Opinion: Prosecutors in Trump trial have strayed from their mandate to ensure justice is done

opinion: prosecutors in trump trial have strayed from their mandate to ensure justice is done

Opinion: Prosecutors in Trump trial have strayed from their mandate to ensure justice is done

The New York state district attorney’s Ethical Guidelines for Prosecutors states that the prosecutor “Is the representative not of an ordinary party to a controversy but of a sovereignty…whose interest, therefore, in a criminal prosecution is not that it shall win the case, but that justice shall be done.”

This quote, which comes from the Supreme Court’s opinion in Berger v. U.S., is even more applicable now that the Manhattan District Attorney’s Office’s case against former President Donald Trump has concluded.

In this case, prosecutors have strayed from their own ethical mandate to ensure justice is done, instead assuming the role of an ordinary party fixated on winning a case despite clearly having inadequate evidence.

There is an embedded principle in American jurisprudence that the uncorroborated testimony of one individual should be insufficient to convict another and take away his or her liberty. Article III, Section 3 of the Constitution states that, “No Person shall be convicted of Treason unless the Testimony of two Witnesses to the same overt Act.” Similarly, federal perjury statute 1621, derived from common law, requires two witnesses to sustain a perjury conviction.

These principles exist precisely because it is often impossible to discern the credibility of a single witness and therefore manifestly unfair to convict any defendant based on that testimony alone.

Although the two witness rule is not a requirement of the New York statutes, it is telling that no witness corroborated the statements that Michael Cohen attributed to Trump in his testimony. In fact, Cohen’s surreptitious audio recording of Trump, wherein he merely stated “Just take care of it,” buttresses the defense’s claim that Trump was not involved in the formulation, mechanics or accounting classification of the transaction that precipitated this entire case.

This is hardly evidence that Trump “repeatedly and fraudulently falsified business records,” as the prosecution alleges. Fraud requires a culpable state of mind and, no matter how creative the prosecutors may be, the phrase “Just take care of it” does not meet the necessary threshold.

In fact, Trump even paid for the taxes on the transaction, which is hardly the hallmark of an illegal scheme.

Upon cross examination, Cohen was evasive and played semantic games with ambiguous answers such as, “It sounds like something I would say.” In the most devastating portion of the cross examination, Trump’s counsel Todd Blanche masterfully exposed Cohen’ to be an inveterate liar’s mendacity. Cohen testified with certainty on direct examination that on Oct. 24, 2016 he had called Trump’s bodyguard Keith Schiller, who handed the phone to Trump, whereupon Trump and Cohen finalized the Stormy Daniels deal. But upon cross examination, text messages before and after the call revealed that the call was actually between Cohen and Schiller about harassing telephone calls from a teenager.

Cohen was also forced to admit that he had stolen money from Trump. Thus, the only direct witness to Trump’s supposedly incriminating statements was exposed as both fabricating his testimony and stealing from the defendant.

Critically, prosecutors also failed to establish a nexus between Trump’s purported actions and the concealment of information from voters. The prosecutors alleged that Trump falsified business records in order “to conceal crimes that hid damaging information from the voting public during the 2016 election.” But even if each check and accounting entry bore the marking “Payment to Stormy Daniels,” voters would never have had access to those records. The Trump Organization is not a public company and does not store its accounting records in Trump Tower’s public atrium.

Prosecutors also attempted to downplay the significance of the 2011 blog article that detailed Daniels’s allegations. The prosecutor asked Cohen, “Did the article get any traction in 2011; meaning was it out there much?” Cohen responded “No.” But Cohen’s assessment of whether the article received “traction” is irrelevant to the question of whether it had been previously placed into the public domain and therefore not hidden from the public as prosecutors allege.

Finally, prosecutors brazenly referred to Cohen’s guilty plea to federal election law violations on numerous occasions. This was a calculated and unethical attempt by the prosecution to impute Cohen’s guilty plea onto Trump, and to suggest that somehow he too had committed violations. Judge Juan Merchan sustained some of the defense objections to this, and issued limiting instructions to the jury, but this was insufficient to cure the prejudicial nature of those statements.

In reality, Cohen was pressured to plead guilty to those crimes because federal prosecutors threatened to indict his wife.

At the outset of this case, many speculated that surely the Manhattan district attorney had credible evidence to substantiate these unprecedented allegations. However, it is now clear that prosecutors did not heed the admonition of the Supreme Court in Berger that the prosecutor, “While he may strike hard blows is not at liberty to strike foul ones.”

