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• 26 Mar 2024
• Cold Call Podcast

How Do Great Leaders Overcome Adversity?

In the spring of 2021, Raymond Jefferson (MBA 2000) applied for a job in President Joseph Biden’s administration. Ten years earlier, false allegations were used to force him to resign from his prior US government position as assistant secretary of labor for veterans’ employment and training in the Department of Labor. Two employees had accused him of ethical violations in hiring and procurement decisions, including pressuring subordinates into extending contracts to his alleged personal associates. The Deputy Secretary of Labor gave Jefferson four hours to resign or be terminated. Jefferson filed a federal lawsuit against the US government to clear his name, which he pursued for eight years at the expense of his entire life savings. Why, after such a traumatic and debilitating experience, would Jefferson want to pursue a career in government again? Harvard Business School Senior Lecturer Anthony Mayo explores Jefferson’s personal and professional journey from upstate New York to West Point to the Obama administration, how he faced adversity at several junctures in his life, and how resilience and vulnerability shaped his leadership style in the case, "Raymond Jefferson: Trial by Fire."

• 27 Feb 2024
• Research & Ideas

Why Companies Should Share Their DEI Data (Even When It’s Unflattering)

Companies that make their workforce demographics public earn consumer goodwill, even if the numbers show limited progress on diversity, says research by Ryan Buell, Maya Balakrishnan, and Jimin Nam. How can brands make transparency a differentiator?

• 22 Feb 2024

How to Make AI 'Forget' All the Private Data It Shouldn't Have

When companies use machine learning models, they may run the risk of inadvertently sharing sensitive and private data. Seth Neel explains why it’s important to understand how to wipe AI’s spongelike memory clean.

• 10 Oct 2023

In Empowering Black Voters, Did a Landmark Law Stir White Angst?

The Voting Rights Act dramatically increased Black participation in US elections—until worried white Americans mobilized in response. Research by Marco Tabellini illustrates the power of a political backlash.

• 26 Sep 2023

The PGA Tour and LIV Golf Merger: Competition vs. Cooperation

On June 9, 2022, the first LIV Golf event teed off outside of London. The new tour offered players larger prizes, more flexibility, and ambitions to attract new fans to the sport. Immediately following the official start of that tournament, the PGA Tour announced that all 17 PGA Tour players participating in the LIV Golf event were suspended and ineligible to compete in PGA Tour events. Tensions between the two golf entities continued to rise, as more players “defected” to LIV. Eventually LIV Golf filed an antitrust lawsuit accusing the PGA Tour of anticompetitive practices, and the Department of Justice launched an investigation. Then, in a dramatic turn of events, LIV Golf and the PGA Tour announced that they were merging. Harvard Business School assistant professor Alexander MacKay discusses the competitive, antitrust, and regulatory issues at stake and whether or not the PGA Tour took the right actions in response to LIV Golf’s entry in his case, “LIV Golf.”

• 06 Jun 2023

The Opioid Crisis, CEO Pay, and Shareholder Activism

In 2020, AmerisourceBergen Corporation, a Fortune 50 company in the drug distribution industry, agreed to settle thousands of lawsuits filed nationwide against the company for its opioid distribution practices, which critics alleged had contributed to the opioid crisis in the US. The $6.6 billion global settlement caused a net loss larger than the cumulative net income earned during the tenure of the company’s CEO, which began in 2011. In addition, AmerisourceBergen’s legal and financial troubles were accompanied by shareholder demands aimed at driving corporate governance changes in companies in the opioid supply chain. Determined to hold the company’s leadership accountable, the shareholders launched a campaign in early 2021 to reject the pay packages of executives. Should the board reduce the executives’ pay, as of means of improving accountability? Or does punishing the AmerisourceBergen executives for paying the settlement ignore the larger issue of a business’s responsibility to society? Harvard Business School professor Suraj Srinivasan discusses executive compensation and shareholder activism in the context of the US opioid crisis in his case, “The Opioid Settlement and Controversy Over CEO Pay at AmerisourceBergen.”

• 17 Jan 2023

Good Companies Commit Crimes, But Great Leaders Can Prevent Them

It's time for leaders to go beyond "check the box" compliance programs. Through corporate cases involving Walmart, Wells Fargo, and others, Eugene Soltes explores the thorny legal issues executives today must navigate in his book Corporate Criminal Investigations and Prosecutions.

• 29 Nov 2022

How Will Gamers and Investors Respond to Microsoft’s Acquisition of Activision Blizzard?

In January 2022, Microsoft announced its acquisition of the video game company Activision Blizzard for $68.7 billion. The deal would make Microsoft the world’s third largest video game company, but it also exposes the company to several risks. First, the all-cash deal would require Microsoft to use a large portion of its cash reserves. Second, the acquisition was announced as Activision Blizzard faced gender pay disparity and sexual harassment allegations. That opened Microsoft up to potential reputational damage, employee turnover, and lost sales. Do the potential benefits of the acquisition outweigh the risks for Microsoft and its shareholders? Harvard Business School associate professor Joseph Pacelli discusses the ongoing controversies around the merger and how gamers and investors have responded in the case, “Call of Fiduciary Duty: Microsoft Acquires Activision Blizzard.”

• 28 Apr 2022

Can You Buy Creativity in the Gig Economy?

It's possible, but creators need more of a stake. A study by Feng Zhu of 10,000 novels in the Chinese e-book market reveals how tying pay to performance can lead to new ideas.

• 04 Jan 2022
• What Do You Think?

Firing McDonald’s Easterbrook: What Could the Board Have Done Differently?

Letting a senior leader go is one of the biggest—and most fraught—decisions for a corporate board. Consider the recent CEO scandal and legal wrangling at McDonald's, says James Heskett. Open for comment; 0 Comments.

• 20 Sep 2021

How Much Is Freedom Worth? For Gig Workers, a Lot.

In the booming gig economy, does the ability to set your schedule outweigh having sick leave and overtime? Felix Oberholzer-Gee and Laura Katsnelson turn to DoorDash drivers to find out. Open for comment; 0 Comments.

• 17 Sep 2021

The Trial of Elizabeth Holmes: Visionary, Criminal, or Both?

Eugene Soltes explains why the fraud case against the Theranos cofounder isn't as simple as it seems, and why a conviction probably wouldn't deter unethical behavior from others. Open for comment; 0 Comments.

• 23 Aug 2021

Why White-Collar Crime Spiked in America After 9/11

The FBI shifted agents and other budget resources toward fighting terrorism in certain parts of the country, and financial fraud and insider trading ran rampant, according to research by Trung Nguyen. Open for comment; 0 Comments.

• 23 Feb 2021

Examining Race and Mass Incarceration in the United States

The late 20th century saw dramatic growth in incarceration rates in the United States. Of the more than 2.3 million people in US prisons, jails, and detention centers in 2020, 60 percent were Black or Latinx. Harvard Business School assistant professor Reshmaan Hussam probes the assumptions underlying the current prison system, with its huge racial disparities, and considers what could be done to address the crisis of the American criminal justice system in her case, “Race and Mass Incarceration in the United States.” Open for comment; 0 Comments.

• 19 Oct 2020
• Working Paper Summaries

Bankruptcy and the COVID-19 Crisis

Analyzing the impact of the COVID-19 crisis on bankruptcy filing rates in the United States, this study finds that large businesses, small businesses, and consumers experience very different effects of the crisis.

• 12 Aug 2020

Why Investors Often Lose When They Sue Their Financial Adviser

Forty percent of American investors rely on financial advisers, but the COVID-19 market rollercoaster may have highlighted a weakness when disputes arise. The system favors the financial industry, says Mark Egan. Open for comment; 0 Comments.

• 26 Jun 2020

Weak Credit Covenants

Prior to the 2020 pandemic, the leveraged loan market experienced an unprecedented boom, which came hand in hand with significant changes in contracting terms. This study presents large-sample evidence of what constitutes contractual weakness from the creditors’ perspective.

