Editor’s Note: This is the second of two columns on how Judge Juan Merchan has allowed prosecutors from Manhattan district attorney Alvin Bragg’s office to prove a federal campaign-finance crime against former president Donald Trump by relying on blatantly inadmissible evidence — the guilty pleas of Michael Cohen and a non-prosecution agreement David Pecker struck with the Justice Department. The first column is here.

I n yesterday’s column, I contended that Judge Juan Merchan has collaborated with prosecutors to spread before the jury in his Manhattan courtroom evidence that is blatantly inadmissible against the defendant, former president Donald Trump — specifically, Michael Cohen’s guilty pleas to two Federal Election Campaign Act (FECA) crimes, which he claimed were established by payments to Stormy Daniels and Karen McDougal for non-disclosure agreements (NDAs); and David Pecker’s non-prosecution agreement with the Justice Department, which he executed out of fear that he’d be indicted over the McDougal NDA (he wasn’t, although his former company, AMI, agree to pay the Federal Election Commission a fine — a disposition that allowed AMI to get out from under the federal government’s investigation so it could sell the National Enquirer.)

As I’ve previously detailed, the collaboration between the prosecutors and the judge started before trial. Even as he correctly ruled that Cohen’s election-law convictions were not admissible evidence of Trump’s guilt, Merchan ruled that the prosecutors could use the convictions to impeach Cohen’s credibility — in reality, the prosecutors want the jury to believe Cohen and have no interest in impeaching his credibility. With Merchan’s greenlight, Bragg’s prosecutors put the pedal to the metal right from the opening statement to the jury:

Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.

The prosecution knows that what really landed Cohen in jail was tax and bank fraud in which Trump had no involvement — the FECA violations were an add-on, and a comparatively paltry one. But why let facts get in the way of a good story?

Bragg’s team continued in this vein with the testimony of their first witness, Pecker. Prosecutors similarly “impeached” him by telling the jury that he was party to a non-prosecution agreement with the Justice Department over the McDougal NDA, and that AMI ended up paying a fine to the FEC (referred to as a “Conciliation Agreement”) — all over the supposed federal-campaign-law offense. Again, this testimony was of no value in weighing Pecker’s credibility and it was not admissible against Trump. But Merchan enabled prosecutors to adduce it for the manifest, lawless purpose of signaling to the jury that if Pecker, like Cohen, was admitting to federal-campaign-law crimes, surely Trump must have committed them, too. After allowing extensive testimony on this point, Merchan tried to cover his tracks, blandly instructing the jury:

Neither the non-prosecution agreement, nor the conciliation agreement is evidence of the defendant’s guilt, and you may not consider them in determining whether the defendant is guilty or not guilty of the charged crimes.

Really? Then why did you let the prosecutors spend so much time proving them?

In neither Pecker’s testimony nor Cohen’s did prosecutors elicit any evidence that FECA was considered by anyone in 2016, when Pecker paid McDougal and Cohen paid Daniels. Nor is there any evidence that FECA factored into the reimbursement of Cohen. Trump, Cohen, and Pecker were trying to conceal the alleged extramarital sexual episodes — such concealment being the purpose of NDAs, which are legal and common in civil litigation. There is no evidence that they were consciously attempting to defeat FECA. In fact, if Trump had been thinking of FECA, if he had believed the NDAs were covered by FECA, and if he is the penny-pincher prosecutors have depicted for the past five weeks of trial, then we can reasonably assume that the Stormy NDA would have been paid with Trump-campaign funds (instead of out of Trump’s own pocket), and that Trump would simply have had his campaign write “legal expenses” in the required post-election FEC disclosure (instead of having his private business organization book the NDA reimbursement as “legal expenses” in its records). But in reality, no one appears to have been thinking about FECA. It did not emerge as an issue until February 2018, two months after the last payment to Cohen, when the existence of the NDAs leaked and the FEC started asking questions.

Bear in mind, even if Bragg had jurisdiction to enforce FECA (he doesn’t), he would need to prove beyond a reasonable doubt that Trump willfully violated, or caused others to violate, the felony proscription against excessive campaign expenditures. Whenever a crime is alleged, prosecutors must prove criminal intent. Willfulness is the most burdensome intent standard in the criminal law, calling on prosecutors to prove the defendant was aware of a legal duty and intentionally violated that duty.

