More Sinned Against Than Sinning

Well, it was pretty much expected. Nonetheless it came as  a bit of a kick in the guts to this non-US citizen.  The immediate temptation was to call it a day of shame for America.  But, on reflection, it’s not much different to most other days in which the ‘swamp’ has been degrading the US almost since the day President Trump was inaugurated.

Trump will appeal. I am not a lawyer so I am unqualified to comment on the legal aspects and ramifications of this process, but I would like to offer the perspective of the man in the street. According to New York law firm Spolin and Dukes:

In non-death penalty cases, a defendant found guilty after the trial has an appeal as of right to the intermediate Appellate Division of the trial court (supreme court) if the offense was a felony.

The appeal may challenge an order of the court or the judgment of conviction. A defendant may appeal a sentence as of right if the appeal is based on a claim that the sentence was 1) harsh or excessive or 2) invalid as a matter of law.

A defendant found guilty may seek permission to appeal to the intermediate Appellate Division if the appeal is based on 1) a denial of a motion to set aside or vacate a sentence; or 2) a claim that the sentence imposed was harsh or excessive even though made in accordance with a plea agreement; or 3) a challenge to a sentence not based on a claim that the sentence was harsh or excessive or was invalid as a matter of law.

An appeal from a decision of the Appellate Division goes to the New York Court of Appeals. However, no appeal as of right exists.


While most states will not consider issues of fact on appeal, the intermediate Appellate Divisions of the state courts have the constitutional authority to consider the “weight” of the evidence. This means that the Appellate Division may examine the record and sit as a second jury, make determinations on issues of fact, and dismiss one or more counts in an indictment. Such reviews are rare, but if the evidence presented at trial overwhelmingly supports the conclusion that the defendant was not guilty of the offense with which he was charged, a defendant should appeal the conviction based on the weight of the evidence. The New York Court of Appeals does not have the authority to consider the weight of the evidence, and the decision of the trial court is final on this issue.

It would seem to me, therefore, that Trump’s appeal must be based on the law.  That would include things such as the exclusion of exculpatory evidence, acceptance of inadmissible evidence, judicial misinterpretation of the law etc.

I have read the judge’s directions to the jury, and, with my very limited knowledge, they seem OK to me.   But I suspect Trump’s lawyers will find fertile ground to sow in relation to Judge Merchan’s role in this gross miscarriage of justice.  Roger Franklin has deftly exposed many of the questions hanging over this, let’s face it, Democrat apparatchik.

Quadrant readers would be aware that, although this was termed the ‘hush money trial’, Trump was not charged with paying hush money, which isn’t a crime.  He was charged with a series of misdemeanour offences for which the statute of limitations had run out.   In order to charge Trump with a felony, these misdemeanours had to be manipulated into a conspiracy to defraud the American public in relation to the 2016 election. From my perspective, the nub of the case goes to this instruction to the jury from Judge Merchan:

Under our law, a person is guilty of such a conspiracy when, with intent that conduct be performed that would promote or prevent the election of a person to public office by unlawful means, he or she agrees with one or more persons to engage in or cause the performance of such conduct.

To me it seems a stretch of interminable length to infer that Trump’s desire to keep an embarrassing pecadillo from the public gaze, materially promoted him as a candidate in the election.   I suspect that, primarily, Trump, naturally, would have wanted to keep this from his wife, and from the public, in order to protect his wife.  He probably thought, ‘if it comes out it won’t help in the election either’. 

Had the affair come out, he might have lost a few votes.  But sexual adventures never harmed Bill Clinton or many other successful politicians, including our own Bob Hawke.  Trump would have known this.  He might have seen this as a personal embarrassment but irrelevant to his capacity to perform the role of President.  I am guessing the number of American politicians who have concealed things of this nature would fill New York’s Yankee Stadium.  And how many politicians routinely condemn the use of personal attacks on the part of their opponents?

Or to put it another way, these misdemeanours only became felonious when they were committed in furtherance of an actual felony.  In this case, what was the crime?  Concealing from voters a personal indiscretion unrelated to the actual job he was aspiring to?  Is there a statute in the State of New York to this effect?

To turn this into a ‘stolen election’ issue is, effectively, to legitimise the use of personal attacks in political campaigns.