• 23 Mar 2020

Product Disasters Can Be Fertile Ground for Innovation

Rather than chilling innovation, product accidents may provide companies an unexpected opportunity to develop new technologies desired by consumers, according to Hong Luo and Alberto Galasso. Open for comment; 0 Comments.

• 01 Nov 2019

Should Non-Compete Clauses Be Abolished?

SUMMING UP: Non-compete clauses need to be rewritten, especially when they are applied to lower-income workers, respond James Heskett's readers. Open for comment; 0 Comments.

• 28 May 2019

Investor Lawsuits Against Auditors Are Falling, and That's Bad News for Capital Markets

It's becoming more difficult for investors to sue corporate auditors. The result? A weakening of trust in US capital markets, says Suraj Srinivasan. Open for comment; 0 Comments.

Securities Class Actions on the Rise: International Trends to Watch

Class actions have taken the financial world by storm these past few years, capturing widespread investor, media, and regulatory attention…

National Small Business United v. Yellen and Its Implications for the Corporate Transparency Act

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Post-Closing Purchase Price Adjustments Gone Wrong: The Save Mart/Kingswood Capital Dispute

An April 11, 2024, article in the Financial Times, “The inequity method of accounting: California family learns about private-equity hardball…

Form of Emerging Business Credit Agreement

We are pleased to share the new form of the Emerging Business Credit Agreement (EBCA), which is the product of…

April in Brief (Corporations, LLCs and Partnerships) 2024

Delaware Supreme Court Reverses Court of Chancery Decision, Upholding Forfeiture-for-Competition Provision in Limited Partnership Agreement Cantor Fitzgerald, L.P. v. Ainslie,…

Techniques for Addressing and Preventing Disputes before They Arise

“Turbulence in world affairs presents unique challenges to commercial partnerships. Russia’s invasion of Ukraine and resultant sanctions have impeded the…

Practice Area Insights — Exploring General Counsel Responsibilities and Trends

Updating Disclosure Schedules

An introduction to disclosure schedule updates provisions, including why parties include a right or obligation to update disclosure schedules, the…

Recent Developments in Tribal Court Litigation 2024

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Commercial Law

Case Studies in a Business Context

• © 1988
• Desmond Painter 0

Dorset Institute of Higher Education, UK

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Table of contents (6 chapters)

Front matter, introduction summary of case-study contents summary of legal topics, introduction.

Desmond Painter

Summary of Case-study Contents

Summary of legal topics.

• Case Studies

Introduction to the Notes

Notes on each case study.

• business law
• commercial law

About this book

Authors and affiliations, bibliographic information.

Book Title : Commercial Law

Book Subtitle : Case Studies in a Business Context

Authors : Desmond Painter

DOI : https://doi.org/10.1007/978-1-349-09263-5

Publisher : Palgrave Macmillan London

eBook Packages : Palgrave Political & Intern. Studies Collection , Political Science and International Studies (R0)

Copyright Information : Desmond Painter 1988

Softcover ISBN : 978-0-333-43466-6 Published: 18 June 1988

eBook ISBN : 978-1-349-09263-5 Published: 18 June 1988

Edition Number : 1

Number of Pages : X, 154

Topics : Commercial Law , Business and Management, general

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Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.

These three sets of case studies showcase how law firms in North America are innovating as businesses. They feature leading examples of law firms changing how they manage their own people, and how they are reinventing services and delivery models.

All the case studies were researched, compiled and ranked by RSGI. “Winner” indicates that the organisation won an FT Innovative Lawyers Europe award for 2023. The full list of award winners is available here.

More on FT.com: Best practice case studies

Read the other FT Innovative Lawyers North America ‘Best practice case studies’, which showcase the standout innovations made for and by people working in the legal sector:

Practice of law In-house

Knowledge and data

Orrick, Herrington & Sutcliffe: WINNER Originality: 8; Leadership: 9; Impact: 8; Total: 25 Orrick partnered with Italian venture capital group Pi Campus’s Pi School programme, which provides software engineers with real-world industry experience, to develop a machine-learning tool for use by the firm. It uses natural language processing to analyse client data and tag it with descriptions, such as a client’s sector. The tool’s accuracy on client tagging is 90 per cent, compared with 50 per cent when done by people.

BakerHostetler

O: 9; L: 8; I: 7; Total: 24

The information services department at BakerHostetler improved a litigation analytics tool by adding a generative AI element that can extract data from PDFs and Microsoft Word documents to identify patterns that had previously been missed. Clients can see the data visualised for a clearer picture of trends across litigation, transactions and legal spend.

Morgan, Lewis & Bockius

O: 8; L: 8; I: 8; Total: 24

The firm launched a tool to give its lawyers easy access to important information about clients — for example, what they need to know when working with a new client for the first time. It combines the firm’s existing data on clients and active legal matters with third-party information — such as daily stock prices, news stories, and Securities and Exchange Commission filings.

Highly commended

White & Case O: 7; L: 8; I: 7; Total: 22 The client experience team at White & Case developed a platform on which “client experience blueprints” record specific preferences, sticking points and other information. The aim is to create a more consistent experience for clients globally, and to help lawyers anticipate their needs. The “blueprints” are in use across the firm, including in project development and finance, M&A, and commercial litigation practices.

Reed Smith O: 6; L: 8; I: 7; Total: 21 A new platform at Reed Smith automates the allocation of work to organise resources efficiently, optimise pricing, and involve associates in bids for work in a more consistent way. AI helps to match lawyers’ particular skills with available work. More than 95 per cent of associates at the firm use the platform.

McDermott Will & Emery O: 6; L: 8; I: 6; Total: 20 The knowledge management team at the firm created a searchable hub, for M&A and private equity work, which organises key data and provides insights on clients, deal dates, and values and agreement types. The team can collate relevant information for new matters based on lawyers’ past searches and proactively send it to them.

Ballard Spahr O: 7; L: 5; I: 7; Total: 19 The client value and innovation team developed a tool, Cognitive Services, that uses generative AI and a Microsoft suite of off-the-shelf AI tools to spot patterns in profitable and unprofitable legal work. It then applies the lessons learned to future client work and business development.

Digital solutions

Kirkland & Ellis: WINNER Originality: 7; Leadership: 9; Impact: 9; Total: 25 The investment funds team built a platform, SideTrack, that automates the creation and tracking of side letters. These contain additional terms agreed in contracts that vary between many separate investors. The side letters are included in information, dubbed “most favoured nation” documents, where they can be viewed and commented on by investors. SideTrack allows efficient processing of such documents, often hundreds of pages, and tracks side letters globally to avoid duplication of terms. It stores 100,000 side-letter provisions and has been used in more than 300 matters since its launch in 2023. Commended individual: James Desjardins

Troutman Pepper Hamilton Sanders O: 8; L: 8; I: 8; Total: 24 The firm has released its own generative AI application, Athena, which uses OpenAI’s chatbot system but ensures client data is not shared externally — to avoid privacy and data security concerns. Athena has been released across the firm, after being trialled in the marketing department. Of the 500 users a day, 150 are lawyers.

Ballard Spahr O: 7; L: 8; I: 8; Total: 23 The fintech team created an application that handles business licences and government obligations for consumer financial services clients, with dashboards and checklists to help clients navigate licensing requirements and filing deadlines for each US state. The application, which is free, is run by a team of lawyers who respond to any legal queries that arise. Commended individual: Lisa Lanham

Cooley O: 8; L: 8; I: 7; Total: 23 Last year, the firm launched an improved version of its Vanilla platform, which is focused on venture capital and other asset managers. It helps to set up, administer, and close private investment funds. Added services include compliance with sanction requirements.

King & Spalding O: 7; L: 7; I: 8; Total: 22 The ediscovery practice has made a number of updates to its technology, including a document review system for data contained in communication apps such as Slack, Teams and WhatsApp. One new tool helps to identify and log privileged information in large data sets, while another automatically removes irrelevant documents from searches.