Former FEC commissioner Bradley Smith’s testimony would have established that Trump cannot have willfully violated FECA. Because NDAs are not campaign expenditures, Trump did not have a FECA legal duty with respect to them (i.e., a duty not to cause others to make expenditures exceeding a low dollar amount and to disclose expenditures to the FEC). Ergo, he could not have intentionally flouted a known legal duty. But Merchan barred Smith from testifying, even as he allowed Pecker and Cohen to tell the jury, repeatedly, that they made excessive campaign expenditures intending to influence the election.

Moreover, whatever Cohen and Pecker may have rationalized in 2018 when the FEC started investigating, there is no evidence that anyone was thinking about FECA in 2016 and 2017, when the NDAs were paid for and the business records were generated. The records cannot have been falsified in 2017 to conceal a supposed FECA crime that no one was thinking about at the time.

Yet Cohen was permitted to testify that, when he was contacted by the FEC in 2018, he issued this statement:

In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford [the real name of Stormy Daniels]. Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford and neither reimbursed me for the payment, either directly or indirectly. The payment to Ms. Clifford was lawful and was not a campaign contribution or a campaign expenditure by anyone. [Emphasis added.]

Merchan allowed prosecutor Susan Hoffinger to elicit from Cohen that this statement that the NDA payment “was not a campaign contribution or campaign expenditure” was “false or misleading.” Then, at the insistence of Trump’s lawyers, Merchan gave the following instruction:

Jurors, you have just heard testimony that the Federal Election Commission, the FEC, conducted an investigation into the payment to Stormy Daniels and the responses thereto submitted by Michael Cohen and his attorney. This evidence was permitted to assist you, the jury, in assessing Michael Cohen’s credibility and to help provide context of some of the surrounding events. You may consider that testimony for those purposes only. Neither the fact of the FEC investigation nor the responses thereto constitute evidence of the defendant’s guilt, and you may not consider them in determining whether the defendant is guilty or not guilty of the charged crimes. [Emphasis added.]

Could it possibly be more obvious that Hoffinger did not elicit this testimony so the jurors could evaluate Cohen’s credibility? She elicited it to establish that the NDA payment to Stormy Daniels was a campaign expenditure. And the only real issue in the case is Trump’s guilt. Does anyone seriously think the jurors understand that Cohen’s legal interactions with the FEC and the SDNY are immaterial to the determination of Trump’s guilt or innocence when the judge has repeatedly permitted prosecutors to stress them?

If you like prosecutorial sleight of hand, Cohen’s testimony is a work of art. Hoffinger adduced from him that, when Pecker became alarmed by the FEC’s probe in 2018, Cohen told him not to worry because “the matter is going to be taken care of and the person, of course, who is going to be able to do it is [Trump’s then-attorney general] Jeff Sessions.” By and by, Hoffinger elicited from Cohen that, at some undescribed point in time, Trump had told him that he’d have Sessions make the problem go away.

Yet, although Hoffinger had walked Cohen through prior conversations he’d had with Trump, he never mentioned this Sessions bombshell. To believe it happened, you have to believe Cohen — and even if it did happen in 2018, it wouldn’t prove that FECA concerns had anything to do with the 2017 business-record entries. More to the point, in the federal government, the attorney general does not control the FEC. The AG runs the Justice Department, which handles criminal enforcement of FECA; the FEC, an independent, congressionally created commission, handles civil enforcement of FECA. While it may consult with the DOJ, the FEC decides what actions to bring. Even if he were willing to be corrupt (and there is no evidence in the case implicating Sessions, who is not corrupt), Sessions would have had a hard enough time putting the kibosh on prosecutions by his own department (as the SDNY’s case against Cohen demonstrates); he would have been in no position to thwart the FEC (as the Pecker/AMI episode shows).

Hoffinger also drew from Cohen that, as Trump’s private lawyer in September 2018 (i.e., nearly a year after the acts Bragg has charged as crimes), Cohen took legal action based on the NDA to restrain Daniels (and her then-lawyer, the now-convicted Michael Avenatti) from going public with her story. The prosecutor had Cohen tell the jury that he and Trump decided to cease their effort to enforce the NDA because Trump would have had to testify.

