Straight Down the Middle — The Trump Verdict —Ep. 1
Summary
TLDRThe video script discusses the Trump hush money case, highlighting the constitutional issues surrounding the verdict. Law professor Jed Rubenfeld explains that Trump can still run for office despite the conviction and raises concerns about selective prosecution, the indictment's lack of specificity on the underlying crime, and the jury's non-unanimous decision on the election law violation. He suggests Trump's lawyers may appeal these constitutional questions and even seek a federal restraining order to halt the judgment of guilt until these issues are resolved.
Takeaways
- 🏆 Trump has been found guilty in the hush money case, but this does not prevent him from running for office or being elected president.
- 📖 The case revolves around a two-step crime: falsification of business records to conceal a second, unspecified crime related to campaign expenses.
- 🤔 The nature of the second crime is ambiguous, with the prosecution suggesting it could be a New York tax violation, a federal campaign finance violation, or a New York election law violation.
- 🎯 The indictment did not specify the underlying offense, which raises constitutional questions about the right to know the charges against a defendant under the Sixth Amendment.
- 🔍 There is debate over whether the prosecution is an instance of selective prosecution, which would be unconstitutional if proven to be motivated by political bias.
- 🤝 The jury was not required to be unanimous about the specific violation that constituted the second crime, which may conflict with constitutional requirements for a unanimous jury.
- 📚 Jed Rubenfeld, a law professor, suggests that there are serious constitutional issues with the case, including potential violations of the Sixth Amendment and the right to a fair trial.
- 📉 The case could have implications for the next presidential election, as polls indicate that a conviction might influence voters' decisions, potentially affecting the election's outcome.
- 📈 Trump's lawyers might consider suing in federal court for a temporary restraining order to halt the entry of a judgment of guilt until constitutional issues are resolved.
- 📝 The sentencing is scheduled for July 11th, and it is uncertain what the outcome will be, with the judge having discretion over the sentence, including the possibility of incarceration.
- 🚨 If the conviction is found to be unconstitutional after the appeal, the impact on the election could be irreparable, emphasizing the urgency and importance of resolving constitutional questions promptly.
Q & A
What is the significance of the Trump hush money case verdict according to the speaker?
-The speaker emphasizes that the Trump hush money case is momentous and has serious constitutional implications, especially concerning the potential for a former or running president to become a target for criminal prosecution.
Can a former president or a presidential candidate be prevented from running for office due to criminal prosecution?
-No, according to the speaker, states cannot decertify a candidate or remove them from the ballot based on criminal prosecution, including if the individual is found guilty of a felony.
What is the historical precedent for a presidential candidate running from jail?
-The speaker mentions Eugene Debs, who ran for president from a federal penitentiary in 1920 and received almost a million votes, demonstrating that running for president from jail is possible.
What was Trump charged with in the hush money case?
-Trump was charged with a two-step crime: falsification of business records to conceal a second crime, which the speaker suggests was likely a New York election law violation.
Why is the second crime in Trump's charges considered 'tricky'?
-The second crime is tricky because the indictment did not specify what the second crime was, leading to uncertainty about what exactly the jury found Trump guilty of.
What constitutional issues are raised by the speaker regarding the Trump case?
-The speaker raises issues of selective prosecution, the Sixth Amendment right to know the charges, and the potential for an unconstitutional non-unanimous verdict.
What is the argument against the indictment being constitutional due to the lack of specification of the second crime?
-The argument is based on the Second Circuit case law that requires an indictment to identify the underlying offense when a crime depends on the violation of another statute, which the speaker suggests was not done in Trump's indictment.
Why might the speaker's suggested federal lawsuit be significant for Trump's case?
-The suggested federal lawsuit could be significant because it could lead to a temporary restraining order preventing the entry of a judgment of guilt until federal courts, possibly even the Supreme Court, can review the constitutionality of the prosecution.
What is the potential 'irreparable harm' mentioned by the speaker in relation to the election?
-The irreparable harm refers to the possibility that an unlawful or unconstitutional conviction could affect the outcome of the next presidential election, and even if reversed on appeal later, the effect on the election could not be undone.
What is the speaker's proposed action for Trump's lawyers in response to the verdict?
