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Justice Merchan's gagged witness goes public with what he would have told the jury and it's a doozy

By Monica Showalter

After Michael Cohen's disastrous testimony, it would seem that the case against President Trump over the bookkeeping entry in a hush-money payment case would be in tatters as it goes to the jury. Many legal eagles have said as much.

But the politically partisan New York justice in this case, Juan Merchan, doesn't give up that fast and clearly wants to salvage the case. He's instructing the jury to ignore the detail about the 'underlying crime' and treat the case the same way a burglary case is treated.

According to Newsweek:

A hush-money payment is not illegal, and under New York law, falsifying business records is considered a misdemeanor unless it is done to conceal another crime, in which case it can be a felony.

Merchan said the prosecution did not need to prove that Trump committed additional crimes, like campaign finance or tax violations. Instead, it must show that Trump intended to commit or conceal these crimes.

"You must remember, the People are not required to prove these offenses beyond a reasonable doubt; therefore, that reduces the need or the burden to define every term and every phrase," Merchan said, per Vance's blog. Merchan made the comment while discussing whether the defense could call an expert in campaign finance law.

We'll get to the burglary analogy in a minute from the character named Vance, but the bottom line is, Merchan is trying to slant the jury the prosecutor's way, telling them not to bother about the little detail about what the underlying crime was that makes the hush money payment a jailtime felony. They can make it up, if they like.

That's what he's getting away with now -- he actually broke the law when he made campaign donations to Joe Biden, which is explicitly and clearly prohibited by New York law, but not a problem for him -- he knows that anything illegal he does gets a slap on the wrist, a 'caution' as the New York Times put it.

Except that the voice of the critical suppressed witness for President Trump's side has come out with the real law to make mincemeat of the judge's flawed instructions:

Judge Merchan has so restricted my testimony that defense has decided not to call me. Now, it’s elementary that the judge instructs the jury on the law, so I understand his reluctance. /1
— Brad Smith (@CommishSmith) May 20, 2024

The tweets are a doozy, he points out that his testimony would have clearly pointed out that there was no 'underlying crime' and the agency he once headed to regulate elections, the Federal Election Commission, never prosecuted such issues, because they simply weren't crimes.

This one stands out:

Picture a jury in a product liability case trying to figure out if a complex machine was negligently designed, based only on a boilerplate recitation of the general definition of “negligence.” They’d be lost without knowing technology & industry norms. /3

...and this...

/4 Someone has to bring that knowledge to the jury. That—not the law—was my intended testimony. For example, part of the state’s case is that they wrongly reported what they knew to be a campaign expenditure in order to hide the payment until after the election.

He was the guy to bring that kind of knowledge, as he stated here, but here's the guy who got that job instead:

/7 but While judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen!

Which he noted, shows just how rigged Justice Merchan's courtroom really is:

/9 So you’ve got a judge who contributed to Trump’s opponent presiding over a trial by a prosecutor who was elected on a vow to get Trump, for something DOJ and FEC chose not to prosecute, on a far-fetched legal theory I which the prosecution has been allowed …


/10… To repeatedly misstate the law or elicit incorrect statements of law from witnesses (and unlike Cohen’s, my testimony would not have gone to the ultimate legal issue). The judge’s bias is very evident.


As for the faulty instructions, the burglary analogy comes from this legal commentator cited by Newsweek:

On May 21, Joyce Vance, a former U.S. attorney for the Northern District of Alabama, wrote in her Civil Discourse blog about a comment Judge Juan Merchan made while discussing jury instructions. A judge gives such instructions to explain the laws a jury must use to decide a case.

...and...

"If I enter your home without permission, that's trespass, a misdemeanor. But, if I do it with the intent to commit another crime while I'm there, it's burglary, a felony. The false records violation works the same way," she wrote.

The underlying "crime" of course is trying to influence an election. Apparently no one is allowed to influence an election, and especially not a candidate.

The prosecutorial and judicial argument goes that since Trump did this payment and got elected, it was entirely because this hush money was paid and the election would have gone the other way if he had ignored then-lawyer Michael Cohen's bad advice to make it and instead didn't make it.

The laws against election influence by foreign actors are suddenly being called into service in this case because hiding one's dirty personal laundry while trying to get elected is unthinkable, a felony, as the prosecution argues, as if no pol had ever done such a thing in the past. Right, John Edwards? Right, Bill Clinton? Grover Cleveland was unavailable for comment.

What Smith demonstrates is just how valuable his testimony would have been to that jury about what the law is and how regulators enforce it, which instead has to take Michael Cohen's word for it that Trump, who didn't even know about the hush money paid according to another witness, somehow broke the law.

Sound like a fair trial we have here? Only in a banana republic.

https://www.americanthinker.com/blog/2024/05/justice_merchan_s_gagged_witness_goes_public_to_school_him_and_it_s_a_doozy.html