Indictment of Trump CFO cause for concern

Harvey A. Silvergate, BridgeTower Media Newswires

The indictment of one of Donald Trump’s key executives has produced a lot of excitement and anticipation among those on the left who have been waiting for Trump’s Maginot Line to begin to crumble.

There is widespread anticipation that the indictment of Allen Weisselberg, the chief financial officer of the Trump Organization, will lead to the eventual fall of our former president.

One does not have to be a fan of our 45th president (I, for one, am not) in order to be concerned about the motives of Manhattan District Attorney Cyrus Vance and his minions in indicting Trump’s right-hand man. (As any criminal defense lawyer knows, while technically it is the grand jury that decides to indict, it is actually the prosecutor who makes that decision, which is then rubber-stamped by the grand jury.)

This concern arises out of the way in which the indictment of Weisselberg was fashioned not so much to punish him but, rather, to pressure him to testify against his boss in order to lessen, or avoid altogether, a substantial prison sentence.

According to Martin J. Sheil’s article for Slate, “How Much Jail Time is Allen Weisselberg Facing if He Doesn’t Flip on Trump?,” Weisselberg has three possible courses of action: 1) plead not guilty to all charges; 2) plead guilty but refuse to give up Trump to the prosecutors; or 3) plead guilty and give the prosecutors what they want, with this third option giving Weisselberg the least severe punishment.

These coercive techniques not only produce, in the vast majority of cases, the testimony that the prosecutor seeks, but result in testimony that might not be entirely true and accurate. (In the immortal words of Harvard Law School Professor Emeritus Alan Dershowitz, prosecutors get their witnesses not only to sing, but also to compose.)

This corrupt prosecutorial system is so engrained that prosecutors, former prosecutors, and even retired judges talk of the way it works without the slightest bit of hesitancy, with no self-awareness of the dangers of producing false testimony.


Indeed, The New York Times in its July 2 print edition carried an op-ed penned by Donald Ayer, Norman Eisen and E. Danya Perry, who describe themselves as “former federal and state prosecutors and government lawyers.” In their essay, the three authors talk in terms of whether Weisselberg will “cooperate,” describing Trump as being “at risk.”

(Ayer was deputy attorney general in the George H.W. Bush administration; Eisen was an ethics advisor to President Barack Obama; and Perry is a former attorney general for the state of New York and former assistant U.S. attorney for the Southern District of New York.)

These former high government officials, now respected lawyers in the private sector, speak almost effusively, without any apparent hesitancy, about a system that, in my experience, is as likely to produce false testimony as it is to clarify what the target actually did or did not do.

It is long past the time when federal and state laws should rise to the challenge and provide, once and for all, that rewarding witnesses for their testimony should be treated as obstruction of justice and subornation of perjury on the part of both the prosecutors who engage in such arrangements with potential witnesses, and the judges who approve such techniques.

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Harvey A. Silverglate, a criminal defense and civil liberties lawyer and writer, is of counsel to Zalkind, Duncan & Bernstein in Boston. He is the co-author of “The Shadow University: The Betrayal of Liberty on America’s Campuses,” author of “Three Felonies a Day: How the Feds Target the Innocent,” and most recently, co-author of “Conviction Machine: Standing Up to Federal Prosecutorial Abuse.” He acknowledges with appreciation the assistance of paralegal Emily Nayyer.