-The speaker suggests that Trump's lawyers should file an action in federal court under Section 1983, asking for a temporary emergency restraining order to halt the entry of a judgment of guilt until the constitutionality of the case can be reviewed.
Outlines
⚖️ Overview of Trump's Guilty Verdict
The video begins by introducing the significance of Trump's guilty verdict in the hush money case. It highlights the constitutional implications and the dangers of prosecuting a former president. Jed Rubenfeld, a law professor at Yale, explains that while Trump can still run for office, the case's complexity lies in its constitutional challenges. He mentions the two-step nature of the crime involving falsification of business records to conceal another crime.
❓ The Second Crime in Question
This paragraph delves into the uncertainties surrounding the second crime Trump allegedly concealed. The state did not specify the second crime in the indictment, leaving multiple theories open, including tax violations, campaign finance violations, and election law violations. The jury's decision was based on the New York election law violation, but the exact nature of the concealed crime remains unclear.
📝 Constitutional Issues with the Indictment
Rubenfeld discusses the constitutional requirement for an indictment to specify the underlying offense in cases involving multiple crimes. He references a federal case to illustrate this point, arguing that the lack of specificity in Trump's indictment could violate the Sixth Amendment. Despite attempts to clarify through additional documents, the exact second crime remains unspecified, raising constitutional concerns.
⚖️ Unanimity and the Jury's Decision
The video addresses the constitutional requirement for a unanimous jury decision in felony prosecutions. Rubenfeld explains that the jury in Trump's case was not required to be unanimous about the specific underlying crime, potentially violating constitutional principles. He outlines the complexities of this issue and the implications for the case's validity.
🚨 Next Steps and Potential Legal Actions
Rubenfeld outlines the possible next steps for Trump's legal team, including seeking a temporary restraining order in federal court to prevent the entry of a judgment of guilt. He emphasizes the importance of federal review of the constitutional issues before the election to avoid irreparable harm. The video concludes with a call for a conclusive ruling on the case's constitutionality.
Mindmap
Keywords
💡Hush money
💡Verdict
💡Constitutional law
💡Falsification of business records
💡Campaign expenses
💡Selective prosecution
💡Sixth Amendment
💡Unanimous jury
💡Indictment
💡Appeal
💡Irreparable harm
Highlights
Trump has been found guilty in the hush money case.
It's crucial that criminal prosecutions are done lawfully and constitutionally, especially for high-profile individuals.
Trump can still run for president despite this conviction, and states cannot disqualify him from the ballot.
In 1920, Eugene Debs ran for president from a jail cell and received almost a million votes.
The core of the case involves falsification of business records related to hush money payments.
The indictment did not specify the second crime Trump was allegedly trying to conceal, creating legal ambiguity.
The case's complexity lies in whether the payments were considered legal expenses or campaign expenses.
Constitutional issues include selective prosecution and the requirement to inform the defendant of the charges.
The prosecution's shifting theories about the second crime further complicate the case.
The requirement for a unanimous jury verdict is a key constitutional issue in this case.
Potential sentencing includes a maximum of 136 years, but the actual outcome is uncertain.
The appeal process could take years, potentially impacting the upcoming presidential election.
Trump's legal team might seek an emergency temporary restraining order in federal court to halt the judgment of guilt.
The case's outcome could set a dangerous precedent for political prosecutions in the United States.
A federal court review of the prosecution's constitutionality might be necessary before the election.