Willkie Farr & Gallagher O: 7; L: 7; I: 7; Total: 21 The asset management department worked with the IT team to create a platform that helps clients manage fund administration while ensuring regulatory compliance. The service was developed for private equity group Glendower Capital, but is now available to other clients.

Morgan, Lewis & Bockius O: 7; L: 7; I: 6; Total: 20 The knowledge management and practice services team worked with the intellectual property practice to create VizBridge. This presents clients’ trademark portfolios and their product development plans as an interactive world map, to aid strategic decision making. Commended individual: Rachelle Dubow

Reed Smith O: 7; L: 7; I: 6; Total: 20 The financial services litigation team created an app that helps paralegals and lawyers draft litigation briefs faster and more cheaply. Although the app’s first drafts must be checked and amended by lawyers, the firm estimates the overall time to produce a high-quality brief is cut by 50 per cent or more. Commended individual: Diane Bettino

Eversheds Sutherland O: 6; L: 7; I: 6; Total: 19 The firm developed a searchable database of legal requirements for Meta — owner of Facebook, Instagram and WhatsApp — covering data security requirements in jurisdictions across the globe.

Ropes & Gray O: 7; L: 6; I: 6; Total: 19 In partnership with civil rights lawyer Andrew Stroth and campaign group Truth, Hope and Justice, the firm led a project involving more than 30 law firms to establish a database of police misconduct cases in Chicago and Philadelphia. They analysed data surrounding settlements and verdicts to guide state and city authorities on how to improve practices and enact reform.

People and skills

Mayer Brown: WINNER Originality: 8; Leadership: 8; Impact: 8; Total: 24 The firm launched a “technology general counsel in residence” programme in early 2023, in which an experienced, senior in-house lawyer from a tech company takes up an adviser role on a short-term secondment to Mayer Brown. The scheme, which is modelled on similar initiatives in the venture capital industry, helps the firm’s lawyers to learn about the legal needs of tech start-ups. So far, two general counsels have participated.

Goodwin O: 8; L: 8; I: 7; Total: 23 The firm is exploring “use cases” for generative artificial intelligence and training lawyers and other staff in the technology. Exercises include a “test kitchen” programme, where lawyers and business professionals at all levels are developing and trialling the way that generative AI could work in practice. Collaboration and sharing knowledge across disciplines are emphasised. Nearly 160 such use cases have been identified so far, with the firm planning to develop and implement a number of them in the coming months.

Orrick, Herrington & Sutcliffe O: 8; L: 9; I: 6; Total: 23 The firm introduced a policy in 2022 whereby new associates avoid any billable-hours targets for the first six months and are allotted time to work on pro bono projects, as well as research, and non-billable work with clients. Training, shadowing opportunities and mentorship have also been added. Orrick reports that this approach has improved lawyer performance and benefited clients, as they are billed less often for work by very junior lawyers.

Davis Wright Tremaine O: 8; L: 8; I: 6; Total: 22 In 2023, the firm launched a programme to reduce unconscious bias in partner evaluation, admission and pay meetings. Participants receive training on unconscious bias, and one is nominated as a “bias interrupter” to call out any examples they see during a meeting. They dub it “throwing a bias flag” — a reference to American football refereeing — to call for a pause, in order to review and assess a statement for unconscious bias.

Weil, Gotshal & Manges O: 7; L: 8; I: 7; Total: 22 The WeilPride programme highlights LGBTQ+ issues and provides pro bono support to several non-profit groups supporting the queer community. Within the firm, it has supported the rollout of a family benefits scheme, including financial contributions for fertility treatment, adoption and surrogacy, as well as providing advice and support through the network. The proportion of LGBTQ+ law students in “stepping stone” summer associate roles at the firm in 2023 was up 10 percentage points, to 18.2 per cent, on 2020, when the family benefits initiative began. Commended individual: Justin Lee

White & Case O: 6; L: 8; I: 7; Total: 21 The firm has created a programme to help new partners acquire additional “soft skills”, to help with business development, by assigning a more senior partner as a sponsor who can help with networking, meeting clients, and generally gaining expertise. The new partner’s progress is taken into account in calculating the sponsor’s pay. More than 150 new partners have taken part this year.

BakerHostetler O: 7; L: 7; I: 6; Total: 20 IncuBaker, the firm’s alternative legal services unit, worked with Georgia State University College of Law to create a course in legal technology for law students. The first ran in early 2023 and guided students on how to advance legal innovation projects. The curriculum will expand in 2024 to include new tech such as generative AI.

DLA Piper O: 6; L: 7; I: 6; Total: 19 The firm created a corporate data analytics internship programme that trains participants using DLA Piper’s data, both internally and for client work. It demonstrates to them what law firms require. The results have included using data analytics and visualisation on environment, social and governance (ESG) questions, and a contribution to a summary of the risks of artificial intelligence. The internship, which started in 2019, now has seven data analytics interns a year.

Eversheds Sutherland O: 6; L: 7; I: 6; Total: 19 Expanding out of its energy and employment practices, the firm’s global ESG group launched a training scheme for lawyers in other practice areas on some of the challenges facing their clients — such as energy transition, social responsibility, sustainable finance and climate litigation. Sessions are tailored to showing how different areas of the law are affected.

Willkie Farr & Gallagher O: 6; L: 7; I: 6; Total: 19 Last year, the firm hired two former participants in its environmental analyst internship programme. The initiative — launched in 2021 and targeted at students who are not in law school — aims to broaden the range of skills in environmental analysis that the firm makes available to clients.

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The Harvard Business School has produced many business case studies. Many, but not all case studies are published in the Harvard Business Review . Case studies published in the HBR are findable by title in LibrarySearch or via the EBSCOhost Business Source Complete database using the link below:

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Business Law I Essentials

(5 reviews)

Mirande Valbrune

Renee De Assis, Texas Woman's University

Suzanne Cardell, University of Massachusetts Dartmouth

Copyright Year: 2019

Publisher: OpenStax

Language: English

Formats Available

Conditions of use.

Learn more about reviews.

Reviewed by Velda Arnaud, Department Chair, Instructor, and Advisor, Blue Mountain Community College on 4/5/24

All of the topics we need for our business law course are covered in this OER. read more

Comprehensiveness rating: 5 see less

All of the topics we need for our business law course are covered in this OER.

Content Accuracy rating: 4

Some topics need to be updated because this information is 5 years old.

Relevance/Longevity rating: 4

As previously stated, laws change, and this book is 5 years old.

Clarity rating: 4

The reading level may be difficult for non-native English language students.

Consistency rating: 5

Each chapter is nicely organized.

Modularity rating: 5

This is one of the best features.

Organization/Structure/Flow rating: 5

The content flows very well and ends with international law and securities.

Interface rating: 3

All of the information is on the website, and I would prefer to keep students in the learning management system.

Grammatical Errors rating: 5

So far, I have not found grammatical errors.

Cultural Relevance rating: 5

This is a business course, and they use many different examples. It seems quite representative of the population.

There is a low-cost printed book available for students.