And how supremely ironic that the denial by then candidate Biden of the Hunter Biden laptop, and the disinformation by former intelligence officers that it was Russian misinformation, probably had the same effect that Trump has been found guilty of attempting to engineer.  

What are the chances some zealous prosecutor will now come after Biden on the same basis?  Or Clinton for the Russiagate hoax?  Or the cabal of former intelligence officers who dismissed the Hunter laptop as Russian disinformation?  Pigs might fly.

It seems to me that a common-sense reason to overturn this conviction was that it was based on a bad-faith prosecution, and that the putative harm that came from Trump’s deception was so speculative, and so far in the past, that it could never justify the damage this case has wrought upon the rule of law in the United States.  How many people were prosecuted for the countless ballot box infringements and irregularities uncovered in the 2020 election?

DA Bragg was elected on a platform to ‘get Trump’ and he overturned a number of previous dismissals of the case based, apparently, on a new and novel interpretation of US jurisprudence.  Did he stop for one moment to consider that his first duty is to the maintenance of justice and to the rule of law, not to bagging a high-profile scalp?  Does he understand that justice is often a balancing act, in which the public good must predominate? 

I don’t know if that is a consideration the US appeals courts can take into account but I bet, at least I hope, that many American voters will.

51 thoughts on “More Sinned Against Than Sinning

  • Podargus says:

    New York has had an outstanding reputation for political and other corruption for at least 100 years. The Trump trial is just another example of that corruption and should be treated with the contempt it deserves.
    All the legal argy bargy will be just so much hot air after November. Provided that the dirty paws of the Demorats can be kept away from the electoral system, such as it is.

  • Jack Brown says:

    A banana Republic is the US. Oligarchs contesting power.

  • Peter OBrien says:

    Here’s a hypothetical. If Trump had committed an actual crime in New York (eg having sex with a minor) and managed to hush it up by quietly paying the victim off with cash, and it subsequently came to light, he could rightly be charged with statutory rape. But could he be charged with election interference? What statute would allow that?

    • STD says:

      Forgive me…..are you talking about electoral interference?……….Was Trump trying to shut down potential or kinetic interference?: regardless of the false, or otherwise, of the now publicised allegation of what presumably was a private consensual act. Was the lady in question (moral efficacy) potentially interfering with a democratic electoral outcome?……….extort………And who and which parties would have benefited from instigating this route?…….Who would want to stymie Trumps chances?…… How were Trumps chances looking!… And yes was Trump in effect trying to prevent electoral interference?
      Sex in deed…….In matters of importance it’s appearances that surely count….all politician’s know that truth. Damned if you do, and if you don’t?

  • ianl says:

    ” … this was termed the ‘hush money trial’ …” [part quote from this article]

    Termed deliberately so by the corrupt MSM (including those in Aus) to try and poison the well of public opinion.

    Called disinformation. Kommissar Grant will be right onto this, I’m sure.

  • brandee says:

    Much obliged to Peter O’Brien for this analysis and for his many previous astute comments on various subjects. How clever to craft the term “mattress actress” as appeared in the prelim.

  • Daffy says:

    The US is a classical republic…like Rome; and so, like Rome, is moral gutter of intrigue and corruption.

  • Citizen Kane says:

    All thoughts of appeal through the NY State courts is marred by the fact that it is now clearly established that this Judiciary are party political corruptocrats, more or less across the board.

    The Trump team needs to focus on winning the election, for which he is still eligible to contest. Once President, this legal stitch up will be deposited in the trash can of history, where it always belonged, hopefully taking its engineers with it. It should not act as a distraction as is hoped by the Democrats but rather as a catalyst for change.

    The people will decide on November 5.

  • Katzenjammer says:

    An alternate outcome – Trump announces he won’t contest the verdict because he wishes it to stand alone as the single conviction of a past president, creating a demand for historians to research and reveal the underhand legal manipulation and far worse corruption by the sitting president. Well researched historical knowledge in the future of events today can’t be manipulated by the current key holders of the swamp.

  • Helmond says:

    I get it. The NY justice system is full of Pinkos, Commies and Marxists, and all out to get the man who could make America great again.

    Just a minute. Didn’t the jury unaminously find Trump guilty on all charges?

