Why Alvin Bragg's 'Jackson Pollock' prosecution is more likely to produce a hung jury
Alvin Bragg has created a new school of abstract law where there is no need for objective meaning.
Abstract artist Jackson Pollock once said that his paintings have no objective meaning, so the best way for people to enjoy them is to stop looking for it.
For many of us, Manhattan District Attorney Alvin Bragg has created a new school of abstract law where there is no need for objective meaning. The jury is simply supposed to enjoy it for what it is: a chance to convict Donald Trump.
Pollock was famous for his painting drips on large canvases. Bragg has achieved the same effect by regenerating a dead misdemeanor on falsifying business records as 34 felony counts. To achieve that extraordinary goal, he has alleged that the document violations (which expired long ago under the statute of limitations) were committed to hide some other crime.
Originally, Bragg vaguely referenced four crimes and there have been months of confusion was to what he was specifically alleging as his criminal theories. Even legal analysts on CNN and MSNBC have continued to question the specific allegations against Trump as we head into closing arguments.
As it stands, there are three crimes that have been referenced by prosecutors: state and federal election violations and taxation violations.
Bragg's legal vision for non-objective indictments was greatly advanced by Judge Juan Merchan, who will allow the jury to reach different rulings on what crime is actually evident in Bragg's paint splatters.
Merchan has even ruled that the jurors can disagree on what actually occurred in terms of the second crime. This means there could be three groups of four jurors, with one believing that there was a conspiracy to conceal a state election violation, another believing there was a federal election violation (which Bragg cannot enforce), and a third believing there was a tax violation, respectively. Nonetheless, Merchan will treat that as a unanimous verdict.
In other words, they could look at the indictment and see vastly different shapes, but still send Trump to prison on their interpretations.
Moreover, Michael Cohen is the sole witness even to address the elements of any of these crimes. Cohen is a convicted serial perjurer and disbarred attorney who appears to have lied again during the trial. Even if they consider his testimony, there is no direct corroboration in evidence on Trump's intent or knowledge. As a result, the prosecutors will rely on circumstantial evidence to support whichever interpretation the jurors will buy.
Faced with charges that can mean different things to different jurors, Trump's team will have to focus on the spaces between the paint drips; the canvas itself.
All of this case is based on the payment for a non-disclosure agreement that is perfectly legal and indeed common in business and politics. The Trump team needs to stop dancing around the NDA.
The jury likely believes that Trump knew of the NDA and supported it. The defense has to emphasize the testimony of David Pecker, the former publisher of the National Inquirer, that he killed stories for a variety of celebrities and politicians, including Rahm Emmanuel and Arnold Schwarzenegger. He also said that he killed stories for Trump for years before he even thought of running for president.
They need to emphasize the testimony of multiple witnesses that Trump seemed to want to avoid embarrassment to his family. He was also the host of a popular television show and an international businessman. The payment of a couple hundred thousand to kill stories is considered a cost of doing business for most celebrities, particularly those who have television contracts with provisions allowing cancellation for scandals.
In the instructions, the court will tell the jurors that payments cannot be campaign contributions if they would have been made anyway regardless of the campaign.
They also need to point out other gaps. It was not Trump who listed payments as legal expenses or retainer payments. Witnesses said that payments to lawyers are routinely recorded as legal expenses. Indeed, it is not clear how the money should have been denominated but the decision was being made by others in the Trump organization and by Cohen himself.
Moreover, on the characterization of payments as part of a "retainer," the other party to that characterization was former Trump Organization CFO Allen Weisselberg. He is currently in prison in New York, but was not called by the prosecution. The prosecutors elected to rely entirely on Michael Cohen with various witnesses, including Cohen, referencing Weisselberg's decision on how to pay the money.
That made the canvas itself largely Michael Cohen. All of this is held together by a witness who admitted that he has lied to banks, Congress, prosecutors, business associates, and virtually every creature that has ever walked or crawled on the face of the Earth. He also lied in front of the jury about the critical call where he said that he told Trump about the NDA payment.
The defense showed that that 96-second-long call was to Trump’s bodyguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that indicated that their conversation was actually about a teenager harassing Cohen.
Moreover, Cohen admitted to making millions by bashing Trump, and that he has a personal interest in his conviction.
You can throw paint on Cohen all day, but it will not cover up the fact that he is a pathological liar and grifter.
That is why I still believe that a hung jury might even be the most likely possibility. That may change when we see Judge Merchan's final instructions. However, the only thing worse in New York than being a Trump supporter is being a chump. To rely solely on Cohen and not even call someone like Weisselberg is to play these jurors as chumps.
Pollock was doing more than just throwing paint at a canvas. As Pablo Picasso said, "there is no abstract art. You must always start with something. Afterward you can remove all traces of reality." Bragg started with nothing and sold it as a legal abstraction.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.