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Sky DancingGood Morning!!
Today Judge Juan Merchan will give instructions to the jury in the Trump hush money case and then they will begin deliberations. Some experts are predicting there will be a verdict today. I kind of doubt that, but what do know? A decision could certainly come this week.
At The New York Times, William K. Rashbaum and Jonah E. Bromwich write: Judge’s Instructions Will Be a Road Map for Jury Weighing Trump’s Fate.
Justice Merchan will describe the legal meaning of the word “intent” and the concept of the presumption of innocence. He will remind the jurors that they pledged to set any biases aside against the former president before they were sworn in, and that Mr. Trump’s decision not to testify cannot be held against him.
Then, according to a person with knowledge of the instructions that Justice Merchan plans to deliver, he will explain the 34 charges of falsifying business records that Mr. Trump faces. It will likely be the most important guidance that the judge offers during the trial. And it is no simple task.
Judge Merchan
In New York, falsifying records is a misdemeanor, unless the documents were faked to hide another crime. The other crime, prosecutors say, was Mr. Trump’s 2016 violation of state election law that prohibited conspiring to aid a political campaign using “unlawful means.”
Those means, prosecutors argue, could include any of a menu of other crimes. And so each individual false-records charge that Mr. Trump faces contains within it multiple possible crimes that jurors must strive to understand.
The moment that the jurors begin to deliberate will mark the first time that the complicated case will be assessed not by judges or a parade of commentators, but by everyday New Yorkers. The group may be aided by the two jurors who are also lawyers — though neither appears to have criminal experience, and one said during jury selection that he knew “virtually nothing about criminal law.”
Marc F. Scholl, who served nearly 40 years in the district attorney’s office, noted that jury instructions are often difficult to follow, particularly given that, in New York, jurors are barred from keeping a copy of the guidance as they deliberate. And he said that defendants are often charged with several different crimes, requiring even more elaborate instructions.
Still, Mr. Scholl said, one point of complexity stood out: “Usually you don’t have this layering of these other crimes,” he said.
Justice Merchan, according to the person with knowledge of his legal instructions, will proceed through each of the 34 charges count by count, explaining to jurors what each requires prosecutors to have proved.
The knotty legal instructions were the product of intense argument between the prosecution and the defense, culminating in a hearing last week in which each side sought to persuade the judge to make minor edits that could have had a major impact.
Read more details about those arguments at the NYT link.
People who have been covering the trial inside the courtroom, eg, Harry Litman, have expressed concerns about one juror who appears to be sympathetic to the defense. This is from Marc Caputo at The Bulwark: Trump Legal Team Pins Hopes on Hung Jury.
AS THE JURORS FILED into the Manhattan courtroom, day after day, almost none of them would look at Donald Trump. It’s one of those unsettling signs for defendants and their lawyers who worry about a guilty verdict.
Those worries have only grown in Trump’s orbit as allies have all but abandoned hope of acquittal. Even Trump, though he railed Monday on social media about the judge and the case, has privately sounded a note of resignation.
Trump sleeping in court
“Whatever happens happens,” Trump told one person recently. “I have no control.”
But there is one clear hope MAGAville clings to: a hung jury that results in a mistrial.
If that happens, Trump allies suspect that it will be chiefly due to the one juror who has made friendly eye contact with Trump from time to time as the jury enters the room and walks right past the defense table.
“There are eight people on that jury who definitely hate Trump. If there’s one person who doesn’t, it’s [this] juror,” said one court attendee who, like others for this story, relayed their observations on condition of anonymity to The Bulwark, which is also protecting the privacy and safety of the juror in question by not disclosing identifying details.
As the trial has progressed since April 15, these sources relate, this juror has appeared to nod along in seeming accordance with the defense at times. On other occasions, the juror has seemingly reacted favorably to and made eye contact with Trump’s congressional surrogates who began joining him in court in recent weeks.
I hope they’re mistaken. All we need it to have this end in a mistrial.
You might also be interested in this piece by Liz Dye at Public Notice. She provides an explanatory primer for people who haven’t followed the day-to-day action in the trial: What you need to know about Trump’s trial before the verdict.
From Charles R. Davis at Salon, a little schadenfreude: “Full panic mode”: Experts say Trump mad he’s “finally being treated like any other defendant.”
Donald Trump is not behaving like someone who expects to be found “not guilty.” In a series of posts over the Memorial Day weekend, the former president deviated from the norm of honoring soldiers who fought and died for the United States by instead posting on his website, Truth Social, about how unfair it is that standard courtroom procedures are not being bent in his favor.
