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Draft Jury Charge:
United States of America
v.
Donald Trump, aka "Old Bone Spur," aka "Crocodile-in-Chief,"
aka "Big Crock,"
Donald Trump Jr., aka "Little Crock,"
Jared Kushner, aka "Baby Face," aka "Little Javanka,"
aka "The Disposable One,''
Paul Manafort, aka the "Laundryman,"
and
Unindicted co-conspiring Swamp
Creatures 1-20
Ladies and Gentlemen of the
jury: It is customary for judges to
charge the jury after all the evidence is in. But these are exceptional times,
and they require exceptional flexibility. I have therefore decided to give you
an interim charge, and may deliver one or more additional interim charges as this case progresses. I
estimate that we are about half way through.
There are two elements you
must integrate in reaching your ultimate verdict: the law, and the facts.
The legal principles embedded
in this charge are the foundation stones of Article III of our Constitution. I
will explain them to you. You must accept them.
The determination of the facts
is exclusively your province, but I charge you that you may focus only on real facts, not "alternative"
ones, "possible" ones, or "could be" ones. Only old
fashioned actual facts.
In the process of finding the
facts and applying them to the law, your conclusions may not be based on
political, religious, or any other kind of prejudice or predisposition. It may
be difficult for some to abide by this rule. This court is not unaware of the
bitter political divisions in our country today, but it is vital for the
survival of our democracy that the rule of law prevail. That can happen only if
you demonstrate that this jury is the conscience at the core of our Republic.
There are a number of counts
to this indictment, and this interim
charge will deal only with those related to the accusations against these
defendants respecting the charge of foreign interference with our 2016
election. As I have indicated, I may deal with the obstruction of justice,
campaign law, tax, money laundering, and other categories of charged crimes in a later instruction.
In the matter of Russia's
interference with the election, each defendant is charged with:
1. Conspiracy to defraud the
United States of America,
2. Aiding and abetting the commission of a felony,
and
3. Misprision of felony.
The Facts:
While finding the facts is your province, I exercise my discretion to remind you of the facts that have been
elicited thus far.
· As far back as 1986, Trump was keenly interested in
getting Russian government approval of a Trump Hotel across the street from the
Kremlin. The project never materialized.
· In a 1996 and 1997, at news conferences in Moscow and
New York, Trump announced the plans for a "Trump International
Complex" in Moscow that would include skyscrapers and hotels. He said he
was working with the Mayor of Moscow, Luri Luzhkov, to get the necessary approvals
for the project. Trump said, "We have an understanding."
· As to Luzhkov, a cable sent by the American Ambassador to Russia described him as follows: "Corruption in Moscow remains pervasive with Luzhkov at the top
of the pyramid. He oversees a system in which it appears that almost everyone
at every level is involved in some form of corruption or criminal
behavior."
· Despite the failure of these projects, in 2008,Trump
made a speech in Moscow in which he revealed plans to build condos in Moscow
and other Russian cities.
· Russian investment saved many Trump projects from the
economic meltdown of 2008. In fact, Donald Jr. admitted: "Russians make a
pretty disproportionate cross-section of our assets.... We see a lot of money
pouring in from Russia."
· Trump visited Russia in 2013, at which time, RT, the
Russian propaganda news agency, reported his statement that he had plans to do
business in Russia and was in talks with several Russian companies to build a
Moscow skyscraper. Trump made a speech at a dinner in his honor and said,
"Trump-Tower Moscow is next!" (His host was one Aras Agalarov. Remember
that name.)
· In 2015 and 2016, Trump was still working on the
possibility of a Trump building in Moscow. At that time, Trump's personal attorney,
Michael Cohen, was an Executive Vice President of the Trump Organization. Cohen
was communicating with one Felix Sater, a Russian born U.S. citizen, who had
helped procure Russian financing of Trump Soho. Sater and Cohen were working to
get Russian approval for the Trump-Moscow project, and Cohen received an email
from Sater which said, in part, "We will get this done, I will get Putin on this program and we
will get Donald elected," and "I know how to play it ... our boy can
become President of the USA and we can engineer it. I will get all of Putin's team to buy in on
this."
