Trumps bad evidence of his alleged legal persecution

One of the biggest stories of our modern politics is former president Donald Trump’s ability to make his base and his political party come along for the ride despite making transparently bad, false and even ridiculous arguments.

The most pronounced example, of course, is his claim that the 2020 election was stolen from him. Trump relied on bogus claims of hundreds of thousands of fraudulent votes, oodles of dead voters, complete mischaracterizations of the vote-counting process and the like. Republicans generally didn’t echo the specific claims — apparently because they couldn’t or didn’t want to vouch for them — but they broadly toed Trump’s line on the election being suspect.

It’s happening again with Trump’s claims of legal persecution.

The idea that Trump is being politically targeted in his criminal cases has become an article of faith (or at least professed faith) in the GOP, at great cost to our legal system. But even as that has become ingrained in the party’s brand, Trump keeps resting his case on bad arguments.

The question becomes, as it was with the 2020 election: If you have a good argument and real evidence, why rely on the bogus stuff? The answer would seem self-evident.

Some examples:

That his lack of advance notice on witnesses is ‘unprecedented’

Trump briefly lodged this complaint Tuesday morning before he deleted his Truth Social post.

“I have just recently been told who the witness is today. This is unprecedented, no time for lawyers to prepare,” Trump said. “No Judge has ever run a trial in such a biased and partisan way.”

This is not unprecedented. Trump’s team has been informed of who the prosecution’s witnesses will be. It’s often a common courtesy for the defense to be told when a witness will testify, but it’s not required.

“There’s no legal requirement to provide notice in advance of the day’s witnesses,” former federal prosecutor Barbara McQuade noted on X.

Stanford University criminal procedure expert David Alan Sklansky said it was “common” for a defendant not to be told who would take the stand on a given day.

And notably, it’s arguably Trump posts like this that have deprived him of this courtesy.

His lawyers last month suggested that New York Supreme Court Justice Juan Merchan compel prosecutors to provide more advance notice of upcoming witnesses. But Merchan agreed with prosecutors that Trump’s posts about witnesses and potential gag order violations (he’s now ruled that Trump violated the gag order 10 times) were a valid reason not to do so.

“We will provide to defense counsel the name of the witness that will testify on Monday morning on Sunday,” prosecutor Joshua Steinglass said at the time. “And if that should be tweeted, that will be the last time we provide a courtesy.”

That he’s not allowed to testify

“I’m not allowed to testify,” Trump said last week. “I’m under a gag order — I guess, right?”

“So I’m not allowed to testify because of an unconstitutional gag order,” he added.

There was simply no basis for this; the gag order applies only to comments outside the courtroom. And Merchan took care to address this directly to Trump.

“I want to stress, Mr. Trump, that you have an absolute right to testify at trial, if that is what you decide to do after consultation with your attorneys. That is a constitutional right that cannot be denied or abrogated in any way,” Merchan said.

He added: “The order is restricting extrajudicial statements. That does not prevent you from testifying in any way.”

He told Trump to tell his lawyers if he needed the judge to clarify anything. Trump responded, “Thank you.”

Trump, at least in this case, conceded that he had been wrong.

“No, it won’t stop me from testifying,” he said Friday after the judge spoke to him. “The gag order’s not for testify[ing].”

That every legal scholar rejects the case

One of Trump’s most laughable claims is that every legal scholar — or sometimes scaled back to “virtually” every one — has rejected the prosecution’s case.

“THEY HAVE NO CASE — This according to virtually all Legal Scholars & Experts!” Trump said in the same deleted post Tuesday morning.

“Every legal scholar says they don’t have a case,” Trump said Monday.

“But every single expert, every legal scholar, every respected scholar, has said this is no case,” he said two weeks ago.

“As virtually every legal scholar has powerfully stated, the Biden Manhattan Witch Hunt Case is, among other things, BARRED by the Statute of Limitations,” he posted April 15.

This is simply not true. Even some legal pundits who don’t like Trump have cast doubt on the case, but it’s far from a consensus view.

Trump has similarly — and bizarrely — recently claimed that all legal scholars and everybody more broadly wanted Roe v. Wade overturned. Polling before it was overturned in 2022 showed the percentage who desired that outcome in the 30s. Today, Americans oppose that decision by a 2-to-1 margin.

That Biden is behind the trial

Trump has been saying this for many months — often referring to the “Biden trial” or “Biden trials” — and it’s no more substantiated today than when he was indicted in March 2023.

“This all comes out of the White House and crooked Joe Biden,” Trump said Tuesday morning. “This comes from the White House.”

“This is called a Biden indictment,” Trump said last week. “It’s in order to try and win an election, a political opponent, and nothing like this has ever happened.”

“Crooked Joe Biden, the WORST President in the History of the United States, caused all of these Trials,” Trump added last week.

“It’s being run by Joe Biden’s White House,” he said in February.

There is still no actual evidence the Biden administration or White House has played any role in this prosecution, which was brought by a local prosecutor in Manhattan.

Trump has pointed to a former Biden Justice Department official joining District Attorney Alvin Bragg’s team in 2022. But there is no evidence this was orchestrated in any way, and the official previously investigated Trump for the New York attorney general’s office — making him a logical pick to join Bragg’s team. The investigation also began in 2018, years before Biden became president.

That he’s ‘the only one’ who had to post bail

Trump claimed last week that the judge “gives everything to the corrupt D.A. … New York City is a violent city. It’s become violent with the cashless bail. I’m the only one [that] has to put up bail.”

Not only do other criminal defendants have to post bail in certain cases, but Trump actually didn’t have to post bail in this case because his alleged offense is nonviolent, and he wasn’t determined to be a flight risk.

Trump has had to post bail in other cases, and it’s conceivable he was talking about one of them, but he was clearly speaking in the context of the Manhattan prosecution.