Reviewed by Ben Carr, Associate Professor, James Madison University on 7/30/20

The text was comprehensive in general, to some extent too much so, and with regards to a few topics that I consider critical topics for a business course, completely lacking. First, as to the “too much”. There were some legal subjects which were... read more

Comprehensiveness rating: 4 see less

The text was comprehensive in general, to some extent too much so, and with regards to a few topics that I consider critical topics for a business course, completely lacking. First, as to the “too much”. There were some legal subjects which were unnecessary and seemingly used to take up space. For example, I do not know how or why any student not in law school would need to know about “res ipsa loquitur” (note: it was spelled incorrectly in the text). It is not a practical topic area and only lawyers would need to understand that concept. Another example was the Ethical Decision Making Policies. Despite putting it in the text, there was no discussion about the decision making process beyond just replicating the University of Michigan policy that was quoted. So, in this case, it did not even need to be included, and if so, it merited further discussion. There were a few other subjects dealt with similarly, but those did not necessarily detract from the overall value of the text itself. As for the “lacking” comment, it is surprising that a text on Business Law (even if it is an introduction) does not include a chapter on business entities. Corporations, LLCs, Partnerships (general and limited) and sole proprietorships are significant topics which deserve discussion and explanation. Also, there was no mention of vicarious liability. Respondeat Superior, principal/agent and partnerships are three legal areas where an employer/third party who is not directly involved in a specific incident can/may be held responsible to an injured party due solely to the relationship between that employer/third party and the person causing the injury. The section on ethics was also failed to address professional ethics vs. personal ethics. How those two interact on a daily basis, especially with regards to corporate decisions is an important topic to discuss. For example, Hobby Lobby refused to comply with an Affordable Care Act requirement that medical insurance provided by employers include contraceptives. An employee filed suit, and the U.S. Supreme Court had to ultimately decide the issue. That was a personal value/ethic that the owners of Hobby Lobby (it was privately owned) utilized instead of a “professional” value/ethic. The criminal law section did not address battery and how it was technically different from assault. This is not a critical issue in business law, but if the author(s) were going to address assault, then battery should have also been addressed. The ADR section should have, in my opinion, considered the benefits of an employee agreeing to a pre-employment waiver of the right to trial. Many employers are now either requiring, or at least making it optional, for an employee to waive that right. The consequences of doing so are important and deserve some coverage. The sections on both sexual harassment and negligence were far too superficial and short. These are two areas of significant corporate liability exposure and lawsuit filings. Neither received the type of attention which they deserved. Lastly, I am a big fan of hypotheticals. In this reviewer's opinion, there were not enough of those, especially not enough real-world cases used as tools to explain a concept.

The content was generally accurate with some nit-picking on my part. For example, the author(s) stated that most states do not allow minors to void a contract after turning 18 years of age. It is my understanding that most states actually allow for a “reasonable” time after turning 18 for a minor to void a contract unless that minor has somehow ratified or affirmed the contract after turning 18. Also, comparative vs. contributory negligence was not handled as deftly as it could have been. First, there are two types of comparative negligence, which was not discussed, and second, it is solely dependent upon which state in which the incident occurs as to whether comparative negligence (either type) or contributory negligence will be utilized in a legal analysis. Another nit-picking on my part deals with a few minor mischaracterizations and/or inadequate information. An example of that is when the author(s) discuss the McDonald’s case involving the hot coffee. A significant issue in the case was punitive damages, because McDonald’s knew that their coffee was too hot and had made the “business” decision to not change the temperature. To simply use the case as a “negligence” example misses the primary point of that case. Yet another nit-picking was that when the author(s) discussed Title VII, they did not point out that there are employee limits to the application of that Title. For example, Title VII’s prohibition against discriminating against a person with a disability does not apply to an entity with fewer than 15 employees, while the prohibition against discriminating against age does not apply to an entity with fewer than 20 employees. This is important, because state laws can lower those thresholds and readers need to be ultra aware of checking both the federal and state law protections. There were other nuances that the author(s) did not mention which would be valuable as instruction, such as with sexual harassment. In sum, the text was relatively comprehensive, and would be most useful to an instructor with legal experience who could utilize it in a very, very basic, almost vocabulary level, manner. It says that it is “Essentials”, but there are some essentials, which I have addressed, that I feel should have been included. Assuming that it is intended solely as a very basic introduction, that is where its value can be found. Otherwise, an instructor trying to utilize the text without a sound legal understanding to begin with will find that it will raise many questions that students may ask which he/she will not be prepared to answer or explain and/or even convey information which may be incorrectly applied.

Relevance/Longevity rating: 5

Due to its very basic manner of addressing virtually all the topics, the content is up-to-date in its content. Without further exploration of the topics in the text, i.e. Essentials II, the text is only marginally useful as a text for practical legal considerations on its own. The text is written and/or arranged in such a way that necessary updates will be relatively easy and straightforward to implement.

Clarity rating: 5

The text was written in a way that most would understand. There were a few times when I had to re-read a sentence or paragraph and use my own understanding to have the passage make sense. Again, it is important that whoever uses the text already have a legal background.

The text was consistent in terms of terminology and framework.

Modularity rating: 4

Due to the nature of law itself, the text is marginally susceptible to being divided up into different sections at different points. To stress, that is not the author(s) issue, that is the nature of the beast. There has to be some scaffolding in law with certain concepts being taught/learned in order. In terms of its comparison to other legal texts in this topical area, I would strongly guess that it is pretty consistent and does as well as it can except for one suggestion that I will give in the following review area.

Section 5.2 seemed to me to be out of place. It would be far better suited if placed either in chapter 1 or as its own chapter between chapters 1 and 2. Otherwise, the topics in the text are presented in a logical, clear fashion.

Interface rating: 5

I had no problems with the interface or with navigating through the text. Everything was clear and I did not discern any distractions or confusions to the reader.

I am not an English major, but I did not notice any grammatical errors.

The text is not culturally insensitive or offensive in any way. I would, however, suggest that the cultural events since the text was published would justify a supplement. More discussion of Title VII and the sex, race and color classes would be appropriate.

I think the goals of this text were laudable, but fell just a little short of my expectations. At times, it seemed as though someone other than an attorney or someone familiar with law was writing it, and was just cutting and pasting without a practical understanding of what was being written. That may be due more to a goal to just give some "essentials" to supplement the in classroom teaching of an instructor with some legal knowledge or experience.

Reviewed by Paolo Davide Farah, Assistant Professor, West Virginia University on 5/1/20

The reviewer believes that text covers all areas and ideas of the subject appropriately. The title of the book is Business Law I Essentials, so the expectation is that there might be the need to prepare a Business Law II Essential for the areas,... read more

The reviewer believes that text covers all areas and ideas of the subject appropriately. The title of the book is Business Law I Essentials, so the expectation is that there might be the need to prepare a Business Law II Essential for the areas, which are missing from the analysis. In fact, my interpretation and understanding is that this book selects some of the most important issues in the areas, but it is also focusing on what it can be virtually possible to cover in a single class module. In fact, 14 sections/chapters are equivalent to a 14-week class. I believe that this textbook is useful for a first clear introduction to beginners and then students can complement with the constitution, the case law, case studies, simulations and other relevant real life examples and experiences.

Content Accuracy rating: 5

The reviewer considers that the content of the book is accurate. The selection of topics is also relevant. Particularly, the corporate social responsibility is an area not covered by all business law textbooks. Generally, other business law textbooks cover predominantly the market oriented analysis and not sufficiently the limits to globalization and the business sector represented by the necessary balance between business and human rights, business and sustainable development, business and other non-commercial values. I would probably extend some parts to also cover corporate governance

The reviewer considers that the book covers relevant contemporary issues without risks for the longevity of the book. The case studies are useful to students to learn from practice.

As previously mentioned, the text is clear and organized in such a way that is easy to access for students that will approach these topics for the first time. The instructor can use the single chapters as the main topic for each of the classes complementing this book with cases and other additional readings. The terminology and the language is accessible to students and non-experts.

Consistency rating: 4

The text is internally consistent, but I believe the pictures are not a relevant addition to the textbook. It would be advisable that the author revises the textbook to use pictures that are actually relevant for the analysis of each of the sections.

Each chapter can be used as an individual section for class modules and lectures complemented with additional materials.

The topics in the text were presented clearly.

The text does not present any interface, but it necessitates some external materials to cover some aspects. In addition, the pictures are not representative of the contents of the textbook.

The reviewer did not detect grammatical errors.

During the review, no culturally insensitive remarks or offensive statements have been detected in any way.

I will use this book for one of my classes.

