I have observed and participated in trials throughout the world. I have seen justice and injustice in China, Russia, Ukraine, England, France, Italy, Israel, as well as in nearly 40 of our 50 states.
Nearly 40? I think you can safely go right ahead and name the number, Alan. We can handle numbers as large as 39 or 38 without having to round to the nearest ten.
But in my 60 years as a lawyer and law professor, I have never seen a spectacle such as the one I observed sitting in the front row of the courthouse yesterday.
The judge in Donald Trump's trial was an absolute tyrant, though he appeared to the jury to be a benevolent despot. He seemed automatically to be ruling against the defendant at every turn.
Many experienced lawyers raised their eyebrows when the judge excluded obviously relevant evidence when offered by the defense, while including irrelevant evidence offered by the prosecution.
But when the defense's only substantive witness, the experienced attorney Robert Costello, raised his eyebrows at one of New York Supreme Court Justice Juan Merchan's rulings, the court went berserk.
Losing his cool and showing his thin skin, the judge cleared the courtroom of everyone including the media.
For some reason, I was allowed to stay, and I observed one of the most remarkable wrong-headed biases I have ever seen. The judge actually threatened to strike all of Costello's testimony if he raised his eyebrows again.
That of course would have been unconstitutional because it would have denied the defendant his Sixth Amendment right to confront witnesses and to raise a defense.
It would have punished the defendant for something a witness was accused of doing.
Even if what Costello did was wrong, and it was not, it would be utterly improper and unlawful to strike his testimony -- testimony that undercut and contradicted the government's star witness.
The judge's threat was absolutely outrageous, unethical, unlawful and petty.
Moreover, his affect while issuing that unconstitutional threat revealed his utter contempt for the defense and anyone who testified for the defendant.
The public should have been able to see the judge in action, but because the case is not being televised, the public has to rely on the biased reporting of partisan journalists.
The judge has repeatedly allowed Michael Cohen to testify that he pleaded guilty to campaign finance charges, insinuating that those are the actions under dispute in this trial.
The defense wanted to bring in a witness to explain that those charges have nothing to do with this trial.
Merchan says that only he gets to tell the jury what the law is -- even when he misstates it, or schemes with the Soros DAs to falsely imply that there are proven campaign finance abuses here.
BRAD SMITH: WHAT I WOULD HAVE TOLD THE TRUMP JURY.
In recent days, it has become clear that the Trump trial, in which Manhattan District Attorney Alvin Bragg seeks to imprison former President Donald Trump for a maximum of 136 years over allegedly false bookkeeping, will somehow come down to federal campaign finance law. In this way: Trump is charged with falsifying his company's business records regarding his payment for a legal nondisclosure agreement with the porn actress Stormy Daniels -- and doing so with the intention of committing another crime. But prosecutors have never specified what that other crime is.
In various court filings, however, prosecutors have suggested they plan to argue that Trump intended, along with the false bookkeeping, to violate a state law that bars promoting a political candidacy "by unlawful means." That's the other crime, prosecutors will say, and the "unlawful means" will be a violation of the Federal Election Campaign Act, or FECA, the 1970s-era law that regulates political fundraising and spending in federal elections.
That would create a weird situation: a local district attorney in New York prosecuting federal law. "One would say Bragg is outside of his lane, but in this case, he's on a completely different highway," George Washington University law professor Jonathan Turley told Fox News in March. "This is an effort by a state official to effectively prosecute a federal crime, a crime that the Department of Justice decided not to prosecute."
But that's what Bragg apparently plans to do. And that led the Trump defense to consult an expert in federal campaign finance law to be ready to testify in the event that Bragg's prosecutors do indeed characterize the Trump case as based on a violation of federal election law. The expert they chose was former Federal Election Commission Chairman Brad Smith, who is certainly one of the leading authorities in the nation on the application of FECA.