Posting in all caps, Trump – facing 34 felony counts of falsifying business records to cover up a hush payment to an adult film star – on Monday raged against the order in which closing arguments will be made in his Manhattan trial. It is a “big advantage,” he said, and “very unfair” that the prosecution gets to go second. “Why can’t the defense go last?”
Whether he knows this and is just riling up gullible followers or if he simply never retained the information his defense counsel could surely provide, Politico’s Kyle Cheney noted that Trump is here complaining about a fact of life “in virtually every criminal court.” Per Cheney, “Prosecutors typically get a rebuttal during closings because [the] burden or proof lies with them, not [the] defense.”
Trump prosecutor Joshua Steinglass gives final arguments
Trump, then, is complaining about an order that exists because of the far higher standard that prosecutors must meet. The defense only needs to sow doubt about the government’s case, and it really only needs one juror to entertain the former president’s argument that the case is a “witch hunt”; the prosecution must show that its case is not just probable, but prove it beyond a reasonable doubt.
“Trump is finally being treated like every other defendant,” said Joyce Vance, a former U.S. attorney who has been following his hush money trial. “[R]eally,” she argued, “that’s what he objects to.”
In another weekend rant about the case, Trump again opined that it was wrong to bring a case against him while he’s running for president. If there was evidence of a crime, he wrote, referring to himself in the third person, “it should have been brought seven years ago, not in the middle of his Campaign for President.” [….]
Since Trump is no longer president, and can no longer pick those charged with enforcing the law, he is now just another man who must stand before and be judged by it. For a man who has long enjoyed impunity, it is intolerable. And while he may be able to evade financial penalties, at least for a time, in this case his actual liberty is at stake: it is not inconceivable that, when closing arguments conclude this week, jurors return a guilty verdict and Judge Juan Merchan decides that this particular defendant deserves some time behind bars.
George Conway, a conservative attorney turned harsh critic of the former president, believes Trump is reacting to his loss of control. “The defendant,” he posted on Threads, “is clearly in full panic mode.”
A couple of articles about the stalled Mar-a-Lago stolen documents case:
David Kurtz at Talking Points Memo: Aileen Cannon Threatens To Sanction MAL Prosecutors.
In the up-is-down world of the Mar-a-Lago classified documents case, prosecutors attempted to stanch Donald Trump’s vitriolic attacks on federal law enforcement – the kind of thing criminal defendants would not typically be allowed to engage in while on pre-trial release – and wound up themselves threatened with sanctions by the judge.
As Morning Memo recounted yesterday, the move by prosecutors to modify the terms of Trump’s pre-trial release came late Friday before the Memorial Day weekend and prompted a heated response from Trump.
U.S. District Judge Aileen Cannon weighed in Monday, denying the prosecution motion, chastising them for playing loose with the local court rules, and threatening to impose sanctions on them in the future. On small bright spot, if you can call it that, is that she didn’t accede to Trump’s request to sanction the prosecution team immediately. Cannon’s denial was without prejudice, meaning prosecutors can refile their motion:
Cannon insisted that prosecutors had not sufficiently conferred with the defense team before filing and ordered that all future filings contain a statement of no more than 200 words by the opposing side of its position.
In a normal case, I’d applaud a judge keeping a tight leash on the prosecution team. But we’re in such uncharted territory here that you can’t attribute this to i-dotting or t-crossing by Cannon. Given any chance to chide the prosecution, she takes it. Given deplorable behavior by Trump that would normally never fly, she finds herself mute again and again.
The judge’s routine has become so predictable that even the analysis by legal observers bakes in a certain Cannon quotient: Anything that DOJ does that even arguably deviates from the rules leaves an opening that Cannon will take. So DOJ ends up graded on a weird Cannon curve while the Trump’s dangerous and unprecedented conduct gets set to the side.
One pattern emerging with Cannon is that when prosecutors implore her to assert herself and take more control over the case like so many judges do, she retreats to treating everything as an adversarial contest that she merely referees. But when it’s a matter of importance to Trump, she regularly asserts herself, going so far as to raise issues on her own. It’s another way in her handling of the case is imbalanced to Trump’s advantage.
At The New York Times, Alan Feuer has an piece about Judge Cannon: Emerging Portrait of Judge in Trump Documents Case: Prepared, Prickly and Slow.
…[A]t seven public hearings over more than 10 months, Judge Cannon has left an increasingly detailed record of her decision-making skills and judicial temperament.