Reviewed by Steve Custer, Associate Professor, Oakland City University on 12/19/19

This book covered the major aspects inherent to the legal landscape of business. Its subject matter is well referenced and provided a solid vocabulary of terms. Particularly, the content offered an informative section on negotiation skills and... read more

This book covered the major aspects inherent to the legal landscape of business. Its subject matter is well referenced and provided a solid vocabulary of terms. Particularly, the content offered an informative section on negotiation skills and tactics that I would recommend.

Upon inspection, this reviewer found the book to be accurate, without errors, and neutral in its presentation.

This reviewer found the text to be timely and informative. Specifically, chapter 7 (contract law) provided some excellent real-world examples that should be incorporated into classroom discussions.

The book is well formatted which should enable the entry level business law student to excel in their learning and comprehension of broad based legal definitions.

The text is largely consistent, although the authors elected to provide more examples and tables to illustrate concepts in the latter chapters of the text than in the former chapters.

The chapters of this text were well assembled and concise. I would not hesitate to adopt portions alongside other material in the classroom.

The topics were presented in a clear fashion and were easy to understand.

Interface rating: 4

No interface issues were noted, but when compared with other resources, additional content seemed lacking at times.

No grammatical errors were found during this review.

Upon inspection, this reviewer did not notice any insensitive or offensive material in this text.

There are a plethora of business law texts available in the marketplace. Whatever resources one chooses to adopt, the Business Law Essentials text could certainly be utilized as an effective supplement in the classroom.

Reviewed by Chelsea Green, Assistant Clinical Professor, Miami University on 12/6/19

Even though this text is an "essentials" text, there are certain topics that are missing from the text that I would expect to find in a basic legal environments textbook. These include topics such as 1) Real, Personal, and Intellectual Property;... read more

Comprehensiveness rating: 3 see less

Even though this text is an "essentials" text, there are certain topics that are missing from the text that I would expect to find in a basic legal environments textbook. These include topics such as 1) Real, Personal, and Intellectual Property; 2) Negotiable Instruments and Banking; 3) Secured Transactions and Bankruptcy; 4) Agency and Liabilities to Third Parties; and 5) Business Organizations. The text includes both a table of contents and an index. It would be nice to see a glossary and the US Constitution in the back. The material included is fairly basic and doesn't explore the topics with adequate depth.

I am not finding inaccurate information, however, both sides of various topics are not included such as the free market argument that those arguing for corporate social responsibility would normally face.

Relevance/Longevity rating: 3

Most of the book covers foundation material that will timeless. However, there are a number of links to supporting information located on the web that could become obsolete. This text also lacks examples of the law from trial cases, which may increase the longevity of the text, however, this trait also leads to the shallower coverage of the topics.

The book is easy to read and provides user-friendly vocabulary for a non-lawyer.

The text is internally consistent in terms of terminology and framework. Again, if provides basic information regarding the legal topics covered.

This text is easily read and could be divided up cleanly.

Organization/Structure/Flow rating: 4

The organization of the material is logical and clear. There is good use of headings and visual breaks for the reader. The end of the chapters provide simple multiple choice questions for a learner to test themselves. There is not a summary provided at the end of the chapter which is common with standard texts.

I did not find any interface issues related to this text.

Grammatical Errors rating: 4

I did not find any grammatical errors that would stand out to a learner and distract from the content.

Cultural Relevance rating: 4

There are few examples in this text on which to judge its culturally insensitivity. The images included in the text illustrate a diverse group of participants in the law.

The images included in this book seem to be inserted only to take up space. Images in a law text can be very helpful for the non-learner by providing comparisons and flowcharts to simplify concepts. Consider using more meaningful images to support the text and provide the textual information in a different way.

Table of Contents

• 1 American Law, Legal Reasoning, and the Legal System
• 2 Disputes and Dispute Settlement
• 3 Business Ethics and Social Responsibility
• 4 Business and the United States Constitution
• 5 Criminal Liability
• 6 The Tort System
• 7 Contract Law
• 8 Sales Contracts
• 9 Employment and Labor Law
• 10 Government Regulation
• 11 Antitrust Law
• 12 Unfair Trade Practices and the Federal Trade Commission
• 13 International Law
• 14 Securities Regulation

Ancillary Material

About the book.

Business Law I Essentials is a brief introductory textbook designed to meet the scope and sequence requirements of courses on Business Law or the Legal Environment of Business. The concepts are presented in a streamlined manner, and cover the key concepts necessary to establish a strong foundation in the subject. The textbook follows a traditional approach to the study of business law. Each chapter contains learning objectives, explanatory narrative and concepts, references for further reading, and end-of-chapter questions.

Business Law I Essentials may need to be supplemented with additional content, cases, or related materials, and is offered as a foundational resource that focuses on the baseline concepts, issues, and approaches.

About the Contributors

Renee De Assis

Suzanne Cardell , University of Massachusetts Dartmouth

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Top 40 Most Popular Case Studies of 2021

Two cases about Hertz claimed top spots in 2021's Top 40 Most Popular Case Studies

Two cases on the uses of debt and equity at Hertz claimed top spots in the CRDT’s (Case Research and Development Team) 2021 top 40 review of cases.

Hertz (A) took the top spot. The case details the financial structure of the rental car company through the end of 2019. Hertz (B), which ranked third in CRDT’s list, describes the company’s struggles during the early part of the COVID pandemic and its eventual need to enter Chapter 11 bankruptcy. 

The success of the Hertz cases was unprecedented for the top 40 list. Usually, cases take a number of years to gain popularity, but the Hertz cases claimed top spots in their first year of release. Hertz (A) also became the first ‘cooked’ case to top the annual review, as all of the other winners had been web-based ‘raw’ cases.

Besides introducing students to the complicated financing required to maintain an enormous fleet of cars, the Hertz cases also expanded the diversity of case protagonists. Kathyrn Marinello was the CEO of Hertz during this period and the CFO, Jamere Jackson is black.

Sandwiched between the two Hertz cases, Coffee 2016, a perennial best seller, finished second. “Glory, Glory, Man United!” a case about an English football team’s IPO made a surprise move to number four.  Cases on search fund boards, the future of malls,  Norway’s Sovereign Wealth fund, Prodigy Finance, the Mayo Clinic, and Cadbury rounded out the top ten.

Other year-end data for 2021 showed:

• Online “raw” case usage remained steady as compared to 2020 with over 35K users from 170 countries and all 50 U.S. states interacting with 196 cases.
• Fifty four percent of raw case users came from outside the U.S..
• The Yale School of Management (SOM) case study directory pages received over 160K page views from 177 countries with approximately a third originating in India followed by the U.S. and the Philippines.
• Twenty-six of the cases in the list are raw cases.
• A third of the cases feature a woman protagonist.
• Orders for Yale SOM case studies increased by almost 50% compared to 2020.
• The top 40 cases were supervised by 19 different Yale SOM faculty members, several supervising multiple cases.

CRDT compiled the Top 40 list by combining data from its case store, Google Analytics, and other measures of interest and adoption.

All of this year’s Top 40 cases are available for purchase from the Yale Management Media store .