    Are all you Trump sucks trying to tell us that the jury, all twelve, were all Pinkos, Commies or Marksists too? Or too stupid to twig to trumped up charges.

    If Trump’s lawyers were half way competent they would have made sure at least one Republican voter was on the jury.

    But chances are that more than three jurists usually voted Republican, and apparently, they all thought Trump’s defence was a crock of shit.

    OK, I get it that Biden is too old, but Trump isn’t a whole lot younger. It is deplorable that Biden and Trump are the best presidental candidates that the US can find; the Democrats too craven to tell Biden to call it a day and the Republicans prepared to win with a lunatic than lose.

    To all you conservatives, those who really could run Australia properly if given the unlikely chance, would you like to have Trump as a dinner guest at your place? If so, I suggest that you don’t leave Trump alone with your spouse or daughter while you go look for another bottle of wine or to take a slash.

    Maybe being a womaniser does’t matter. Trump isn’t the first president to hsve liked a bit on the side, and I can live with that.

    It’s not that. Can you Trump devotees look at him on TV and not think that you are watching a clown? Lots of rat cunning, but fundamentally a lunatic.

    I’m pretty right wing, but the support of Trump by many writers in Quadrant is a clear indication that conservatives will never be a force in Australian politics any time soon. Sorry, you’ve lost. Get used to it.

    • ianl says:

      So said Franz Kafka in The Trial.

      Perhaps you would care to delineate the actual, specific crime rather than mouth off. Be specific; arm waving is not evidence.

      If a juror or two had voted to aquit, they would have been doxxed by at least one of the others (I’m tempted to think the judge himself may have made sure of that), placing them in real danger. Consider that before jerking your knees around.

      The bureacracies (including those from organisations “too big to fail”) need shoving back into their holes since no other accountability method works. To do that needs a rude, uncouth but determined personality. Find another one then.

    • STD says:

      Helmond, Helmond, Helmond: I for one trust no one- all men given the chance would ride a gate if you swung it, or a rattle snake with hips for that matter.
      Who is more profane Trump the womaniser or a Catholic who advocates for the aborting of viable babies in their mother’s womb? Which one would you have …….go on pick your favourite hypocrite.
      By the way Trump is not senile. You may not like his methods, but he is smart- remember he got those sophisticated European parasites to step up to the NATO plate. These people in some cases, such as the French, deplore America, the very country that saved their cowardly backsides not in one but two World Wars that were of European making (stupidity and inept foresight).
      As for lunatic-did he get America into any armed conflicts? Was the lunatic American economy going gangbusters before the Covid-19 arrived and the free market lunatic shutdown the borders to prevent American deaths albeit 4-5 weeks after the Chinese knew the lunacy of the treachery afoot.
      Again, as for lunatic, he did tell that rissole Putin not to invade Ukraine…” Don’t do it Vladimir.. don’t do it”, and he didn’t till Biden the Marxist arrived on the scene. Again his methods maybe unorthodox and yes he has rat cunning and yes he may unnerve the Marxist lowlife scum, by making them think he is volatile and unpredictable to do something insane too.

      • William says:

        STD – your reference to the ‘Catholic’ advocating abortion prompts my reflection on the power (or perhaps lack thereof), of the main stream media as ideological propagandists. For at least the last 20 years, but, in reality, my whole life, the main stream media have performed a role of demonising the Catholic Church and minimising her virtues (if there are any, which, according to them , are non-existent).
        In this climate, and with this concerted and very unified public disdain, nevertheless, political animals such as Biden and Pelosi, who, we all know, would claim to be cannibals if it got them votes, not only claim to be ‘Catholic’ but do ostentatious Signs of the Cross at pro-abortion rallies.
        While this does not reveal a level of hypocrisy that we were unaware of, it does reveal something about the power, or lack of, the press as ideological purveyor. – something I find quite intriguing.

      • Geoff Freer says:

        I totally agree STD. A fool doesn’t build a business empire like Trump has done. I would really like to hear his views and get an insight at dinner about his business acumen and that achievement. Running a country to me is equivalent to running a gargantuan business empire. In business you are only as good as the people around you.

        And prostitutes, like anybody else, want to get paid for their work. Funny that. Prostitutes haggle over price, so I have been told. Donald Trump now knows this only too well.

