34 Felonies — A Weaponized Court System

You’ve heard the headline a thousand times:

Donald Trump is a convicted felon. Thirty-four felonies.

Sounds terrible.

But here’s my question:

What exactly were those 34 felonies—and what did prosecutors have to do to turn them into felonies in the first place?

Because when you stop reading the headline and start looking underneath it, this case begins to look very different.

And after looking at how it was constructed, I’ve reached my own conclusion:

I believe Donald Trump was targeted, the prosecution was weaponized, and Judge Juan Merchan should never have presided over the case.

You don’t have to agree with me.

But before deciding I’m wrong, look at how we got to those famous “34 felonies.”

Start With the Actual Charges

Trump was charged with 34 counts of falsifying business records relating to reimbursements made after Michael Cohen paid Stormy Daniels $130,000 shortly before the 2016 election.

Trump denies Daniels’ underlying allegation.

But here’s an enormously important distinction:

Falsifying business records under New York law can be a misdemeanor.

To convict Trump of first-degree falsification—the felony version—prosecutors needed an additional element: an intent to commit another crime, aid or conceal its commission.

That’s the foundation of the entire “34 felonies” headline.

The alleged falsification of the records wasn’t enough by itself to create the felony case prosecutors ultimately brought.

They needed another crime.

So naturally, my next question is:

What Was the Other Crime?

And this is where I think the case starts twisting itself into a pretzel.

Trump’s attorneys challenged the prosecution’s theory and sought greater specificity about what supposedly transformed these business-record allegations into felonies.

Eventually, prosecutors relied upon New York Election Law §17-152, which prohibits conspiring to promote or prevent the election of a person to public office through “unlawful means.”

Okay.

Then what’s the unlawful means?

Now we go another layer deeper.

The jury was presented with multiple possibilities, including alleged violations involving federal election law, falsification of other business records and tax laws.

And here’s the part I find extraordinary:

The jurors did not have to unanimously agree upon which particular unlawful means Trump intended.

Think about that for a moment.

People repeat:

“Thirty-four unanimous felony convictions!”

But that does not mean twelve jurors necessarily agreed upon one identical underlying unlawful-means theory.

They didn’t have to.

That’s an awfully important detail to leave out of the bumper sticker.

What Exactly Was Trump Defending Himself Against?

This is another issue that bothers me enormously.

Yes, Trump knew he had been indicted on 34 counts of first-degree falsification of business records.

That’s not what I’m questioning.

I’m questioning something more fundamental:

How clearly and how early was the defense told precisely what alleged criminal conduct would supply the additional element necessary to transform those records into felonies?

Trump’s attorneys fought over precisely this issue.

And remember what we’re talking about.

Not some insignificant procedural detail.

The additional crime was essential to the felony theory.

If the government is going to prosecute an American citizen for felonies, I believe that citizen should know clearly what makes the alleged conduct a felony so he can defend himself against it.

That shouldn’t be controversial.

And I don’t accept the answer:

“Judge Merchan ruled that the prosecution provided sufficient notice, so that’s the end of it.”

Why?

Because Merchan himself is part of my concern.

What If the Judge Is Biased?

This is where people sometimes talk themselves in circles.

Trump’s lawyers argued that Judge Merchan should recuse himself.

Among the issues they raised was Merchan’s daughter’s involvement with Authentic Campaigns, a political consulting firm that worked for prominent Democratic candidates and organizations.

Merchan refused to recuse himself.

The courts did not ultimately force him off the case.

Those are facts.

But here’s where I part company with the people who think that settles everything:

A judge’s decision that he can be impartial doesn’t prove that he is impartial.

Imagine for a moment that a judge actually is biased.

What would that affect?

Almost everything.

The judge decides what evidence comes in.

What evidence stays out.

What arguments attorneys can make.

Which subpoenas survive.

Which defense challenges succeed.

How much specificity prosecutors must provide.

What the jury hears.

What instructions the jury receives.

And ultimately, what legal theories are permitted to reach that jury.

So if my concern is that the referee may be biased, telling me “the referee says his calls were fair” doesn’t resolve my concern.

That’s circular reasoning.

There Were Real Reasons to Question Merchan

Trump’s concerns about Merchan weren’t invented after the verdict.

Merchan’s daughter was president of Authentic Campaigns, whose political work included Democratic candidates.

Merchan himself had also made small political contributions in 2020, including $15 to Joe Biden’s campaign and two additional $10 contributions to Democratic-oriented groups.

A New York judicial ethics advisory committee later concluded those modest contributions did not require his recusal.

Fine.

That’s their conclusion.

I’m allowed to have mine.

And my conclusion is that in a criminal prosecution of Donald Trump—in the middle of an extraordinarily contentious presidential election—the appearance of impartiality should have been beyond reasonable question.