Transcripts
the Trump hush money case so the jury
verdict is in Trump's been found guilty
look this is a momentous case
everybody's talking about it most people
don't fully understand it but here's
something we all know it's a dangerous
president nobody wants it to be the rule
in America that if you're a former
president or if you're running for
president you become a target for
criminal prosecution it is hugely
important that if there is a criminal
prosecution it be done lawfully and
constitutionally I'm Jed rubenfeld I'm a
law professor at yel law school I write
and teach and litigate about
constitutional law and I'm going to tell
you that there are some serious
constitutional problems with this case
but I'm going to lay it out for you
without any partisan bias I hope and I'm
going to take you through it also I'm
going to tell you what I would do if I
was Trump's lawyers right now cuz I have
some ideas about what they might do that
you might not have heard before but I'll
get to that at the end let's get the
simple stuff out of the way first can
Trump still run for office yes he can
could States desertify him could they
take him off the ballot because of this
prosecution no they cannot that's
straight up unconstitutional if you're
found guilty even of a felony you can
still run for president and States
cannot try to take you off their ballot
could Trump run for president if he's in
jail yes he could back in 1920 a guy
named Eugene Debs ran for president from
the jail cell of a federal penitentiary
he got almost a million votes about 3%
of the vote so it can be done okay
that's actually the easiest stuff here
to answer now let's turn to a harder
question what exactly was Trump just
found guilty of now normally in a
criminal case that would not be a tricky
question the defendant was found guilty
of robbing some Bank on some particular
day and if he's found guilty he's found
guilty and you know what he's found
guilty of that is not quite the case
here it's not anywhere near so simple so
was Trump charged with unlawfully having
an affair no because that's not unlawful
well was he charged with hushing it up
was he charged with paying money to keep
that quiet no because that's not
unlawful whatever you might think about
it paying hush money
to keep quiet allegations of an affair
or something else there's nothing
criminal there's nothing unlawful about
that so what what was he charged with he
was charged with a two-step crime
there's two pieces of it step one
falsification of business records
falsification of what business records
it starts back in 2016 when Trump's
lawyer Michael Cohen pays
$130,000 to stormmy Daniels to keep her
quiet to get her to sign an NDA saying
she won't publish her allegations about
having had an affair with former
president Trump he was not then former
president but with Donald Trump Cohen
pays her that $130,000 now skipped to
2017 Trump is President and he starts
reimbursing Cohen for the payment that
Cohen made to Daniels and he spreads
that uh reimbursement payment together
with other uh money that he paid to
Cohen he spreads that over 12 months and
that generates business records checks
bookkeeping entries and those checks and
bookkeeping entries they say that the
payments are going toward legal expenses
now believe it or not the whole case in
the starting phases depends on this is
there something false about saying that
those payments were for legal expenses
the prosecution says yes those are false
statements why because because the
payments were hush money payments and
more specifically they were campaign
expenses expenses made to to further his
campaign
they weren't legal expenses they were
hush money campaign expenses the other
side Trump's people they say what are
you talking about those are payments
made to Trump's lawyer for services he
performed as a lawyer so those are legal
expenses believe it or not you got to
answer that first question if you think
those were legal expenses then there was
no false business record and Trump
should not have been convicted but lots
of people believe as the prosecution
said that no those were hush money
campaign expenses not legal expenses so
they were false okay that's step one
because Trump was not charged only with
falsification of a business record he
was charged with falsifying a business
record to conceal a second crime that
he'd already committed that's how the
charges become felony charges and if
you're wondering it's because he spaced
out the payments over 12 months
generating like three business records
each time almost three you get to 34
counts of false business records you may
have read There are 34 counts that's the
34 counts but then the question is what
second crime is the state saying that he
was trying to conceal through these
allegedly false business records so it's
a two-step crime falsifying business
records in order to conceal a second
crime that he'd already committed so
what was a second crime well that's
where things get tricky because the
indictment didn't say the indictment
said that he' falsified business records
to conceal a second crime but it never
said what the second crime was and to
this day a lot of people are unsure what
the jury thought because what the state
did was it did not commit itself to what
the second crime might be in its papers
before trial the state said look we got
we got a bunch of different theories and
we got at least three theories one
theory was the second crime was a a New
York tax violation one theory was the
second crime was a federal campaign
Finance violation one theory was it was
a New York election law violation and
and here's where things get even
trickier because the New York election
law violation is itself a two-step crime
it's the crime under New York law of
trying to influence an election through
unlawful means that is through violating
some other statute committing some other
