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involved in civil litigation against President Trump while working at the New York
Attorney General’s Office, campaigned on a promise to prosecute President Trump, and
then recruited the third-highest ranking official from Biden’s Department of Justice (DOJ)
to lead his trial court efforts against President Biden’s political opponent. These actions
leave a reasonable person to question the motivations of this prosecution, thereby
establishing a disqualifying impropriety.
Second, the indictment charges President Trump with 34 counts of falsifying
business records for making entries in records with the “intent to commit another crime.”
The charges’ reference to an unspecified and unidentifiable other crime constitutes a
deprivation of due process by denying the defendant his Sixth Amendment right to be
informed of the crimes with which he is charged. How was President Trump supposed to
offer a defense at trial when his notice of the allegations was legally deficient on its face?
This is especially true given the fact that the body of law he was alleged to have violated
provides for an affirmative defense that the defendant must prove by a preponderance of
the evidence.
Third, the prosecutor sought a gag order in this case. There is a strong presumption
against gag orders as violative of an individual’s First Amendment right to free speech.
This presumption should be even more strictly applied when the defendant is a presidential
candidate in the throes of a campaign. Bear in mind, the right to free speech protects not
only the speaker, but Americans’ right to hear from a candidate. Moreover, one of the legal
elements used to analyze the necessity of a gag order is whether statements related to the
trial would jeopardize the defendant’s right to a fair trial. If the defendant wishes to waive
their right and speak out, the First Amendment protects their ability to do so. It was wholly
improper for the prosecutor to seek an unconstitutional gag order and is further evidence of
the underlying political motivations underpinning this case.
Fourth, the prosecutor perverted the law to meet the facts rather than objectively
apply the facts to the law. The statute at issue prohibits a false entry into a business record.
However, the invoices, ledger entries, checks, and check stubs were authentic in that the
entities listed received the funds enumerated in the documents. The prosecutor had to
expand the charges beyond the text of the statute to allege that these transactions that
were accurately recorded were for some other purpose. The prosecutor seeks to criminalize
that which he does not like rather than that which the law forbids. Again, this perversion of
the plain text of the law emphasizes the political nature of this prosecution, but is also an
affront to the rule of law more broadly.
Fifth, the prosecutor failed to correct the Court’s error in instructing the jury that
unanimity was not required as to the predicate offense that forms the basis for the fallacious
charges. Since 2020, the United States Supreme Court has held the Sixth Amendment right
to trial by jury includes jury unanimity as to each element of the offense for which the
defendant is tried. President Trump’s right to jury unanimity was violated in this case
when the Court converted the jury into a roving commission free to roam through the facts
and evidence and assign liability where each juror pleased. The prosecutor had an
