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Jun. 12, 2024

The Trump verdict

The jury in New York made clear that no one, not even a former president, is above the law.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).


The political furor and media coverage over the conviction of Donald Trump in New York state court have obscured the legal issues and their implications. The attack on the legal system by top Republicans has been fierce and shameful. But the defense of the verdicts, and why they matter, has been surprisingly muted.

Speaker of the House of Representatives Mike Johnson said that the verdict was “a shameful day in American history” and that Trump’s conviction was “a purely political exercise, not a legal one.” Steve Scalise, a Republican leader in Congress, said that America’s legal system was operating like a banana republic. Florida Governor Ron DeSantis compared the process to a “kangaroo court.” Florida Senator Marco Rubio said “This is a quintessential show trial. This is what you see in communist countries. This is what I grew up having people in the [Cuban exile] community tell me about. It happened in the days after the Castro revolution.”

Some of the criticisms are patently wrong. Donald Trump has repeatedly said that Joe Biden was responsible for the prosecution, when from the outset – and it began when Trump was president – it was litigated by the New York County District Attorney. It was not a case initiated or prosecuted by the United States Department of Justice. Trump and others have attacked the jury saying that he could not get a fair trial because New York City is a liberal area. There is no imaginable principle of law that requires that conservatives be tried in only conservative areas or liberals in liberal ones. It is wrong to impugn the integrity of a jury with no evidence whatsoever to show that it acted improperly.

Much of the criticism of the verdict confuses two questions: Should Trump have been prosecuted for this crime and was Trump guilty of the offenses? As for the former, Trump was prosecuted for causing business records to be falsified for purposes of advancing his political campaign. No one denies that is a felony in New York.

But critics say that falsifying business records is a relatively minor crime and that never before in New York had it been tied to advancing a political campaign. This is the basis for the oft-repeated claim that it was just a political prosecution. This, though, ignores that individuals are frequently prosecuted, in both state and federal court, for falsifying business documents. Michael Cohen went to prison for his role in this scheme. It is unknown whether there were other instances in New York where a decision was made to not prosecute those who falsified business records for political gain. There is a sense that the Trump prosecution is unique because his conduct was unprecedented.

The criticism that this was a minor crime that was not worthy of prosecution misses what the case was about: Donald Trump engaged in fraud to increase the chances of his being elected president. The testimony, even from former Trump aides like Hope Hicks, was overwhelming about Trump’s fear that revelations about the affair with Stormy Daniels could cost him the presidential election. This was the central point of the prosecutor in the closing argument. What made this crime serious, and worthy of prosecution, is that it was committed to change the outcome of a presidential election.

As for the second question – did Trump commit the crimes for which he was charged – not even his staunch defenders deny this. The evidence was overwhelming that Trump ordered that Stormy Daniels be paid $130,000 in hush money to remain quiet about their affair, that Trump caused this to be falsely listed as business expenses, and that Trump did so to gain politically. That is why the jury convicted on all 34 felony counts.

Trump’s defenders say that this opens the door to prosecuting former presidents and urge that Joe Biden be prosecuted if Trump should win in November. But there no evidence that Biden has committed any crime. And if former presidents actually commit crimes, as Trump did, they too should be prosecuted. The historic absence of prosecutions of former presidents likely reflects that there was no basis for doing so, not a misguided policy of immunity for those who were president.

The attacks on the verdict by Trump and top Republicans also obscure the greatest significance of the verdict: they are part of a pattern showing that Donald Trump has little regard for the law. In May 2023, a jury in New York, after a trial, found that Trump had sexually abused Jean Carroll and defamed her, awarding her $5 million in damages. Trump condemned the trial saying it was “rigged,” but again the evidence was overwhelming.

In January 2024, a jury in federal court in New York again ruled in favor of Carroll in a separate suit against Trump. The jury awarded Carroll $7.3 million in emotional damages, $11 million in reputation-related damages, and $65 million in punitive damages, totaling $83.3 million. The jury found Trump had committed sexual abuse and forcible touching.

In February 2024, after a trial, a New York state court ruled in a civil fraud case that former President Donald J. Trump was liable for conspiring to manipulate his net worth and penalized him $355 million.

And, of course, there are the pending prosecutions against Trump in Atlanta and Washington, D.C. for his role in trying to undermine the outcome of the 2020 presidential election and his role in the Jan. 6 insurrection. There also is the prosecution in federal court in Florida for his blatant violations of federal laws concerning the possession of classified documents.

The overall picture is clear and chilling: Donald Trump has little regard for the law. It is not a political accusation, but something proven time and again in court with verdicts.

In this sense, the convictions in New York on all 34 counts are an important triumph for the rule of law. The core of the rule of law is that no one – not a president or former president – is above the law. And the jury in New York made clear that includes Donald Trump.


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