offense and what happened was the state
never committed itself to which of those
crimes it was going to try to allege
that Trump was concealing through these
uh business records and that went up
right to the day of the first day of the
trial but during the trial the
prosecution kind of narrowed it down to
one of those uh uh three crimes and the
one it chose was the New York election
law violation but there the problem was
that as I just said that was another
two-step crime where they had to come in
and and show that he uh was trying to
influence an election through the
violation of some other statute and they
never said exactly which other statute
that was going to be and two to this day
we do not know what the jury was
thinking when it convicted him you can
ask a jury for a special verdict and
make the jury say exactly what offense
the jury believes the defendant to have
committed but the judge did not order a
special verdict in this case the judge
ordered what's called a general verdict
and on top of that the judge told the
jury you know when it comes to that
election law offense with its second
crime you don't have to be unanimous
about that two of you could think that
Trump was trying to influence an
election through a tax violation two of
you could think that Trump was trying to
influence an election by falsifying
other records and a bunch of other
people on the jury could think there was
some other violation and the judge said
you don't have to be unanimous about
that is that constitutional can he do
that I'll be turning to that in the next
part of this this show but for now you
understand the basics the jury convicted
him or found him guilty of falsifying a
business record to conceal a second
crime crime that he committed and we
think although you can't be totally sure
that that second crime was a New York
election law violation which itself
required the showing of another legal
violation and we don't know what that
violation was okay part two the
Constitutional issues a lot of lawyers
say that this whole prosecution was
unconstitutional what are their
arguments and do those arguments have
any Merit well the first thing a lot of
people say is you know what this
prosecution would never been brought if
it hadn't been against Donald Trump we
think that Alvin Bragg the district
attorney we think that that he brought
this case because he's pursuing a
vendetta against Trump hates his
policies doesn't want him to be
president the whole point of the
prosecution people say is to undermine
Trump's chances of being president well
if that's true does that make the
prosecution unconstitutional answer yes
it would that's called in legal terms
selective prosecution the state cannot
come after you with a Criminal
prosecution because of hostility toward
or in retaliation against your political
activity that's unconstitutional and if
they're doing that the whole prosecution
is unconstitutional little problem here
though is that's very difficult to prove
that gets into the motives inside the
head of the prosecutor very tough to
prove in fact some courts have held the
only way you can prove it is by coming
up with a comparable case a comparator a
comparable case of somebody else that
the district attorney could have
prosecuted uh on very similar facts but
didn't prosecute because uh the district
attorney liked their politics but didn't
like Trump's politics very hard to come
up with a set of comparable facts like
that believe it or not there might be a
comparator here there might be a very
similar comparable set of facts
involving Hillary Clinton but that's
going to get into too much factual
detail that I don't have time for on
today's show maybe in another show I'll
talk more about that so constitutional
issue number one select is selective
prosecution a lot of people think this
was an instance of selective prosecution
and there is some pretty good reason to
believe it but difficult to prove now
let's turn to issue two the indictment I
told you before the indictment charged
Trump with a two-step crime falsifying
business records to conceal a second
crime but never said what that second
crime was is is that constitutional well
under the United States Constitution
under the Sixth Amendment every criminal
defendant has a right to know the
charges against him so how does that
principle work in this kind of case and
I'll answer it by quoting from a federal
case the court was the United States
court of appeals for the second circuit
and here's what the second circuit said
where an indictment charges a crime that
depends in turn on violation of another
statute the indictment must identify the
underlying offense that sounds kind of
relevant doesn't it I'm going to repeat
it to you where an indictment charges a
crime that depends in turn on violation
of another statute the indictment must
identify the underlying offense well
that's exactly what this indictment did
charged a crime that depended in turn on
the violation of another statute but it
didn't specify or identify the
underlying offense now there's a very
good argument that that indictment was
in violation of federal constit
constitutional law under this second
circuit case and many other cases that
are like it by the way if you want to
look it up at home that case was called
United States versus Puro p i r r o 212
F3 86 I think decided by the second
circuit in 2000 okay so let's say that
this was a defective indictment under
the Sixth Amendment of the United States
Constitution is that the end of the
story does that knock out the whole case
well maybe not because in the
information the state can provide other
details about the crime and can fill in
gaps or cure and this attorney Bragg he
did file an information on the very day
the indictment was unsealed or made
public but the information also didn't
say what the second crime was so you got