Clearly, Hoffinger was inferring that Trump did not want to testify because he might end up incriminating himself regarding FECA. This was such a blatant abuse of Trump’s Fifth Amendment rights that even Merchan sustained a defense objection and struck the testimony — of course, only after the jury had heard it.

The testimony prosecutors elicited about Cohen’s guilty pleas has to be read to be believed. Under the guise of allowing the testimony solely to help the jury weigh Cohen’s credibility, Merchan enabled Hoffinger to use Cohen as an expert witness on FECA and to use the plea to establish Trump’s guilt:

Q: And on August 21, 2018, did you plead guilty to one count of making an excessive campaign contribution in violation of the Federal Election Campaign Act?

A: I did.

Q: What did that charge relate to?

A: Stormy Daniels.

Q: And did it relate to, specifically, your paying $130,000 so that it would not be public and that it was done on behalf of President Trump to influence the election?

A: Yes.

At that point, when Hoffinger began in a leading manner to emphasize that Cohen had paid Daniels “in order to influence Mr. Trump’s electoral prospects,” Merchan responded to a defense objection by agreeing to give the rote instruction that this testimony was inadmissible on the question of Trump’s guilt. But first he let Hoffinger hammer the point home for the jury:

Q: Why, in fact, did you pay that money to Stormy Daniels?

A: To ensure that the story would not come out, would not affect Mr. Trump’s chances of becoming president of the United States.

Q: If not for the campaign, Mr. Cohen, would you have paid that money to Stormy Daniels?

A: No, ma’am.

The defense tried to object to this exchange, in which prosecutors were conveying to the jury that, in Cohen’s opinion, the payment was a campaign expenditure under FECA. But Merchan overruled them, allowing Hoffinger to barrel ahead:

Q: At whose direction and on whose behalf did you commit that crime?

A: On behalf of Mr. Trump.

The prosecutor then moved on to Cohen’s other FECA guilty plea, for supposedly causing AMI to make an illegal corporate campaign contribution — the McDougal NDA. As with the first FECA count, Hoffinger used Cohen as her expert, eliciting that he collaborated with AMI on the NDA “in order to ensure the possibility of Mr. Trump succeeding in the election. That this would not be a hindrance.” We’re to believe that it was only for purposes of allowing the jury to weigh Cohen’s credibility — not for establishing Trump’s guilt, no siree — that Hoffinger was permitted to elicit the following testimony about what she stressed was a FECA crime:

Q: At whose direction and on whose behalf did you do that?

A: At the direction of Donald J. Trump.

Q: And for whose benefit?

A: For the benefit of Donald J. Trump.

Only at this point, with the “credibility” pretext for allowing this prejudicial testimony patently untenable, did Merchan finally intervene:

Jurors, I’m going to give you an instruction at this time. You have just heard testimony that Michael Cohen pleaded guilty to violating the Federal Elections Campaign Act, otherwise known as FECA. That evidence was permitted to assist you, the jury, in assessing Mr. Cohen’s credibility as a witness and to help provide context for some of the events that followed. You may consider that testimony for those purposes only. Mr. Cohen’s plea is not evidence of the defendant’s guilt, and you may not consider it in determining whether the defendant is guilty or not guilty of the charged crimes.

Sure, judge.

Constitutionally speaking, the principal duty of the theoretically independent, impartial judicial officer in a criminal case is to protect the accused from abuse by the state. Here, the judicial officer has made common cause with the state to parade before the jury, time and again, evidence that he knows is (a) inadmissible against the defendant and (b) being conveyed to the jury for the precise improper purpose that makes it inadmissible.

Alvin Bragg’s “evidence” that Trump violated federal campaign law is that Michael Cohen pled guilty to FECA crimes and that David Pecker fretted over the possibility that he might be charged with FECA crimes. Judge Merchan denied the jury an explanation from former commissioner Smith, a qualified expert, that the NDAs were not FECA violations; as a result, all the jury has to go on is uninformed meanderings about FECA by Cohen and Pecker. Further, Bragg’s prosecutors were permitted to lard the record with testimony about how the FEC and the Justice Department were convinced that Cohen and Pecker violated FECA; yet, Merchan barred the defense from telling the jury that the FEC and the Justice Department determined that Trump should not be prosecuted after thorough investigations — to say nothing of the fact that only those agencies have authority to enforce FECA; the Manhattan District Attorney’s Office does not.

This is a travesty.