I don’t believe it was.

I believe Merchan should have stepped aside.

Not because a court eventually ordered him to.

Because public confidence in the judicial system demanded it.

Then Look at the Age of the Conduct

There’s another misconception worth clearing up.

New York didn’t simply pass a special law saying, “Let’s extend Donald Trump’s statute of limitations.”

That’s not what happened.

Existing New York tolling rules and COVID-era extensions played roles in allowing prosecutors to pursue conduct reaching back years.

So I won’t claim somebody simply changed the statute of limitations specifically to get Trump.

But look at the bigger picture.

We’re talking about conduct associated with the 2016 election.

Trump wasn’t indicted until 2023.

Prosecutors nevertheless found a legally accepted pathway around the limitations issue.

Then alleged business-record falsifications were elevated into felonies through the additional-crime theory.

Then that additional crime led us into election law.

Then election law led us to “unlawful means.”

Then there were multiple possible unlawful means.

Then the jury didn’t have to unanimously agree upon which particular unlawful means applied.

At some point I have to ask:

How many legal layers do we need before Americans are allowed to question whether this was an ordinary prosecution?

And Remember: Federal Prosecutors Had Investigated the Underlying Matter

There’s another piece of history that deserves more attention.

Federal prosecutors investigated the hush-money matter.

Michael Cohen was prosecuted federally.

Trump was not federally prosecuted over the payment.

That fact doesn’t legally prevent Manhattan prosecutors from bringing a different state case years later.

But it certainly belongs in the history.

Because eventually the Manhattan District Attorney’s Office found another route.

Business records.

Felony enhancement.

Election-law conspiracy.

Unlawful means.

Thirty-four counts.

And suddenly America had the political headline that would be repeated millions of times:

DONALD TRUMP — CONVICTED FELON.

That’s why I refuse to start with that headline.

I want to know how we got there.

That’s What I Mean by Weaponization

People hear weaponization and assume it means Trump supporters believe Donald Trump should be immune from prosecution.

I don’t.

If Donald Trump commits a crime, charge him.

Nobody should be above the law.

But nobody should be below the law, either.

Use the same laws.

Use the same standards.

Exercise the same prosecutorial discretion.

Give the defendant clear notice of what you’re accusing him of.

Give him a genuinely impartial judge.

And don’t start with the person you desperately want to prosecute and then keep working backward until you find a legal theory capable of getting you there.

Because that’s not equal justice.

That’s weaponization.

Take Trump’s Name Off the Case

Here’s my test.

Forget Donald Trump for a minute.

Imagine the defendant is a presidential candidate you support.

Imagine prosecutors reach back years to old conduct.

Imagine alleged business-record falsifications that can constitute misdemeanors being prosecuted as 34 felonies through an additional-crime theory.

Imagine that additional crime then depends upon another concept—“unlawful means.”

Imagine several possible unlawful means being presented.

Imagine the jurors don’t have to agree unanimously upon the same one.

Imagine the defense repeatedly challenges the prosecution’s theory.

Imagine the judge overseeing all of those decisions has a daughter running a political consulting company serving prominent opponents of your candidate.

And imagine that judge refuses to step aside.

Would you shrug your shoulders?

Would you say:

“The judge ruled on it. Nothing to see here.”

I wouldn’t.

And I wouldn’t want this done to Joe Biden, Barack Obama, Hillary Clinton or anyone else, either.

Because someday the political tables turn.

They always do.

Thirty-Four Felonies? Look Under the Hood.

Donald Trump was convicted on 34 felony counts.

That’s a fact.

But it’s the beginning of the conversation—not the end.

Ask what the original alleged conduct was.

Ask how the business-record allegations became felonies.

Ask what additional crime was required.

Ask how and when that theory was disclosed to the defense.

Ask what “unlawful means” meant.

Ask what the jury actually had to agree upon.

Ask about the age of the underlying conduct and the tolling rules.

Ask about the previous federal investigation.

Ask about the judge.

Ask about his daughter’s political business.

Ask why Merchan didn’t simply step aside from one of the most politically explosive criminal trials in American history.

Then decide for yourself.

I’ve decided for myself.

I believe Donald Trump was targeted.

I believe prosecutors took old conduct and constructed an extraordinarily complicated legal pathway that ultimately produced 34 felony convictions.

I believe Judge Merchan should have recused himself.

And I believe the enormous power of America’s criminal justice system was weaponized against a political figure.

You may disagree.

That’s America.

But please don’t give me the bumper sticker:

“Thirty-four felonies. End of story.”

No.

Thirty-four felonies is where the story starts.

Because our justice system should never work backward:

Find the man first. Find the crime second.

And when it appears to do exactly that, every American—Republican, Democrat or independent—should care.