· No
correspondence exists rejecting any part of Sater’s plan. To the contrary, what does exist is an email from Cohen to Putin's personal assistant,
seeking his help in moving the Trump project
forward, and informing the Russian official that Trump had signed a letter of intent.
· Nevertheless, during the campaign, Trump repeatedly
said his organization "had never
had any real estate holdings or interests in Russia," and that he had
"nothing to do with Russia.''
· You, as jurors,
are the sole determiners of the credibility of witnesses in this trial. If you
find a witness has willfully given false testimony on any subject in this
trial, you are free to disbelieve and disregard his testimony on any and all
subjects.
· During the 2016 campaign, Donald Trump often said
positive things about Putin, that he met him, he was a nice guy, and when it
was put to him that Putin was a killer, Trump defended Putin by saying,
"Well, we kill people too." He praised Putin as being a "strong
leader."
· On June 3, 2016, Donald Trump Jr. received an email from
an agent for Aras Agalarov's son. (I told you to keep Aras's name in the
forefront of your memory!) The email said Russia's Crown Prosecutor told Aras Agalarov
that morning that Russia could provide Trump with "information that would
incriminate Hillary... . This is
obviously very high-level and sensitive information but is part of Russia and
its government's support for Trump."
· Trump
Jr. neither repulsed the probe, nor reported it to the FBI. He responded, "I love it."
· As a result of that and subsequent communications, Donald
Jr., Jared Kushner, and campaign chairman Manafort met with a Russian lawyer
who was an informant for Putin's Crown Prosecutor.
· The meeting was held at Trump Tower. While Trump Sr.
says he was not made aware of the meeting at that time, Trump's close advisor and
later White House official Bannon said, "There is zero chance that Donald
Jr. did not walk these jumos up to his father's office on the 26th floor."
The Trump advisor called that meeting "treasonous" and "unpatriotic."
· The participants kept the meeting secret. When the
fact of the meeting was later revealed in the press, Donald Jr. lied about it,
said it was about orphans, and President Trump, along with his communications
chief, Hope Hicks, prepared and issued a public statement to that effect.
· The President knew his statement was a lie. Before it was issued, he, Hicks, and the spokesman
for Trump's legal team, Mark Corallo, had a telephone conversation in which
Corallo advised against issuing the statement because the emails setting up the
meeting made clear the real purpose of the meeting was to trash Hillary and
help Trump win the election, and when those emails got out, the President would
be exposed as a liar. Hicks replied, "Don't worry, those emails won't get
out." Trump did not dispute Hicks.
Corallo, however, fearing involvement in an obstruction conspiracy, told them
to talk to their lawyers, ended the conversation, wrote a contemporaneous memo,
and resigned.
· When Donald Jr. learned the New York Times was about
to publish the emails, he published them himself.
· The Russians did, in fact, interfere in the election
in favor of Donald Trump, and when President-elect Trump was so informed by the
U.S. intelligence services, his only reaction was "How can we spin this?"
As President, he gave no orders to our intel services to do anything about the
Russian interference.
· There is also a news report from the McClatchy news
service, quoting several unnamed sources, that Cohen attended a 2016 meeting in
Prague with Russian officials during which stealing Clinton and Democratic
Party emails was the subject of conversation.
· Trump acolyte Roger Stone made a public statement
indicating Democratic Chairman Podesta would soon be "in the barrel."
The next day, Wikileaks published stolen Podesta emails, that were harmful to
the Democrats. U.S. intelligence services say those emails were obtained by a Russian
operative. RT then paid to plug the
emails on Facebook.
· There is a great deal of evidence of Trump team contact
with Russia during the campaign: I have already mentioned Donald Jr, Kushner,
Manafort. And there is also Page, Gates, Papadopoulos, as well as Cohen.
· Subsequent to the election, Trump appointees met with
Russian officials before the inauguration, but lied about it to Congress (Sessions)
and to the FBI (Flynn.)
· Subsequent to the inauguration, Congress voted for
sanctions against Russia for its interference with our election. The vote was
almost unanimous --only five congressmen
did not vote for the bill. President Trump nevertheless refused to apply
the sanctions, saying that in his opinion "they were not necessary."