        I remember a few years ago a young, single, attractive female co-worker was openly drooling over a local married motel owner. Out of interest, I asked her would she sleep with him if he paid her say, $5,000.00. For sure she said enthusiastically. . To which I replied :”Now we have established what you are let’s haggle about the price” (Enter Stormy Daniels centre left.)

        By the way she didn’t talk to me for a long time after my comment.

        • lbloveday says:

          The original character initiating the proposal in this anecdote has been assigned to George Bernard Shaw, Winston Churchill, Groucho Marx, Mark Twain, W.C. Fields, Bertrand Russell, H.G. Wells, Woodrow Wilson…….
          I first heard it in a film, but can’t recall which one.

    • Phillip says:

      Helmond, why do you consider Trump a lunatic? Do you have any of Trumps business skills to maintain a Property and Investment empire? Have you ever been President of the USA and endeavoured to clean up the scum setdown by Clinton-Bush-Obama? Have you established peace in the Middle East?….. The current President ‘old dementia Joe’ has never completed a days work in private enterprise, has never had to worry from where his next weeks wage will come from, has a family of delinquents, promotes legislation to segregate upon race and skin colour and froths at the mouth in pursuit of aborting the innocent child.
      And you consider Trump a lunatic !
      Maybe Helmond you have poor eyesight, I don’t know, but you sure don’t seem to be able to see the light from the dark.

    • Sindri says:

      “Just a minute. Didn’t the jury unaminously find Trump guilty on all charges?”
      Too exhausted to really weigh into this conversation, and in any event I’m not a Trump fancier. But a jury unanimously convicted George Pell, when it was plain as a pikestaff that the criminal standard of proof had not been met. I have no doubt that a relative unknown in Pell’s position would have been swiftly acquitted. It’s a disturbing phenomenon, juries being blindsided because an odour of moral opprobrium hangs over a defendant. Having regard to the tortuous nature of the charge and the dubious evidence in support of it, I think that’s what happened here.

    • Roger Franklin says:

      Helmond, you don’t know New York, especially Manhattan. This is where the New Yorker film critic of the day, Pauline Kael, said she doubted Ronald Reagan was legitimately elected becausee she “didn’t know ANYBODY who voted for him.” And that would be right. As I note, Hillary carried the island with 92% and Biden with 87%.

      The other thing of which you’re evidently oblivious is the role Merchan played in jury selection, repeatedly overruling the defence’s challenges.

      You may well dismiss Trump is a lunatic, but even total screwballs are entitled to a fair go in court. Trump didn’t get anything like that.

      Trump is a combination of Don Rickles and Winston Churchill. Try to overlook the former and focus on the latter.

    • Citizen Kane says:

      My spouse would be safer with Donald around for dinner than my 11 year old daughter would be from Joe and his offer of ice cream. My moral compass would take a womaniser over a paedophile – yours clearly prefers the later.

      Prey tell, what have Trump backing conservatives lost- he leads all the swing state polls and the national polls.

      The people will decide on November 5.

    • Susan K says:

      Read Greg Sheridan’s excellent piece in The Australian. Never a fan of Trump – to put it mildly – he objectively dissects all aspects of the rampant corruption of justice in this Stalinesque show trial.

    • jackgym says:

      I presume you were wearing your cape when you wrote that?
      As a Super Dope.

  • Bron says:

    What moral opprobrium hung over Cardinal Pell? Just plain hatred of the Catholic Church mate.
    All this hyperventilation about the Donald.
    Democracy is finished, Western Civilisation is kaput. Give me a break, you oldies are a lot of bed-wetters.
    I agree with Helming 100%.
    And, if the world is going to end, Melania can always put her slippers under my bed in safe Australia.

    • Sindri says:

      Dream on Bron
      But I’m not sure anyone’s safe in Australia, not in the longer term.