The portrait that has emerged so far is that of an industrious but inexperienced and often insecure judge whose reluctance to rule decisively even on minor matters has permitted one of the country’s most important criminal cases to become bogged down in a logjam of unresolved issues.
She rarely issues rulings that explain her thinking in a way that might reveal her legal influences or any guiding philosophy. And that has made the hearings, which have taken place in Federal District Court in Fort Pierce, Fla., all the more important in assessing her management of the case.
Aileen Cannon in court in stolen documents case
Regardless of her motives, Judge Cannon has effectively imperiled the future of a criminal prosecution that once seemed the most straightforward of the four Mr. Trump is facing.
She has largely accomplished this by granting a serious hearing to almost every issue — no matter how far-fetched — that Mr. Trump’s lawyers have raised, playing directly into the former president’s strategy of delaying the case from reaching trial.
It appears increasingly likely that the documents case will not go to a jury before Election Day, and that the only trial that Mr. Trump will face this year will be the one now ending in Manhattan, where jurors are expected to begin deliberating on Wednesday over whether he falsified business records in connection with hush money payments to a porn star.
Still, the next few weeks will bring Judge Cannon’s handling of the case in Florida into even sharper focus.
She may soon rule on a request by Jack Smith, the special counsel overseeing the two federal prosecutions of the former president, to bar Mr. Trump from making public statements that could endanger federal agents working on the documents case. That move, which the judge denied this week on procedural grounds, came in response to the former president’s baseless assertion that the F.B.I. was authorized to use deadly force against him during the search two years ago of Mar-a-Lago, his private club and residence in Florida.
After a hearing in June, Judge Cannon will also have to make a significant decision on whether to give Mr. Trump’s lawyers access to communications between Mr. Smith’s team and top national security officials. The lawyers made that request hoping to bolster their contention that the so-called deep state colluded with the Biden administration to bring the charges.
Read the rest at the NYT.
Yesterday, New York Times reporter Jodi Kantor had another update on the strange story of the Alitos and their protest flags: The Alitos, the Neighborhood Clash and the Upside-Down Flag.
The police in Fairfax County, Va., received an unusual phone call on Feb. 15, 2021. A young couple claimed they were being harassed by the wife of a Supreme Court justice.
“Somebody in a position of authority needs to talk to her and make her stop,” said the 36-year-old man making the complaint, according to a recording of the call reviewed by The New York Times. The officer on the line responded that there was little the police could do: Yelling was not a crime.
The couple placed the call after a series of encounters with Martha-Ann Alito, wife of Justice Samuel A. Alito Jr., that had gone from uneasy to ugly. That day, Emily Baden, whose boyfriend (now husband) contacted the police, had traded accusations with Mrs. Alito, who lived down the street. In a recent interview, Ms. Baden admitted to calling her a lewd epithet.
The clash between the wife of a conservative Supreme Court justice and the couple, who were in their 30s, liberal and proud of it, played out over months on a bucolic block in Alexandria. It was the kind of shouting match among private citizens, at the height of tensions over the 2020 election, that might have happened in any mixed political community in America. But three years later, that neighborhood spat — which both sides said began over an anti-Trump sign — has taken on far greater proportions.
Interview with Ms. Baden:
Amid the controversy, Ms. Baden said she was surprised to find herself playing a central role in Justice Alito’s account about a war of words, political signsand a flag. “I never saw the upside-down flag, never heard about it,” she said.
The Alitos
To better understand the clash, The Times interviewed Ms. Baden, her mother and her husband, as well as other neighbors, and reviewed the texts that Ms. Baden and her husband sent to friends after the episodes. Justice Alito, who did not respond to questions for this article,has in recent weeks given his own explanation of what happened.
There are some differences: For instance, the justice told Fox News that his wife hoisted the flag in response to Ms. Baden’s vulgar insult. A text message and the police call — corroborated by Fairfax County authorities — indicate, however, that the name-calling took place on Feb. 15, weeks after the inverted flag was taken down….
The justice later elaborated in an interview with Fox News, saying that in January 2021 a neighbor on the block displayed a vulgar anti-Trump sign, near where children wait for the school bus. Mrs. Alito complained to the neighbor. “Things escalated and the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks,” tweeted the Fox News reporter who interviewed the justice.
While the Alitos were on a neighborhood walk, “there were words between Mrs. Alito and a male at the home with the sign,” the network reported. The justice said the man used “vulgar language, ‘including the C-word,’” After that exchange, “Mrs. Alito was distraught and hung the flag upside-down,” the Fox reporter relayed.
But in the Baden family’s version, the justice’s wife initiated the conflict. “Aside from putting up a sign, we did not begin or instigate any of these confrontations,” Ms. Baden said later.