And the Top 40 cases studies of 2021 are:

1.   Hertz Global Holdings (A): Uses of Debt and Equity

2.   Coffee 2016

3.   Hertz Global Holdings (B): Uses of Debt and Equity 2020

4.   Glory, Glory Man United!

5.   Search Fund Company Boards: How CEOs Can Build Boards to Help Them Thrive

6.   The Future of Malls: Was Decline Inevitable?

7.   Strategy for Norway's Pension Fund Global

8.   Prodigy Finance

9.   Design at Mayo

10. Cadbury

11. City Hospital Emergency Room

13. Volkswagen

14. Marina Bay Sands

15. Shake Shack IPO

16. Mastercard

17. Netflix

18. Ant Financial

19. AXA: Creating the New CR Metrics

20. IBM Corporate Service Corps

21. Business Leadership in South Africa's 1994 Reforms

22. Alternative Meat Industry

23. Children's Premier

24. Khalil Tawil and Umi (A)

25. Palm Oil 2016

26. Teach For All: Designing a Global Network

27. What's Next? Search Fund Entrepreneurs Reflect on Life After Exit

28. Searching for a Search Fund Structure: A Student Takes a Tour of Various Options

30. Project Sammaan

31. Commonfund ESG

32. Polaroid

33. Connecticut Green Bank 2018: After the Raid

34. FieldFresh Foods

35. The Alibaba Group

36. 360 State Street: Real Options

37. Herman Miller

38. AgBiome

39. Nathan Cummings Foundation

40. Toyota 2010

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The Private Target Mergers & Acquisitions Deal Points Study (“the Study”) is published on a bi-annual basis by the Market Trends Subcommittee of the ABA Business Law Section’s M&A Committee, which I am happy to serve on. The Study looks at several areas of negotiation, including financial terms, pervasive qualifiers, representations and warranties, covenants, closing conditions, indemnification provisions, and representations and warranties insurance. The wide range of topics covered is just one reason why the ABA report is so useful to practitioners and has become a widely respected source for what terms are currently considered market.

The benchmark for what is “market” shifts and adapts to the economic circumstances each year. This constant evolution makes it important to publish updates to the Study on a bi-annual basis and enables the Study to reflect trends by tracking the shifts over time.

The 2023 Study analyzed 108 publicly available acquisition agreements executed and closed in 2022 and the first quarter of 2023. What are the key trends of note, and which new data points have been added? See below for the most significant trends and changes identified by the Goulston & Storrs Corporate Group. 

1. Purchase Price Adjustment Escrows.  53% of deals include a separate escrow account which holds back a portion of the total purchase price at closing in order to settle the post-closing purchase price adjustment. This is an increase from the 47% seen in the prior publication and the highest percentage reported since the Study began tracking this metric in 2006. Additionally, 40% of the acquisition agreements with adjustment escrows specify that the adjustment escrow is the sole source of recovery for the post-closing purchase price adjustment. This trend towards using the escrow as the sole recourse for purchase price adjustments has risen steadily from 11% in 2017 (when this metric was first tracked).

2. Representation and Warranty Insurance (RWI).  There has been a market wide trend towards obtaining RWI over the past several years. The Study shows that 55% of the deals in the 2023 Study included references to RWI. This is up significantly from 29% when the Study first included this metric in the report in 2017. Additionally, of the acquisition agreements with references to RWI, the Study saw an increase in deals in which the RWI policy is the sole source of recovery for breaches of representations and warranties, at 49%. This is a growing trend, with this year’s Study showing the highest prevalence of no indemnity delas recorded by the Study and jumping from 38% in the prior Study and up significantly from only 14% in 2018-19. In addition, 22% of deals included RWI as the sole source of recovery for breaches of non-fundamental representations and warranties.

3. Indemnity Caps . The 2023 Study includes additional data points to show RWI correlations in provisions that are materially affected by the presence of RWI. This is particularly evident in the indemnity provisions. It is common for parties to cap the potential liabilities of sellers for breaches of general representations and warranties. The central negotiation around this point is what amount is appropriate for the cap. There was a notable uptick in the size of the indemnity cap as a percentage of transaction value in 2023, presumably due to the private company M&A market being more “buyer friendly.” As a result, the 2023 Study shows an increase in the mean for the indemnity cap as a percentage of transaction value from just over 6% in 2021 to almost 10.5% in 2023.

4. Materiality Scrapes.  Since the 2005 publication, in which only 14% of the deals included a materiality scrape, the usage of the materiality scrape has significantly and regularly increased (with one notable exception in 2013), jumping to 70% of deals in 2015 and peaking at an impressive 93% in 2019. While the current Study shows a slight decrease in the prevalence of a materiality scrape, it is still present in 79% of the acquisition agreements included in the Study. In addition, the Study looks at the use of double materiality scrapes and the presence of RWI. The results show that double materiality scrapes are common in deals with RWI, but that a materiality scrape is more likely to be limited to the calculation of damages in deals without RWI then it would be if RWI is present. 

5. Knowledge Qualifiers.  In qualifying representations and warranties by the knowledge of the seller, buyers prefer a “constructive knowledge” formulation (i.e. the knowledge a person would reasonably be expected to obtain with due inquiry), while sellers prefer an “actual knowledge” standard. According to the Study, 92% of the deals in 2023 utilized a constructive knowledge formulation. The use of constructive knowledge rather than actual knowledge has increased regularly year over year and is now in almost all the deals, with some variation in how constructive knowledge is defined. 

6. 10b-5 Representation . The 2023 Study shows a pronounced decline in the presence of 10b-5 and full disclosure representations in private M&A transactions. Inclusion of 10b-5 acquisition agreements has steadily decreased from a peak of 67% in the 2009 publication to a low of just 6% of the deals in the current Study. Additionally, a full disclosure representation is virtually never made as a stand-alone representation in the absence of a 10b-5 representation. Rather, if a full disclosure representation is made, it is only made in conjunction with a 10b-5 representation.

7. Silence on Sandbagging . A pro-sandbagging provision permits a buyer to recover indemnification for breaches the buyer was aware of prior to closing a transaction. In contrast, an anti-sandbagging provision expressly prohibits a buyer from recovering losses in connection with breaches the buyer knew of prior to closing. The compromise position between these two positions is to be silent on the issue (which is by default more in line with permitting sandbagging as a result of not expressly prohibiting recovery). The Study reports that 76% of deals followed the compromise position of remaining silent, up significantly from 41% in 2006. This also reflects an RWI correlation, with the deals that included RWI references making up a large portion of the 76% of deals that were silent on this point. Additionally, the Study shows that 19% of deals included pro-sandbagging provisions in 2023, down from 56% in 2005. Anti-sandbagging provisions continue to be uncommon, appearing in just 5% of the deals in 2023.

8. Damage Mitigation Provisions.  A seller may include a provision in the indemnification section of the acquisition agreement requiring the buyer to make an effort to mitigate the damages in connection with an indemnifiable loss. The inclusion of such a damage mitigation provision, expressly requiring the buyer to take steps to mitigate losses, has increased significantly — from 22% in 2007 to 69% in 2023. This is a jump from the already relatively high percentage of 56% in 2021 and the highest percentage seen to date in the Study.

9. Types of Damages Recoverable . Sellers will often negotiate to expressly exclude certain types of damages from the damages sellers are indemnifying for in the acquisition agreement. Potential exclusions include incidental, punitive and consequential damages, among others. According to the Study, in 2023 (i) incidental damages were expressly excluded in 17% of the deals and the agreements were silent in 80% of deals, (ii) punitive damages were excluded in 73% of deals and the agreements were silent in 24% of deals, and (iii) consequential damages were expressly excluded in 39% of deals and the agreements were silent in 57% of deals. Of note, however, is that within the category of “expressly excluded” the Study includes provisions that have an exception from the exclusion for damages actually paid to a third party.

10. Indemnification as Exclusive Remed y. The Study shows that acquisition agreements commonly include a provision stating that the indemnification provisions are the exclusive remedy for claims in connection with the transaction, with such a provision included in 89% of the 2023 Study deals. Within the exclusive remedy provision, the Study looks at whether fraud is carved out and whether fraud is defined in any way. The Study shows that a fraud carve out is present in 87% of the agreements with this provision. In deals including a fraud carve-out, there has been a trend towards defining fraud with some specificity, often limiting the carve-out to actual or intentional fraud.

Each of these key takeaways and new data points from the latest Study reflect trends in the markets that have developed over the past several years due to demands and changes in the M&A industry as a result of changing economies and priorities. We’ll explore the reasons and effects of these developments in more depth through a series of short, focused articles to be published over the next several weeks.