    • Geoff Sherrington says:

      Safe Australia?
      Try this view. Many folk say the Nov 2024 US candidates are of poor quality. Now, I have met many past Australian PMs since Sir Robert and that close exposure has taught me that all except Sir Robert lacked adequate desirable attributes for that office.
      Australia, now and forseeable future, is most unsafe with respect to political leadership. I have mixed with many prominent Australian business leaders with superior properties (maybe not being lawyers).
      Our problems include a lack of volunteers to lead our political scene because it is in such poor condition that most time would be spent on boring repair rather than introduction of stimulating, better ways.
      Geoff S

      • Ian MacDougall says:

        Geoff: I agree, particularly in relation to Ming’s record of military service; swanning around Melbourne in the uniform of a captain in the Melbourne University Rifles, until a certain event in Europe in August, 1914, coincided with a decision on his part to resign his commission and resume civilian life. (His fellow-Liberal Sir Wilfrid Kent-Hughes described all that in the memorable phrase: “A most promising military career, unfortunately cut short by the advent of war.” Needless to add, Menzies and Kent-Hughes detested each other.)
        Menzies once said that if he had not gone into politics via the Law, he would have become an actor. Which he did. He crafted a character and role for himself, complete with a plummy pronunciation not found before or since around the scene in Jeparit, Victoria, his childhood home-town, and he played that role well. At any handy Jeparit location, he would give public speeches, with intent to inspire and uplift the passers-by with the contents of his mind, and in which endeavour he was no doubt in part successful. And he went on to achieve that thespian ambition, and in a big-time way.
        Some saw him as a hero; others as a charlatan, mountebank, poseur and fraud. The truth quite possibly lies somewhere in between. And then again, possibly not.

        • sabena says:

          Ian you might get you facts right.Menzies did not resign his commission-he held it till the mandatory period of war service was over.He did not volunteer for overseas service at the request of his parents.He already had 2 brothers serving in the AIF and his parents wanted him at home to assist the family finances and because his father was in poor health:see Robert Menzies:A Life A W Martin 1993 at pp29-30.
          Those facts do not support your attempted slur of him.

          • Ian MacDougall says:

            sabena: “He did not volunteer for overseas service at the request of his parents. He already had 2 brothers serving in the AIF and his parents wanted him at home to assist the family finances and because his father was in poor health…”
            In that case, and with all that already going, he should never have joined the Army in the first place.

      • pmprociv says:

        GS, you’re just confirming that, perhaps now more than ever before, one must be either bad, or mad — or, preferably, both — to seek high office. Why on earth would a normal person even be interested? I wonder what the Republic of Australia crowd make of all this?

  • Ian MacDougall says:

    And then there is the inimitable Marina Hyde’s take on it all, headed So Trump moves closer to jail and nearer to the White House. This is our world in 2024. Find it in the (caargh! cough! splutter! hawk! spit! chunder!) Grauniad.

    • STD says:

      Is there a doctor or an exorcist in the house? Ian is choking and I fear taken ill on impartial profanity served by the Guardian……hang in there Ian.. we will save you.

  • Bron says:

    Helmond not Helming. The keypad on my phone seems to have a mind of its own. Cost me a medical degree a few comments ago.
    Melania I await your call.

  • call it out says:

    I don’t see much daylight between the sexual morals of Hawke, Clinton and Trump. But the left always ignore the sins of their own. Even the feminist left can’t bring themselves to take a clear look at Hawke’s moral choices.

  • William says:

    Helmand: This response is an example of the conflation of images that seems to serve as rational discourse at the moment. Whether the Quadrant commenters are or are not Trump supporters is not to the point in regard to this article, and to sweep it up into, (yet another), personal attack on Trump (would we have him over for dinner and leave him with our daughters?) is dissembling.
    The issue is a blatantly corrupted legal process and, as a lawyer, I can attest to the extremely serious ramifications that will almost certainly result from the corruption of the system of justice that supports our democracy. Trump’s trial was obviously an example of political opportunism in true Soviet style and the use of the legal system in a farcical show-trial is extremely concerning. Jurors are susceptible in many ways to pressure -(look at the Pell trial for that one), and for you to frame the verdict as sound by invoking statistical chances of their political affiliation is simply more deflection. The sitting judge has discretion regarding the evidence admitted and his summing up is extremely important to the jury deliberations- and all are scrutinised and appellable by the way for these reasons.
    I am not a fan of Trump at all – but one does not need to look to Trump to be appalled at the travesty that has prevailed in the naked show of institutional corruption in this case.