During the Covid crisis, Baden moved in with Baden’s mother Barbara, who lives in the Alito’s neighborhood. Her boyfriend, who grew up in the area also moved back home.
The couple participated in Black Lives Matter protests in Washington, propped up Biden-Harris signs, and on the Saturday in November when the election was called, whooped and danced in the streets of the nation’s capital. When they got home, they displayed a political sign they had made from torn-up Amazon boxes, saying “BYE DON” on one side and “Fuck Trump” on the other….
Shortly after Christmas, as Emily Baden was with her dog in her front yard, an older woman approached and thanked her for taking down the sign, which had merely blown down. Ms. Baden realized that the woman was Martha-Ann Alito. The sign was offensive, Mrs. Alito said, according to both the justice’s account and a text message from Ms. Baden to her boyfriend.
Martha-Ann Alito and Emily Baden
Ms. Baden told her the sign would stay up, she recalled in the interview. The family was taken aback: Though the Badens and the Alitos lived just a short distance apart, Barbara Baden couldn’t recall ever communicating with the justice’s wife beyond a neighborly wave. In the interview, Emily Baden could not remember whether she put the signs up again.
Then came Jan. 6. Rocked by the violence and threat to democracy, the couple soon put up new signs in their yard, saying “Trump Is a Fascist” and “You Are Complicit.” Emily Baden said in interviews that the second sign was not directed at the Alitos, but at Republicans generally, especially those who weren’t condemning the Capitol attack.
Soon afterward, her mother took them down, out of safety concerns. “Look what these people can do,” she said in an interview, recalling her fears at the time about the mob that had stormed the Capitol. “I do not want to mark my house.”
It’s not clear whether Mrs. Alito saw those signs, but the day after the Capitol riot, as the couple parked in front of their home, she pulled up in her car, they said. She lingered there, glaring, for a long moment, recalled the couple, who texted their friends about the encounter.
In another incident, the young couple drove by the Alito’s house.
Mrs. Alito happened to be standing outside. According to interviews with Ms. Baden and her husband, as well as messages they sent to friends at the time, Mrs. Alito ran toward their car and yelled something they did not understand. The couple continued driving, they said, and as they passed the Alito home again to exit the cul-de-sac, Mrs. Alito appeared to spit toward the vehicle.
The couple, still shaken by the Capitol riot, said the encounter left them feeling uneasy and outmatched by the wife of someone so powerful.
Mrs. Alito seems a bit unhinged.
One more from Josh Dawsey at The Washington Post: Trump makes sweeping promises to donors on audacious fundraising tour.
When Donald Trump met some of the country’s top donors at a luxurious New York hotel earlier this month, he told the group that a businessman had recently offered $1 million to his presidential effort and wanted to have lunch.
“I’m not having lunch,” Trump said he responded, according to donors who attended. “You’ve got to make it $25 million.”
Another businessman, he said, had traditionally given $2 million to $3 million to Republicans. Instead, he said he told the donor that he wanted a $25 million or $50 million contribution or he would not be “very happy.”
As he closed his pitch at the Pierre Hotel, Trump explained to the group why it was in their interest to cut large checks. If he was not put back in office, taxes would go up for them under President Biden, who vows to let Trump-era tax cuts on the wealthy and corporations expire at the end of 2025.
“The tax cuts all expire for wealthy and poor and middle-income and everything else, but they expire in another seven months and he’s not going to renew them, which means taxes are going to go up by four times,” Trump said, exaggerating the size of the cuts. “You’re going to have the biggest tax increase in history.”
Seconds after promising the tax cuts, Trump made his pitch explicit. “So whatever you guys can do, I appreciate it,” he said.
The remarks are just one example of a series of audacious requests by Trump for big-money contributions in recent months, according to 11 donors, advisers and others close to the former president, who spoke on the condition of anonymity to describe his fundraising. The pleas for millions in donations come as the presumptive Republican nominee seeks to close a cash gap with Biden and to pay for costly legal bills in his four criminal indictments.
Trump is completely corrupt. So what else is new? Read the whole thing at the WaPo.
That’s it for me today. I hope I’ve given you something worth reading while we wait for the verdict.
https://skydancingblog.com/2024/05/29/wednesday-reads-59/
#EmilyBaden #hungJury #JudgeAileenCannon #JudgeJuanMerchan #JudgeSamuelAlito #MarALagoDocumentsCase #MarthaAnnAlito #TrumpCorruption #TrumpHushMoneyCase
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