the indictment that doesn't say and then
you got the information that doesn't say
well is that the end of the matter so
now do we have a violation of the sixth
amendment and the whole case is out the
window well maybe not quite because the
defendant are permitted to ask for
another document this document is called
a bill of
particulars and in that document the
state once again can provide more detail
and in this case the Trump team did ask
for a bill of particulars and they
specifically asked you got to tell us
what the second crime is specify what
the second crime is but the state
attorney Bragg arguing for the state he
said no we don't have to tell you we're
not going to give you a bill of
particulars under New York law we don't
have to tell you what the second crime
was we don't have to uh specify the
second crime New York law allows us to
prove that a trial we've got a bunch of
different theories what the second crime
might be and judge meron upheld that
view he held that the state does not
have to tell what the second crime was
and uh that it's okay for the state to
have at least three different theories
of what that second crime might be and
and they can go forward with any of them
at the trial so right up to the day of
the trial the Trump team did not know
what the second crime was going to be as
the trial progressed it became clear
that the state had honed in on that New
York election law offense but remember
that was itself a a two-step crime
trying to influence an election through
unlawful means by violating some other
statute and once again there were a
bunch of different theories about uh
what that second or this case third
offense might have been and uh judge
meron said that's okay State can have a
bunch of different theories of what that
uh further statutory violation was and
the jury can pick and choose among them
well is that constitutional I think
there's a very serious question about
whether that was all constitutional
because you see the sixth amendment
requirement that uh the defendant be
informed of the charges against him
that's not a mere technicality it's
actually like the fundamental principle
of constitutional criminal procedure if
you're charged with a crime if you're
being prosecuted by uh the government
you have a right to know what it is
they're charging you with because we're
not supposed to have a legal system like
France kafka's legal system in the trial
where the protagonist is put through a
trial and found guilty and never told
what it is he's been charged with it's a
very serious matter to not tell the
defendant exactly what charges he's up
against and that's why the second
circuit held what it did in that Puro
case because the defendant has a right
to know to prepare his defense to know
what the uh crimes that the state is
going to put before the jury might be so
he can call the right Witnesses be ready
to defend himself and because it was
because the state was playing hide the
ball on this and and changing its
theories and keeping its theories open
right through the the whole trial I
think there's a very serious potential
uh Sixth Amendment violation that
happened in this case now let me move on
to the unanimity issue so remember what
judge meron does is he tells the jury
okay to find a violation of this New
York election law offense you got to
find that Trump was trying to influence
an election namely his own election
through unlawful meemes through
violating another statute but you don't
have to be unanimous about what the
other statutory violation was is that
unconstitutional well the Constitution
does require a unanimous jury and that
requirement that applies in state
prosecutions as well as Federal
prosecutions that's only been true for a
few years by the way it's only a few
years ago that the Supreme Court said
that that unanimity requirement applies
to state prosecutions but it does to
State felony prosecutions and that's
what this was and so does judge M's
instruction to the jury about non-
unanimity does it violate that principle
well it might but this is kind of
complicated too complicated for me to go
into here there is a case to be made
that that's an unconstitutional jury
instruction that the constitution
requires unanimity on that point but I'd
have to get into cases and complications
I don't have time for right now so I'm
going to stop there you got your three
big constitutional questions selective
prosecution failure to give notice of
what the crime was that's the Sixth
Amendment violation and finally the
danger of an unconstitutional
non-unanimous verdict which might have
occurred in this case there are other
errors that Trump's team uh for sure is
going to allege trial errors evidentiary
ruling errors many other uh errors and
some of them might even amount to
constitutional errors but what I've done
now is I've summarized for you three
major uh constitutional arguments that
you can be sure will be made by Trump's
team when they appeal okay part part
three next steps now we know where we
are Where Do We Go From Here could Trump
actually be put in jail you bet he could
each count of this 34 count indictment
has a maximum penalty attached to it of
four years well that's 4 time 34 that's
a maximum sentence prison sentence of
136 years judge meran could sentence
president Trump to jail for 136 years
will he do that of course not he won't
but could he sentence him to some
incarceration yes he could will he
nobody knows lot of people are saying no
he won't he'll just impose probation or
a fine but truth is sentencing is left
very much open to the judge's discretion
it'll all be up to judge meran and
nobody knows what he'll do at this time
now when is sentencing scheduled for
well judge meran has said it for July
11th will something happen between then
and now yes Trump's team will ask for uh
judgment notwithstanding the verdict