District Attorney Alvin Bragg clearly struck a foul blow in this case by gambling that a Manhattan jury would ignore his lack of evidence. There is a certain poignancy to the fact that Trump rallies play Lee Greenwood’s “God Bless the USA” that includes, “Proud to be an American where at least I know I’m free.” Whether Trump will remain free depends on whether, unlike the prosecutors, the 12 jurors understand that their mandate is to ensure justice is done.

George G. Demos is a former United States Securities and Exchange Commission enforcement attorney and an Adjunct Professor at U.C. Davis School of Law where he teaches Corporate and White Collar Crime.

Copyright 2024 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

For the latest news, weather, sports, and streaming video, head to The Hill.

OTHER NEWS

17 minutes ago

Australia's Warner bows out of international cricket

17 minutes ago

Soccer-6,101 pieces of history: Brazilian owns world's largest shirt collection

17 minutes ago

A Quiet Place writers' new horror movie starring Hugh Grant unveils its first trailer

17 minutes ago

Comfy and stylish maternity midi dresses from £33 as Jenna Coleman stuns in £995 Tove satin dress

18 minutes ago

49ers' Brandon Aiyuk has sarcastic response to trade report

18 minutes ago

England vs Slovenia LIVE! Euro 2024 result, match stream, latest reaction and updates as Three Lions top group

18 minutes ago

Angler breaks state record with 127-pound catch: 'We got really lucky'

18 minutes ago

2024 Yamaha MT-09: Everything You Need To Know

18 minutes ago

AI is replacing human tasks faster than you think

19 minutes ago

Singapore port congestion shows global ripple impact of Red Sea attacks

19 minutes ago

NATO member Romania to send a Patriot missile system to neighboring Ukraine

19 minutes ago

Tennessee turns over probe into failed Graceland sale to federal authorities, report says

19 minutes ago

Asia-Pacific markets set for mixed open ahead of Australia's May inflation figures

19 minutes ago

New Jersey gamer flew to Florida to attack online rival with hammer, police say

19 minutes ago

Family of Afro Indigenous activist in immigration detention worries he may be deported back to danger

21 minutes ago

Lethbridge College to become a polytechnic institution

21 minutes ago

Sask. high schoolers graduate after unusual four years

23 minutes ago

Video: Abbie Chatfield reveals surprise family news after 'hard launching' new boyfriend Adam Hyde

24 minutes ago

Lakers' new coach JJ Redick is accused of calling African-American woman the N-word at Duke in early 2000s.... but ex-Blue Devils star denies claim

24 minutes ago

Seasoned Pennsylvania teacher Neil Young wants to take his ‘heart of gold’ to Congress: ‘The real deal’

24 minutes ago

Yes, They All Broke Up

24 minutes ago

More than two thirds of mothers feel their vote does not count, survey reveals

24 minutes ago

Cubs release one-time World Series champion amid career-worst season

25 minutes ago

Caucus discipline the ‘most fundamental principle’ of Labor Party

25 minutes ago

Practice Footage Of LeBron, Bronny, And Bryce Is Going Viral

25 minutes ago

Just Stop Oil Twickenham protester was ‘doing his duty as a doctor’

25 minutes ago

Wikileaks founder Julian Assange boards plane out of UK as part of plea deal with the US

25 minutes ago

Plano gymnast moved to North Texas in hopes of making Team USA

25 minutes ago

Home in south-west Sydney targeted in drive-by shooting

25 minutes ago

FlameFest set to fire up winter in Mandurah with two-day sizzling entertainment festival

25 minutes ago

GM reveals the American Holden Commodore that never was

25 minutes ago

Community donates more than $11,000 to help young Greenfields family after house fire

25 minutes ago

Rockingham: Ben Smith & Drew La Reservee mourning unexpected death of 16-month-old son Micah

25 minutes ago

Mandurah composting facility C-Wise threatens residents with legal action for ‘defamatory’ Facebook posts

25 minutes ago

Vauxhall threatens to pull plug on UK car making amid row over EV sales targets

25 minutes ago

Girls Aloud's Nadine Coyle left red-faced after very awkward stage blunder

25 minutes ago

Google announces surprise event, teases Pixel 9

28 minutes ago

Illinois Tollway unveils ‘lane blades' to help clear debris, keep drivers safe

30 minutes ago

Oleksandr Usyk vacating IBF title ahead of Joshua-Dubois bout

30 minutes ago

Source: Jim Schlossnagle leaves Texas A&M for Texas baseball job