Smith has been an outspoken opponent of what he views is the overapplication of campaign finance law. Specifically, as this newsletter noted a couple of weeks ago, Smith "has argued that there are all sorts of things a candidate can spend money on that are not legally classifiable as 'for the purpose of influencing any election.'" Among those things would be the nondisclosure agreement Trump reached with Daniels.
The problem for Trump is that Judge Juan Merchan does not want to hear from Smith. Early on, Merchan barred Smith from testifying about virtually anything that had anything to do with the Trump case. He barred Smith from testifying about the campaign finance laws at the heart of Bragg's charges against Trump. He barred Smith from testifying about anything except general facts about the job of the FEC or the definition of some common campaign terms. In the end, the Trump team decided it was not worth calling Smith to testify under what amounted to a judicial gag order.
So Smith left the courthouse without testifying on Monday. As he headed home, we had a phone conversation about what he would have told the jury had Merchan allowed it.
Hit the link for his full would-be testimony. Basically, he wanted to explain that when people hear legal terms like "unlawfully influence," they will read their own common sense plain-meaning definitions into the term.
But he wanted to point out the FEC had made many, many rulings on what unlawful influence is -- and what it is not -- that are the controlling meaning.
Smith offered another example. "Go back to 1999. Hillary Clinton buys a house in New York. She bought it clearly to influence the election -- I mean absolutely, right? -- because she had to have a residence in New York. It is totally indisputable -- that is a reason why she bought it. But it's not a campaign expenditure. It doesn't matter. People buy houses. We would have wanted to inform the jury about the notion of personal use and talked about the idea that what is a campaign expense is an objective test, not a subjective test."
When it comes to the details of the Trump prosecution, knowing how campaign finance law works has led Smith to believe that what is alleged to be the core violation in the case, that paying Daniels amounted to a campaign contribution or a campaign expenditure, is simply not true. "I can tell you my personal belief is that clearly paying hush money, or paying for a nondisclosure agreement, does not constitute a campaign expense," Smith said. "To use an example I've often used, it's not a campaign expense if a businessperson is running for office and his businesses are getting sued, and if he goes to his company lawyers and says, 'I want to settle these lawsuits against us. We've got some wage employment lawsuits and a woman is alleging sexual harassment. We've got 36,000 employees, but we've got these three complaints and the press will make a big deal about them. So I want you to settle these.' And the company lawyers say, 'No, these are great cases we should win. We shouldn't settle them.' He says, 'I don't care. I'm running for office. I don't want press stories on it. I want you to settle them quietly.' Well, he cannot use campaign funds to pay that settlement, even though he is clearly doing it for the purpose of influencing his campaign."
"It's kind of similar to what went on here," Smith continued, referring to the Trump case. "So my personal belief is that this clearly would not have been a campaign expenditure, never had to be reported, and therefore was not misreported."
Smith stressed again that he did not plan to testify about the specifics of the Trump case. Instead, he hoped to "lay out some of the factual work of the law -- how does the law work in practice?" But that's not going to happen.
As I've mentioned before: Even though Merchan made illegal donations to Biden and the Democrats -- I guess judges aren't allowed to do that in NY -- he was "hand-picked" to oversee the Trump Lynching Party.
"It is very clear, they say you can't make political contributions and he did," Turley said on "Fox and Friends" after co-host Ainsley Earhardt mentioned the donations. "And the fact it is 'de minimus' or small, really, I think, misses the point. You make donations to show your support, that is what that $15 did."
"What's also concerning for many is that Merchan was not randomly selected, he was hand-picked as the judge for this case, and many of us don't understand it," Turley continued. "You have a judge who is donor to the president, whose daughter is a major Democratic operative, you would think this would be an easy call, there are plenty of other judges."
Loren Merchan, the judge's daughter, works for a firm that helped Democratic causes raise $93 million off Trump's indictment in the case centering around a $130,000 payout to porn star Stormy Daniels, the New York Post reported. Merchan expanded a previously-issued gag order April 1 after former President Trump posted a link to the New York Post's report.