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What the Trump hush money trial verdict means for politics and the rule of law

Subscribe to governance weekly, norman eisen and norman eisen senior fellow - the brookings institution, governance studies @normeisen fred dews fred dews senior multimedia project manager - office of communications @publichistory.

June 5, 2024

• The jury found that the payment to Stephanie Clifford was facilitated to benefit Mr. Trump’s 2016 presidential campaign, making the falsification of business records a felony
• The second crime, the campaign finance conspiracy, was spelled out by prosecutors a year ago
• Former President Trump should be sentenced to incarceration, but there will be no incarceration before the 2024 presidential election
• 15 min read

On May 30, former president Donald Trump was found guilty by a Manhattan jury of 34 felony counts of falsification of business records in the first degree. The case revolved around payments made before the 2016 presidential election to adult film actress Stephanie Clifford, aka Stormy Daniels, in exchange for her silence about her allegation of an affair she had with Mr. Trump a few years prior. To talk about what the trial verdict suggests for governance, politics, and the rule of law, Norm Eisen, senior fellow in Governance Studies at Brookings and chair of the Anti-Corruption, Democracy and Security Project, joins The Current .

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DEWS: You are listening to The Current , part of the Brookings Podcast Network, found online at Brookings dot edu slash /podcasts. I’m Fred Dews.

Last week, on May 30th, former President Donald Trump, the presumptive Republican nominee for president this year, was found guilty by a Manhattan jury of 34 felony counts of falsification of business records in the first degree. The case revolved around payments made before the 2016 presidential election to adult film actress Stephanie Clifford, aka Stormy Daniels, in exchange for her silence about her allegation of an affair she had with Mr. Trump a few years prior.

To talk about what the trial verdict suggests for governance, politics, and the rule of law, I’m joined once again by Ambassador Norm Eisen, senior fellow in Governance Studies at Brookings and chair of the Anti-Corruption, Democracy, and Security Project at Brookings, ACDS for short. He also served as President Obama’s special assistant for ethics and government reform.

Norm, welcome back to The Current .

EISEN: Thanks for having me back, Fred, and so excited to talk about what I saw in court every day in Manhattan in the trial of Donald Trump. I think the one of the trials of the century.

DEWS: Well, Norm, I’m always excited to talk to you about any topic. This one is especially momentous. But first, I’ve introduced you numerous times on this podcast and on our previous show, The Brookings Cafeteria , by noting your former roles of ambassador, ethics czar, and now chair of the OECD’s project. But I’ve never introduced your very significant background in the law itself. Can you briefly tell our listeners a little bit about the experience you bring to analysis of legal cases, especially those involving the former president?

EISEN: Well, the the history of that background, of course, starts with my 20 years of practice mostly as a criminal defense lawyer as a partner in big litigation boutique specializing in white collar criminal defense. I worked on financial allegations of wrongdoing, like the Enron case, political investigations like the Clinton impeachment. And, after my sojourn as special counsel to President Obama, the ethics czar, as ambassador, came to Brookings. Took a leave to be the counsel for the first impeachment and trial of Donald Trump, where we investigated these same allegations that were at issue in the New York courtroom. And, of course, have continued, in my nonprofit roles as, co-founder of CREW, Citizens for Responsibility and Ethics in Washington, the States United Democracy Center, and now the State Democracy Defenders Fund to do pro-bono litigation, litigation in the public interest.

So, I brought all of those different lenses to bear. It’s almost it’s a total of almost 40 years in the courtroom through which I observed the judge, the jury, the the lawyers, the defendant, and everything that was going on in that Trump trial over almost two months of trial proceedings. I was there every day.

DEWS: So, Norm, keep us in that courtroom, that Manhattan courtroom. When the jury foreman read the 34 guilty verdicts against the former president. What did that feel like to you?

EISEN: History. It isn’t that often as a lawyer that you experience a legal first in American history. Even the impeachment and trial of Trump. We had the trial of Clinton. We had the trial of Andrew Johnson. So, even that trial, as rare as an impeachment trial of a president is, was not a first in American history. We’ve never had a president, former president, whose conduct was so egregious that a criminal jury stood and 34 times the foreman of that jury said “guilty.”

And what’s more, the crime was one that related to office because Trump was convicted of covering up a conspiracy to interfere with the 2016 election by paying hush money to keep information from voters. So, it was it was a momentous for for our nation and momentous for our democracy.

DEWS: And it was that latter piece that the payments were made to cover up information that could have been pertinent to voters’ choices in the 2016 election that made it a felony, the concealment of another crime?

EISEN: Correct. In New York, if you create a false document, in this case, Donald Trump was found to have been involved in 34 false documents at his business that should have said repay illegal hush money. And of course, people never write that down. So, what they write down is legal retainer. But this was not a legal retainer, Fred. As prosecutor Joshua Stein Glass said in his closing argument, this wasn’t a payment to a lawyer. This was a payment to a porn star. And a campaign contribution that was funneled through a lawyer.

So, it’s not right. You can’t write on the page “legal expense, legal retainer,” and those 34 pieces of paper covered up this money that was paid to keep critical information from voters coming after the Access Hollywood tape, where there was a tremendous national scandal because Trump was on tape saying that you can sexually assault women if you’re a star, you can even grab them by the P word. Grab them by their genitals. It was so shocking. Another sex scandal might have ended his campaign, or that was the worry.

So, they … this $130,000 payment was facilitated to benefit the campaign the jury found. And that was a part of an unlawful conspiracy to influence an election. It’s only a felony, those 34 false pieces of paper, are only a felony if they’re covering up the intent to commit another crime. And that’s what the election conspiracy was. It was the the second intended crime.

DEWS: So, a lot of the criticism of the verdict, which which flowed out of social media and out of networks almost immediately as it was being announced, setting aside the electoral aspect of the underlying crime itself, claim that it was bad bookkeeping, that those kind of financial crimes are victimless crimes. Some of those kinds of crimes can be misdemeanors. The crimes aren’t that serious. You know, there’s a lot of kind of rationalizations around the underlying financial side of the crimes. What do you make of those kinds of claims?

EISEN: People who we’re not in court did not understand. Some people, some understood, many did not understand the case and they’re just confused. Let me tell you, Fred, if I put 34 false expense reports, I said business trip to New York, when actually those funds were used to pay off a porn star, but that would be a very serious issue at Brookings and legally, right?

So, the notion that bookkeeping, you know, that’s a minor, I mean, that’s a big deal when you say it’s … when you tell the IRS that was part of the case of the IRS. So, this was, you know, this this was income to Cohen. What? This was a repayment of an expense. It was not income. That’s a material tax misstatement too.

But the the people did not understand or willfully through ignorance or intent or both, they said the most bizarre things. Some respectable people were even saying that that second crime, the campaign finance conspiracy, was not specified by prosecutors until the closing argument or not at all. It was so bizarre. And prosecutors spelled that crime out a year ago. My, my Brookings research work, by the way, was an important part of elucidating this. We were actually in some of our work were some of the first to point out the New York statute, an election conspiracy that prosecutors ended up relying upon. That was the core of their case for that second crime.

They in the end, they only argued one crime to the jury. Conspiracy under New York Statute 17 152 to interfere with an election through unlawful means. And the jury found Donald Trump intended to commit that crime and covered it up. They had to find that, to find the felonies.

DEWS: So, Norm, another issue that former President Trump and his supporters have raised to criticize the trial outcome is that presidents should have absolute immunity from criminal charges for official acts as president. And also it’s my understanding that this is one of the former president’s defenses in one of the other three cases pending against him right now, that presidents have absolute immunity for official acts.

EISEN: Now, it came up in the New York case, too, and I’ll tell you about that in a minute. This is the 2016 election interference case, and I wrote a book, Trying Trump: A guide to the trial . Trying Trump , a guide to his first election interference criminal trial. And that there was some controversy about that because was it an election interference case. Well, the prosecutors indubitably tried it as one. The jury convicted Trump for covering up the intent to interfere with an election. So, that question was resolved in the 2016 case.

