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Lawfare and a porn star                                                                                     Print this essay

Posted at: May/09/2024 : Posted by: Mel

Related Category: Society, The Law, Watching America,

It’s 2024 and if you haven’t been following the news this election year, there is a twist to how the political game is being played. We have seen debates, naming calling, disparaging remarks on family, and twisted rewriting of history, but the latest game is called “Lawfare.” Lawfare is the use of the legal system and its institutions to damage, delegitimize, or hinder a political opponent. This latest version is the stuff of good tabloid television including an NDA (Nondisclosure Agreement), a supposed encounter from 18 years ago, a $130,000 payment, and a porn star. Add in a political agenda, and clearly, no one from the screenwriter’s union is required.

In the first episode, Trump was found guilty of getting too good a deal on a loan. Essentially, the judge said he overvalued the property he used as collateral, then got a great loan, employed lots of people, and paid the loan and interest back on time. These are all behaviors we need to prosecute leveraging an obscure law that does not require a victim. The New York State Attorney General and the appointed judge are currying favor with the national Democratic Party leadership. Maybe Letitia James is expecting to be the next ambassador to Monaco.

In the second episode, Manhattan District Attorney Alvin Bragg has charged Trump with “Falsifying Business Records in the First Degree.” In one instance a doorman was paid $30,000 to suppress a story about a supposed Trump child born out of wedlock. In a second instance AMI (American Media Inc), publishers of the National Inquirer asked for $150,000 to suppress a story they had that implied an illicit affair by Trump. AMI later admitted to the federal prosecutor that their conduct was unlawful. In the third instance, the Trump organization through its lawyers made a payment to porn star Stormy Daniels to repress an alleged sexual encounter with Trump 18 years ago. Ms. Daniels additionally signed an NDA, and the payment was recorded as “consideration”.

Consideration is a legal term in contract laws for the exchange of something of value.

Bragg’s prosecution of Trump is specifically about how payments were recorded arguing that they represent falsifying of records; and that Trump was knowingly involved. After numerous current and former Trump organization witnesses testified it became clear that nothing was done overtly wrong and that Donald Trump was not directly involved in any of the payments or bookkeeping.

With the technical portion of his case fading Bragg brought to the stand Stormy Daniels. Like any 1960s or 70s courtroom drama, bring an over-the-top character near the end so everyone will stay for the last set of commercials. Ms. Daniels pulled off her performance perfectly though it would be easy to also call her testimony ridiculous.

She offered a tutorial on her notorious vocation -- sex. She also attempted to promote herself as a mainstream actress because she had a role in Steve Carell’s “The 40-Year-Old Virgin.” She is listed 45th in the credits and as a porn star, she played the role of “porn star.” All of this may be titillating but seems to have nothing to do with the charge of Falsifying Business Records. Daniels claims to have had a tryst with Trump 18 years ago, which he denies. She denied it as well, in writing… but only after squeezing $130,000 from Trump’s legal team when he ran for president a decade later by promising to go public. Her demands and threats intensified as the election drew near. I believe they call that extortion, even though she confessed to this crime while in court, she’s not on trial and like someone occupying a college building, will likely not be charged.

At 45 years old Daniels would normally be considered over the hill for her industry, but self-promotion is her specialty. She has worked overtime to profit financially off of her fleeting association with Trump and to appropriate his MAGA slogan. She headlined strip club appearances that she dubbed, "Make America Horny Again." She published a tawdry tell-all book titled, "Full Disclosure," and vented her disappointment that Trump refused to feature her in his popular reality television show "The Apprentice."

On the stand, Daniels told the jury a salacious tale of meeting Trump privately for dinner and having sex with him only once. Curiously, she now claims she blacked out. Is any of it the truth? It shouldn’t matter because it is completely immaterial to the case about falsified record keeping. Moreover, Daniels has a nasty habit of peddling inconsistent narratives about the purported episode while adopting the mantle of an innocent.

Daniels assured the jury that she didn’t care about the money; she only wanted to get her story about Trump out to the public. If that were true, why did she sell her story for cash in exchange for remaining silent?

It’s important to note that Daniels does care about the money. Beyond advancing her career and cashing in wherever she can. There is a previous defamation lawsuit between Daniels and Trump. She earlier lost that defamation lawsuit and was ordered by the courts to pay him more than half a million dollars in legal fees —a sum she still indignantly refuses to pay.

Bragg’s team of prosecutors called this untrustworthy witness for only one purpose: to slime Trump. That’s obvious. Because none of what she had to say on the stand has anything to do with the charges against Trump —charges that unto themselves are a stretch in most cases to be considered as a crime. Most cases of falsifying business records are directly related to charges of theft or embezzlement which are not on the complaint. Witnesses have already testified that there was nothing false about the business records. They were legal payments in exchange for a legal document that was negotiated by two lawyers and booked as "legal expenses" and “consideration” because that is what they were. The Trump Organization accountant who handled it corroborated it as exactly that when he testified.

So, why did Daniels testify? She was never privy to the internal accounting of the payments she received from Trump’s then-attorney, Michael Cohen. She adds nothing to the case except to smear him with humiliating stories about her supposed transient encounter. Her testimony works only to malign and vilify Trump. To this end she did her job with gusto, though under cross-examination she withered, admitting that she despised Trump and called him an “orange turd.” That kind of bias does not add to her heavily tarnished credibility.

At one point Daniels offered some very sexually graphic details forcing Judge Merchan to instruct the jurors to ignore some of the most salacious testimony. That is like trying to un-ring a bell. The decision by Judge Merchan to even allow such testimony is so appalling that it prompted Trump’s lawyers to demand a mistrial. But since the judge was instrumental in creating the legal blunder, he naturally denied the motion which will surely be a bright red flag for the defense on appeal. Neither the facts nor the law support Bragg’s anemic case. So, he has taken to defiling Trump in court with the hope that jurors will convict him over a smutty story bereft of criminal wrongdoing.

For Alvin Bragg’s team of prosecutors, the measure of success in this episode of Lawfare depends on what the target is supposed to be. If the goal was to prove that Trump falsified business records, they have failed miserably. There is also a lot of room to question to what degree, if any the prosecutor prepared their witnesses. If the goal was to get Trump in front of a judge and jury, then throw muck until something sticks, they may have succeeded. If the jury hates Trump enough, they may feel like finding him guilty regardless of evidence or realistic charges.

If the goal was to use the legal system as a weapon to keep Trump (the defacto Republican nominee) off the campaign trail and muted with gag orders, they may have succeeded.

As with all good tabloid television, as long as people are watching, keep writing more drama. There is still Fani Willis in Georgia and the Mar-a-Lago classified documents in Florida. Presumably, if you throw enough stones even a blind man can eventually break a window. Realistically, the classified documents are a legitimate charge, but you would have to also prosecute Hillary Clinton, Joe Biden, and a host of others who have all committed the same offense.

All of this still circles back to the disturbing behavior of Lawfare. America has for most of its history been the inspiration for democracy across the globe. In the modern era, we have even sent observers to other countries to monitor their presumed democratic processes. We have unfortunately observed many countries where those in power use selected prosecutors and judges to hinder or eliminate their competition through the lens of the courts. This is commonly referred to as a “Banana Republic.” I would like to believe we have not become a banana republic, but it is hard not to have doubts.

At least, unlike Russia….it doesn’t look like Trump is going to mysteriously die in a Siberian prison.

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Alan Alda
Begin challenging your own assumptions. Your assumptions are your windows on the world. Scrub them off every once in awhile, or the light won't come in.
 
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