The Democrats’ frantic drive to get compliant judges to throw Donald Trump in jail before November’s election is bumping into some constitutional challenges. And millions of working people can see a presidential candidate is being charged for things that are not crimes and that when he moves to defend himself, he is hit with a gag order.
In the only case to go to trial so far, Trump is charged by Democratic Manhattan District Attorney Alvin Bragg with a misdemeanor — falsifying business records. But the DA is trying to transform this into a felony. He claims it was done to abet another crime, an unspecified conspiracy to carry out “election fraud” in 2016.
Under New York law, a prosecutor isn’t required to identify the second crime, or to prove it beyond a reasonable doubt. This is a clear violation of the Constitution’s Sixth Amendment, which says anyone accused of a crime must be provided with all the charges so they can defend themselves.
Judge Juan Merchan — another Democrat — has imposed a far-reaching gag order, ruling that Trump can’t comment on potential witnesses like Michael Cohen and Stephanie Clifford, better known as Stormy Daniels. At the same time, Cohen and Clifford are giving interviews smearing the former president.
In a further blow to free speech, Merchan fined Trump $9,000 April 30 for violating the order and threatened to jail him if he did so again. The “violations” included Trump reposting articles from the New York Post, National Review and a 2018 statement signed by “Stormy Daniels” denying ever having had an affair with him.
Any time governments or courts trample on constitutional freedoms — regardless of who is in the dock — it’s dangerous for working people. In a capitalist state based on the exploitation of the vast majority by the propertied few, these freedoms are vital protections workers need in order to fight for our own interests.
Bragg’s prosecution of Trump relies heavily on character assassination. Merchan has granted the prosecution’s requests to present to the jury testimony concerning unrelated and salacious gossip about Trump. The first week of the trial was dominated by testimony from David Pecker, former publisher of the National Enquirer. In response to questions by the prosecution, he described rumors that Trump had fathered a child with one of his employees and claims he had an affair with model Karen McDougal.
If Trump decides to testify, Merchan will let prosecutors interrogate him about these types of allegations, issues that the former president faces no charges over. They will also be permitted to ask him about other legal cases, like the New York civil business fraud case and writer E. Jean Carroll’s lawsuit for slander.
None of this has anything to do with Bragg’s charge that Trump falsified business records in 2017. It has everything to do with trying to portray him in the worst possible light to help prejudice the jury — and rig the election for Joseph Biden.
In a related matter, film producer Harvey Weinstein, who faced multiple rape allegations, had his 2020 conviction for rape and sexual assault overturned April 25 by the New York State Court of Appeals. It ruled the trial judge allowed prosecutors to introduce sexual assault testimony against Weinstein from three women that was unrelated to his prosecution.
This was an unabashed effort to prejudice the jury against Weinstein amid a series of protests by the “Me Too” movement demanding courts “believe women.”
“Until Thursday, it seemed that we had entered a new age of accountability, legal and social, not just for Mr. Weinstein but also for the abusers who’d come after him,” wrote New York Times contributing editor Jessica Bennett April 27. She decried the appeals court for upholding constitutional protections, arguing the legal system has to be changed.
Weinstein remains incarcerated on a separate conviction for rape in California.
Supreme Court takes ‘election fraud’ case
In another case, the U.S. Supreme Court began hearing Trump’s appeal April 25 that as a former president he has immunity from prosecution by the Justice Department’s special counsel Jack Smith. Smith’s charges include accusations of conspiring to obstruct an official proceeding — Congress voting to confirm the 2020 election results — and to defraud the U.S.
“The Framers did not put an immunity clause into the Constitution,” liberal Justice Elena Kagan argued at the hearing. “Wasn’t the whole point that the president was not a monarch?”
But a number of other justices expressed reservations about the political character of Smith’s prosecution. “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Justice Neil Gorsuch said.
Justice Samuel Alito said he feared Trump and other former presidents could face politically motivated trials and find themselves “unable to engage in other activities.” In Bragg’s current trial of Trump, the presidential candidate is required to attend every court session, on pain of incarceration.
Justices also discussed differences between actions that are related to presidential responsibilities and some that are private. They may decide to send the case back to the trial court for arguments and a decision on the status of each of Smith’s charges. That would make it even more likely any trial in the case could only begin after the November elections.