· Subsequent to his inauguration President Trump asked
the head of the FBI to "go easy" on Flynn, who had lied to the FBI
about his visit to the Russian Ambassador.
· Subsequent to his inauguration President Trump fired
the head of the FBI because of his investigation into "the Russia
thing" after having lied by saying it was for other reasons. He has since
threatened, and once given an order, to fire Mueller as well.
· We have fragmented testimony to date about a Russian
oligarch's indirect payments to the President's personal lawyer, but that
testimony is far from complete and you should hold that in abeyance for now.
Ladies and gentlemen of the
Jury, a reminder, this is but a fraction of the evidence on but a fraction of
the indictment, but to help you digest the rest of the information as it comes
in during the balance of the trial, I will now inform you of some of the legal
principles and how they relate to these facts.
Conspiracy.
There is no doubt the
Russians interfered in the election. The question in this count is whether the
defendants conspired to bring that about. Conspiracy is an agreement, an
understanding. But it need not be in writing, or even set out in words. It can
be an unspoken understanding. Because conspiracies are by nature characterized
by secrecy, you may infer its existence by the circumstances of the case and
the conduct of the parties. Actions speak louder than words. Presence at a
meeting can be evidence of conspiratorial membership. Circumstantial evidence
may be sufficient to convict. The understanding may be tacit. A verbal
expression of the understanding is not necessary. You can infer such an
understanding by the conduct of the parties. For example, if a meeting
occurred, and a party kept it a secret and later lied about it, you may infer
that party did so because he realized the truth about the meeting would
incriminate him as a conspirator. Use your common sense.
To establish a criminal
conspiracy the government must prove an overt act that advances the purpose of
the conspiracy. But that act can be legal on its face, and still be criminal in
the circumstances of the case. For
example, lying about a meeting may not be a crime in some circumstances, but in
others it may be part of a criminal conspiracy. Similarly, the filing a
required report that fails to report attendance at a meeting when such a report
is a legal requirement may be an overt act. The same is true of attending a
meeting.
All members of the conspiracy
may be convicted if he overt act was committed by only one member.
You may infer motive and
intent from the acts and words of the defendants. For example, when a defendant
is offered a plan to corrupt an election, and does not immediately firmly reject
the plan, or report it to federal authorities, you may consider that failure as
evidence of his desire to proceed with the plan. That is especially true if the
defendant actually attends a meeting with a person who proposed the illegal
scheme.
Aiding and Abetting:
Whoever aids, abets, or
counsels, or induces or procures the commission of a crime is punishable for
aiding and abetting. If you find a defendant did something to help make the
crime succeed, that is aiding and abetting. Any affirmative conduct for
bringing about the crime is a felony.
Misprision of Felony:
Anyone who i) knows a federal
crime has been committed, and ii) fails to notify the appropriate federal
authorities, and iii) deliberately takes affirmative steps to conceal that
crime, is guilty of Misprision of felony.
In this case, items i) and
ii) have been established beyond any doubt. As to item iii), whether a
defendant has taken affirmative steps to conceal participation in that crime,
consider all the facts, especially
the liability of the
President, Donald Jr., and Hope Hicks, in publically lying about the content of
the Trump Tower meeting with the Russians. Think too about the lies Trump told
about his reasons for firing Comey, at a time when Trump had already decided to
fire Comey because of "the Russia thing."
..............................
But not yet, children, cause
we ain't nearly done yet. There is plenty more to come, so just chew on all of
the above while the case develops. My faux judicial instincts tell me the best
is yet to come.
N.B. And for new readers, if you haven't done so, check out my memoir, The Client Decides, available on Amazon and Kindle. Among the experiences I write about are my representation of Vice President Spiro Agnew and how his resignation saved the country from a constitutional crisis that is relevant to current issues. I also report on my litigation opposition to Donald Trump, my prosecution of the disbarment of Roy Cohn, my representation Jackie Onassis in a precedent-making privacy case, my representation of Planned Parenthood and physicians whose lives were threatened by anti-abortion extremists, and lots more.