a strained, convoluted reach unless the goal is to “win,” now, by any means necessary and worry about the credibility of the case and the fallout later.
The following are all undeniable facts.
The judge donated money — a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind — to a pro-Biden, anti-Trump political operation, including funds that the judge earmarked for “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to “Re-elect Donald Trump, MAGA forever!”? Absolutely not.
District Attorney Alvin Bragg ran for office in an overwhelmingly Democratic county by touting his Trump-hunting prowess. He bizarrely (and falsely) boasted on the campaign trail, “It is a fact that I have sued Trump over 100 times.” (Disclosure: Both Bragg and Trump’s lead counsel, Todd Blanche, are friends and former colleagues of mine at the Southern District of New York.)
Most importantly, the DA’s charges against Trump push the outer boundaries of the law and due process. That’s not on the jury. That’s on the prosecutors who chose to bring the case and the judge who let it play out as it did.
The district attorney’s press office and its flaks often proclaim that falsification of business records charges are “commonplace” and, indeed, the office’s “bread and butter.” That’s true only if you draw definitional lines so broad as to render them meaningless. Of course the DA charges falsification quite frequently; virtually any fraud case involves some sort of fake documentation.
But when you impose meaningful search parameters, the truth emerges: The charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.
Standing alone, falsification charges would have been mere misdemeanors under New York law, which posed two problems for the DA. First, nobody cares about a misdemeanor, and it would be laughable to bring the first-ever charge against a former president for a trifling offense that falls within the same technical criminal classification as shoplifting a Snapple and a bag of Cheetos from a bodega. Second, the statute of limitations on a misdemeanor — two years — likely has long expired on Trump’s conduct, which dates to 2016 and 2017.
So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) — and to electroshock them back to life within the longer felony statute of limitations — the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York State election-law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments.
Honig found the controversy over defining “another crime,” which stemmed from this case's campaign finance angle, inexcusable.
“So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial,” he wrote.
He also touched upon what Bragg’s team called this trial—the “zombie case…because of various legal infirmities, including its bizarre charging mechanism.”
“It’s better characterized as the Frankenstein Case,” wrote Honig, “cobbled together with ill-fitting parts into an ugly, awkward, but more-or-less functioning contraption that just might ultimately turn on its creator.”
It’s CNN. We’re not going to get hard-core MAGA takes on this stuff, but I think Mr. Honig did a good job, albeit unintentionally, showing how Bragg veered outside constitutional norms to convict Trump on charges based on fairy tale law.
What Trump has been convicted of, the class of felony, is no worse than shoplifting a Snapple from CVS, as Honig put it. So, everyone, and by that, I mean leftists, relax. Trump is still not going to jail in the foreseeable future, and this event could have given the former president a huge boost since most saw this trial as a sham.
The FBI raid on Mar-a-Lago secured the former president the Republican nomination before the first GOP ballot was counted. Could the Bragg verdict help Trump clinch the presidency? It could.
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