At the Supreme Court, two cases lay bare New York’s legal wasteland

In 1976, Saul Steinburg’s hilarious “View of the World from 9th Avenue” was published on the cover of the New Yorker. The map showed Manhattan occupying most of the known world with wilderness on the other side of the Hudson River between New York and San Francisco. The cartoon captured the distorted view New Yorkers have of the rest of the country. 

Roughly 50 years later, the image has flipped for many. With the Trump trial, Manhattan has become a type of legal wilderness where prosecutors use the legal system to hunt down political rivals and thrill their own supporters. New York Attorney General Letitia James (D) ran on a pledge to bag former president Donald Trump. (She also sought to dissolve the National Rifle Association.)

Manhattan District Attorney Alvin Bragg also pledged to get Trump. Neither specified how they would do it, but both were elected and both were lionized for bringing controversial cases against Trump.

Just beyond the Hudson River, the response to these cases has been far less positive. James secured an obscene civil penalty of almost half a billion dollars without having to show there was a single victim or dollar lost from alleged overvaluation of assets.

Through various contortions, Bragg converted a dead misdemeanor case into 34 felonies in an unprecedented prosecution. New Yorkers and the media insisted that such selective prosecution was in defense of the “rule of law.”

This week in the Supreme Court, a glimpse of the legal landscape outside of Manhattan came more sharply into view. It looked very different as the Supreme Court, with a strong conservative majority, defended the rights of defendants and upheld core principles that are being systematically gutted in New York.

In Gonzalez v. Trevino, the court held in favor of Sylvia Gonzalez, who had been arrested in Castle Hills, Texas in 2019 on a trumped-up charge of tampering with government records. She had briefly misplaced a petition on a table at a public meeting.

This was a blatant case of selective prosecution by officials whom Gonzalez had criticized.  She was the only person charged in the last 10 years under the state’s records laws for temporarily misplacing a document. She argued that virtually every one of the prior 215 felony indictments involved the use or creation of fake government IDs.

Although the charges were later dropped, the case reeked of political retaliation and selective prosecution. There is no evidence that anyone else has faced such a charge in similar circumstances. Yet when she sued, the appellate court threw her case out, requiring Gonzales to shoulder an overwhelming burden of proof to establish selective prosecution for her political speech. The justices, on the other hand, reduced that burden, allowing Gonzalez to go back and make the case for selective prosecution.

Unlike the Trump case, the criminal charges against Gonzales were thrown out before trial. For Trump, selective prosecution claims were summarily dismissed, even though no case like Bragg’s appears to have ever been brought before.

The Bragg case is raw political prosecution. No one seriously argues that Bragg would have brought this case against anyone other than Trump. Indeed, his predecessor rejected the case. Yet people were literally dancing in the streets when I came out of the courthouse after the verdict against Trump. In fact, the selectivity of the prosecution was precisely why it was so thrilling for New Yorkers.

Another case decided this week was Erlinger v. United States. The justices ruled 6-3 (and not along the standard ideological lines) to send back a case in which Paul Erlinger had been convicted of unlawful possession of a firearm as a felon. He was given an enhanced sentence for having three prior convictions for violent felonies or serious drug offenses. However, the court denied him the right to have a jury rule on the key issue of whether these prior offenses occurred on different occasions.

The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This is in contrast to how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant.

In Trump’s trial, Judge Juan Merchan effectively guaranteed a conviction by telling jurors that they did not have to agree with specificity on what had occurred in the case to convict Trump. The only way to get beyond the passage of the statute of limitations on the dead misdemeanor for falsifying business records had been to allege that the bookkeeping violation in question occurred to conceal another crime. Bragg did not bother to state clearly what that crime was, originally alluding to four different crimes.

It was not until the end of the case that Merchan would lay out three possible crimes for the jury. All the way up to the final instructions in the case, legal analysts on CNN and other outlets expressed doubt about what the actual theory of the criminal conduct was in the case.

Despite spending little time on these secondary crimes at trial, Merchan told the jury that they could convict if they believed that invoices and other documents had been falsified to hide federal election violations, other falsification violations or a tax violation. 

Those are very different theories of a criminal conspiracy. Under one theory, Trump was hiding an affair with a porn actress with the payment of hush money before the election. Under another theory, he was trying to reduce a tax burden for someone else (that part was left hazy). As a third alternative, he might have falsified the documents to hide the falsification of other documents, a perfectly spellbinding circular theory.

If those sound like they could be three different cases, then you are right. Yet Merchan told the jurors that they did not have to agree on which fact-pattern or conspiracy had occurred. They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved.

That was all that is required in New York when in pursuit of Trump.

Neither of these two cases is controlling in the Trump case, although there are two others pending on the use of obstruction (Fischer v. United States) and presidential immunity (Trump v. United States) that could affect some of the cases against Trump. But Gonzales and Erlinger demonstrate the high level of protections that we normally afford criminal defendants. A court with a 6-3 conservative majority just ruled for the rights of all defendants in defense of the rule of law.

That is not how the law is seen from 9th Avenue.

It all comes down to the legal map. As even CNN senior legal analyst Elie Honig observed, this case of contorting the law for a selective prosecution would not have succeeded outside of an anti-Trump district.  

On the New Yorker map circa 2024, once you cross the Hudson River eastward, you enter a legal wilderness.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University School of Law. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon and Schuster, 2024).