    • Elizabeth Beare says:

      I am a fan of Trump. I never liked him before he ran for President but I was impressed with his performance and achievements in the role 2016-20. I think the ‘fortified’ election was certainly stolen by all sorts of electoral chicanery and I deplore the Democrat White House beating up a fake ‘insurrection’ for which innocent people are still incarcerated without trial. Revelations of Hillary Clinton’s payments for the Steel Dossier outrage and other outrages applied as they tried to impeach him during his Presidency, including trying to knock out his Supreme Court choices by sexual lawfare, were compounded by the ‘retired’ CIA members declaring the Hunter Biden laptop was a fake, freeing Biden from campaign pressures over it. Since then an unrelenting pressure of fabricated criminal charges has been placed on Donald Trump, none of which has been real nor proven. Meanwhile, Biden’s holding classified documents in his open garage receives no charge because he is too old and with too poor a memory to successfully prosecute. For goodness sake, go figure all of this.

      I have female friends who like some above, male and female, have taken the MSM negativity and fake ‘accounts’ of Trump’s behaviour entirely to heart, along with all of the most off-beam and terrible photographs they can find of him. He is terrible, a bad businessman, a sexual predator, a liar (he lies, they say, but they can’t say about what!), he’s a horrible person, he’s crude, and of course you couldn’t invite him to dinner with your wife and daughter present – yes, that old saw comes up often. Yet I see Trump as sensitive, humorous, informed, and at times quite charming. Go figure? It’s because I look wider than than the daily media for my view on things.

      Two things I wish the Republicans would do – firstly, bring forward the date of their Convention and appoint Trump as the Presidential Candidate BEFORE the date set by the gotcha crowd for his ‘sentencing’ (where they will try to remove from him is Presidential Security Detail – moves are afoot to do this and expose him in prison to assassination – and either jail or otherwise hamstring his electioneering). If they had to attack the actual Presidential Nominee, then the Supreme Court might move in to get them on electoral interference.

      The second thing the Republican Party is go hard to get the Supreme Court involved regardless. It is an outrage that a Federal electoral matter has been brought before a STATE jurisdiction. It is also an outrage that the normal procedures ensuring natural justice and judicial impartiality have been flagrantly abandoned for clear political interference in the case of Prosecutor Bragg, who campaigned on a platform of doing exactly this to President Trump, to say nothing of the material above about the very partial selection and not impartial nature of the Judge and his lack of a charge when instructing the jury.

  • Andre Pascal says:

    I think I saw somewhere that the payments were made in 2017, so it was impossible that they could be construed as defrauding the voting public in 2016.

  • Susan K says:

    A lot of waffle here. Either present a fully informed piece -cognisant of US law – or skip the detailed speculation.

  • Watchman Williams says:

    This outcome was always the inevitable fate of someone whose campaign promise was to “drain the swamp”.

  • john mac says:

    You’re not right wing , or conservative at all , golf. The whole world knew of Trump’s peccadilloes before he was elected , and didn’t care , slick Willy setting the bar so low. Insult all the readers here , blissfully ignorant in your smugness. Please excuse my occasional dyslexia.

  • Geoff Freer says:

    Great article Peter O’Brien. Geoff Freer

  • pgang says:

    It’s hard to see 2024 ending well.

    • Elizabeth Beare says:

      Sadly, I agree. Communism looms in the undertow. One hopes for a Trump win, but past experience of externally paid lobby groups ‘fortifying’ elections in the US, as well as the current Demothief lawfare and much MSM complicity, makes one dubious about a Red Wall success for Donald Trump. The US will stagger on of course, but much will be lost, as the Demothiefs plow the country further into left-wing economic and social extremes of policy.

      Notice btw the absence of major rioting at the appalling legal harassment of Donald Trump (well-recognised as such by lawyers across the political spectrum) following this Kangaroo Court ‘conviction’. Conservatives don’t riot. However should some major revulsion by voters provoke a Donald Trump win, then watch America be set afire again by rioters, just as it was during the left-wing BLM riots. And also watch the refusal of Demothiefs to acknowledge the win as legitimate – their current activities suggest that they are attempting to undo Trump’s win in 2016, hoping to declare it illegitimate as a favor to sore-loser Hillary Clinton, who has never ceased from calling it that.

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