they'll ask for judge meran to throw out
the verdict and find Trump innocent
despite the verdict and judge mam will
turn that down then there will be
arguments about what the sentence should
be briefing on both sides possibly even
a hearing then on July 11th sentencing
will be announced and at that point that
triggers the Trump team's right to
appeal to what court would they appeal
well they would appeal to New York's
appell level court and they would make
arguments of the kind that I've
summarized to you and other arguments as
well and they will say throw out this
conviction and uh after the appell court
rules then the case could go up to New
York's highest court which is actually
called the court of appeals but it's New
York's highest court and after that the
case could go up to the Supreme Court
and ultimately it might well go to the
Supreme Court where finally we will have
a definitive uh conclusive ruling on
whether the conviction was
constitutional or not of course that
would take years and that's a problem
here why is it a problem it's a problem
because the election will have taken
place and if this conviction is unlawful
and unconstitutional it could have an
effect on that election there are
surveys many polls in which a
substantial number of American voters
say they will not vote for Trump if he
is convicted of a felony many
Independents say that many Republicans
even say that if that's true an unlawful
conviction in this case could interfere
with and in fact decide the outcome of
the next election of the next president
of the United United States even if the
conviction were reversed on appeal years
later that effect could not be undone in
legal terms that's called irreparable
harm the irreparable harm once again is
that a convicted felon could affect the
election could decide the election and
if so then district attorney Bragg and
judge meron will have unlawfully
interfered with the election and and
decided the outcome of the next election
through unconstitutional means and no
years long appeal could have any effect
on that well is is that where we are so
are we stuck with that possibility well
believe it or not there is one other
Avenue that the Trump lawyers could
pursue they could sue in federal court
and ask for a emergency temporary
restraining order restraining order of
what well let me tell you something that
you might not know you've probably been
reading in the Press if you've been
reading about this case that Trump is
already a convicted felon the jury has
convicted him he's a convicted felon
well guess what that's not true you're
not a convicted felon because of a jury
verdict you're not convicted unless the
judge enters a judgment of guilt against
you the judge still has the power as I
told you before to throw out that
verdict and enter a judgment of acquit
you are not convicted until the judge
enters that Judgment of guilt now in New
York it's very likely that judge meran
will enter that Judgment of guilt
against Trump on the same day that he
issued sentencing that would be July
11th so what would this federal case be
about in this Federal action Trump would
sue uh uh just attorney Bragg and other
state actors and ask the judge the
federal judge for an emergency temporary
restraining order halting judge meron
from entering that Judgment of guilt
until the federal courts have had an
opportunity to review and rule on the
serious constitutional arguments that
exist here and let me tell you why I
think that might be a very important
thing to happen because going after
criminally a former president of the
United States and somebody who is
running for president now that's a very
bad look for this country it's an
especially bad look when the folks bring
in the case and the judge deciding it
are members of the opposing political
party and it's an even worse look when
the crime is so unclear that the state
is hiding the ball about what the actual
charges are right up through the trial
and indeed into the trial and even now
we don't know exactly what the jury
found Trump guilty of if you're going to
go after a former president and somebody
who's running for president now
the poll leading candidate if you're a
member of the other party and you're
going to do that you better have the
goods you better not be pursuing some
novel legal Theory where you have to
hide the ball it's not even clear what
the charges are that could be a very
dangerous precedent for this country a
very bad and dangerous precedent and
that's why it's so important for a
federal court to review the
constitutionality of this prosecution
and decide was it constitutional was it
not to achieve that the only way to
achieve that before the election takes
place is for the Trump team to file an
action in federal court and ask the
federal court to temporarily hold off
the entry of the Judgment of guilt until
the federal courts and maybe the Supreme
Court itself can on an emergency basis
adjudicate the likelihood of success of
these constitutional arguments if that
doesn't happen then that irreparable
harm danger that I mentioned before well
that's that's where we are but if it
does happen the nation could get a
ruling from the federal courts even the
Supreme Court of the United States
before the election takes place and
maybe that's what the nation needs and
maybe that's what the law requires here
so if I were Trump's lawyer that's
probably what I would do I would run
into federal court file this action
under section
1983 and ask for a temporary emergency
restraining order will Trump's lawyers
do that I have no idea but uh that's
what I would do and now I've come to the
end of what I had to say today about
Trump's guilty verdict in this case I
hope you learned something from it if
you want to know uh uh more detail about
it well tune in to other episodes thanks
for listening goodbye
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