Newsmax Op-Ed: Paul: Lawfare Eviscerates American Judicial Process

Americans will find out in September how far Democrats will go to weaponize the law against the Republican nominee for president.

But Americans may not fully appreciate that the constitutional infirmities that plagued the business records case brought against Donald Trump in deep-blue Manhattan reveal a Democratic effort to shred the Bill of Rights, in order to keep Joe Biden in the White House.

In so doing, Democrats not only threaten President Trump’s freedom; they threaten the constitutional rights of all Americans.

The conviction of President Trump is nothing short of the evisceration of the American judicial process.

In their zeal to imprison President Trump, Democratic prosecutors and a conflicted judge conspired to dissolve the constitutional protections that are supposed to be guaranteed to defendants when the state threatens their liberty.

Among the constitutional protections that met their demise in the business records case are the concepts of due process, hitherto guaranteed to Americans by the Fifth and Fourteenth Amendments, as well as the Sixth Amendment right to be informed of the nature and cause of the accusation.

Due process requires that a defendant be given notice, the opportunity to be heard, and a neutral decision-maker.

Even if we disregard Judge Juan Merchan’s financial contributions to Democratic candidates and causes, the prosecutors were permitted to convert alleged time-lapsed paperwork misdemeanors into felonies because the business records violations were supposedly in furtherance of a second crime.

Yet, even after the jury rendered its verdict, we do not know what constitutes that specific second crime.

No American — not even a President — can defend himself fairly in a court of law if he is deprived of his Sixth Amendment right to know what crime he is alleged to have committed.

As Yale constitutional law Professor Jed Rubenfeld put it, the violation of the Sixth Amendment’s notice requirement is “not a mere technicality . . . it’s actually the fundamental principle of constitutional criminal procedure.”

Due process cannot exist when the defendant is accused of a secret crime.

Prosecutors did not even bother to identify that alleged second crime in the indictment.

The Fifth Amendment requires that an indictment contain some amount of factual particularity to ensure that the prosecution will not fill in the elements of its case with facts other than those considered by the grand jury.

As the Supreme Court stated in Russell v. United States, 369 U.S. 749 (1962): “[t]o allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of the grand jury was designed to secure.”

Democratic prosecutors robbed President Trump of this basic protection.

Judge Merchan aided and abetted the prosecution’s circumvention of the Constitution by providing the jury with a choose-your-own-adventure selection of potential crimes to hang around Donald Trump’s neck.

Under Merchan’s instructions, the jury could potentially find that the alleged second crime was a federal election law violation.

Or tax fraud.

Or more business record infractions.

George Washington University Law Professor Jonathan Turley pointed out that President Trump was “never charged with, let alone convicted of” the supposed election law or tax violations and the notion that Trump falsified business infractions to further falsify other records is a “maddeningly circular theory.”

Worse, Judge Merchan did not require unanimity or agreement on what the alleged second crime was.

No one — not the prosecution, Donald Trump, or any American — outside of the deliberations will know what the jury found.

Merchan’s instruction is a clear violation of the Sixth Amendment, which the Supreme Court held requires a unanimous jury verdict to convict a defendant of a serious offense.

But Democratic prosecutors and judges are not concerned with constitutional rights when they believe the only way to ensure Donald Trump cannot re-enter the White House is to render him a prisoner.

For proof, look no further than Manhattan District Attorney Alvin Bragg’s career trajectory.

Mr. Bragg sought to keep his 2021 campaign promise to hold President Trump “accountable,” by pursuing unprecedented charges.

Crimes were not so much found as invented.

Novel legal theories were brought — for the first time — in service to incarcerate Joe Biden’s chief political rival.

When presented with the choice of adhering to the Equal Protection Clause’s prohibition on selective prosecution or his career, Alvin Bragg trashed the Constitution.

If lawless zealots are willing to deny Trump his right to due process and an impartial judge, they will be willing to do it to anyone.

Every American should condemn this show trial, not just because it is a grotesque attempt to imprison a political leader, but because it threatens the existence of due process of law, without which a constitutional republic dedicated to the protection of individual liberty is not possible.