But the 2020 case, also referred to as the attempted coup case that is in federal court in D.C. and also in Georgia state court against Trump for Georgia’s specific actions, that is the that is the very serious grave election interference from 2016 on steroids where they tried to, you know, a much larger version of this essentially voter deception to grasp power. That’s the structure of it.

Now, in 2020, they say, oh, this is at the Supreme Court. We’re waiting for a ruling. The Supreme Court has been … should have decided this five months ago when they were first presented with the question. Trump says, I’m presidentially immune, you can’t come after me for an attempted coup. Notoriously, Fred, he said, even if I sent Seal Team 6 out to commit assassinations, I could not be criminally prosecuted unless something happened that has never happened in almost two-and-a-half centuries of American history: impeachment and conviction at trial. And listen.

So, that bizarre proposition is up at the Supreme Court. I don’t know why they needed five months to decide that. Are they going to say yes, presidents could commit political assassinations? Of course not. The, you have to wonder if some of the former president’s allies on the court are not intentionally stalling this. This issue of presidential immunity should not stop, and I think will not stop, the federal prosecution when it’s resolved. Technically, it won’t stop it, but it’s taking so long that trial probably can’t be finished before the election. They tried it in New York, and it was rejected again and again.

It shows you you don’t have to take six months to throw out this ridiculous argument. They gave it the back of the hand in federal court. The case was removed in federal court at one point in New York. Sent back—the judge said there’s no such thing—sent back to the state court. They tried again in state court. It was dismissed out of hand, and it withered on the vine and died.

DEWS: Staying on that question of how long these trials are taking. Again, based on your extensive experience in the legal profession, it feels to a lot of people that it’s taking the wheels of justice a very long time to turn. Charges in the current case we’re talking about were filed over a year ago. The classified documents case that’s in Florida right now is seeing lots of delays. We’re three years past the events of January 6th. Why does it feel like the wheels of justice turn so slowly?

EISEN: Because they do as slow as as slow as a wealthy, powerful, experienced, defendant can cause them. That’s what’s happening here. Donald Trump is throwing sand in the gears of justice, constantly trying to slow them down. That’s what was so very impressive about Judge Merchan in this New York case and Alvin Bragg. They just never let up. They drove it through. They pushed it through. And it’s amazing that we got even one trial in.

I do think we’ll get a mini trial, so we’ll get like one-and-a-half. Because in the worst-case scenario, the Supreme Court at the end of June will announce a test that presidents are immune only if the following narrow circumstances are met. And they’ll remand that case back to Judge Chutkan and the United States District Court for the District of Columbia, the trial court to apply the test. And Judge Chutkan should have a mini trial to do it. She should take testimony, evidence, documents and determine if the test applies or not.

And of course, this conduct of Trump’s by any test is not immune. So, she should say, I find, you know, there was an attempted coup and it’s not immune. And then schedule a trial for as fast as she can if the Supreme Court goes that way. But, you know, you can’t, you you can’t always go fast when you have a very determined defendant like Trump. And he’s been effective in slowing things down.

DEWS: Also, Judge Merchan he set sentencing for Donald Trump for July 11th. You’ve written that the former president should be incarcerated. Why is that?

EISEN: Well, he should be sentenced to incarceration . There will be no incarceration before the presidential election in 2024. I believe that at that sentencing on July 11th, the judge should take account of the fact that these are very serious crimes of falsifying records to cover up an intended conspiracy to interfere with the election, that many people in New York who commit this crime, even first-time offenders, with a serious criminal intent—and what could be more serious than interfering with an election in a democracy?—many people do get jail time.

So, Trump has committed a more serious crime than any of them. That he’s been totally unrepentant. He even violated a gag order, was held in contempt ten times for making comments that could be dangerous to witnesses and to jurors. And, that it’s important to sound the alarm that you can’t get away with intending to interfere with an election, particularly when the former president has made comments that he won’t accept the 2024 election either if it doesn’t go his way.

So, both for deterring him and others from this kind of conduct and for all those other reasons, I think a jail sentence is appropriate, but the judge won’t require him to report to jail. That’ll be pending appeal.

DEWS: Well, finally, Norm, I want to end on this question. It’s something that everyone’s talking about. What impact, if any, do you think this will have on the rest of the presidential campaign and election in November? And I’ll note that supporters of former President Trump say that this trial and verdict itself is election interference.

EISEN: Holding any American accountable for conduct that all Americans would be prosecuted for it if they did it—if you or I falsified 34 documents, we would be prosecuted too; this happened in 2016, starting in 2016, it’s about time. You can’t blame, the timing on anybody but Trump. He’s furiously fought it. He went to the Supreme Court to stop the work of the Manhattan DA twice. So, the timing is is is Trump’s fault, as is the underlying conduct. So, I don’t think it’s, election interference. I just think that’s that’s inaccurate. There’s no evidence of that.

In terms of the what the impact will be, the polling impacts appear to be substantial. We’ve had a number of polls, and they’ve returned numbers like 50% of independents and a non-trivial number of Republicans think that Donald Trump should leave the race because of this verdict. So, it’s showing a profound impact on the groups that he’s going to need to persuade if his contest is to be successful.

So, we’ll see. It’s it’s a long ways out. But if you get the combination of this verdict and that mini trial, it might very well have an impact, but that only only time will tell.

DEWS: Well, Norm, there will be a lot more to see and say, and I look forward to talking with you more about it in the future. I also want to let listeners know that they can read your analysis of this trial and other legal cases on CNN, and they can visit our website to learn a lot more about you and your research at Brookings. So, once again, Norm, thanks so much for sharing your time and your expertise.

EISEN: Thanks, Fred. I appreciate you having me back. See you soon.

Campaigns & Elections Courts & Law

Governance Studies

May 15, 2024

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How Prosecutors Made the Case Against Trump

Over six weeks and the testimony of 20 witnesses, prosecutors wove a sprawling story of election interference and falsified business records.

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By Kate Christobek

• May 30, 2024

For years, prosecutors debated, fought and even, in at least two cases, resigned over the fate of the Manhattan district attorney’s investigation into Donald J. Trump. Some legal experts predicted it would be the downfall of the district attorney, Alvin L. Bragg.

But on Thursday, a jury swiftly and decisively vindicated the risky strategy that Mr. Bragg employed to bring 34 felony counts against the former president.

Prosecutors were helped by state election law, two judges who allowed their novel legal theory to proceed and their ability to make the most of a high-risk witness, Mr. Trump’s former fixer, Michael D. Cohen.

The jury’s verdict — guilty on all 34 felony counts — represented a landmark victory for Mr. Bragg, who claimed a place in history as the first prosecutor to indict, prosecute and convict a former U.S. president.

“I did my job,” he said at a news conference after the verdict. “Our job is to follow the facts without fear or favor and that’s what we did here.”

The Trump Manhattan Criminal Verdict, Count By Count

Former President Donald J. Trump faced 34 felony charges of falsifying business records, related to the reimbursement of hush money paid to the porn star Stormy Daniels in order to cover up a sex scandal around the 2016 presidential election.

Prosecutors had to persuade jurors that Mr. Trump had falsified records to cover up a sex scandal that threatened to derail his 2016 presidential campaign. They faced an uphill battle, taking jurors on a complex and winding decade-long journey from a Lake Tahoe, Nev., celebrity golf tournament all the way to the Oval Office.

They were buoyed by the fine print of New York State law. Prosecutors needed to show only that Mr. Trump “caused” the business records to be false, rather than orchestrating the scheme or personally falsifying them.

But to make the case that Mr. Trump’s actions rose to the level of a felony, they also had to show that Mr. Trump falsified the records to conceal a second crime. This element of the case discouraged Mr. Bragg’s predecessor, Cyrus R. Vance Jr., from moving forward. But Mr. Bragg, a career prosecutor and something of a legal wonk, pushed his prosecutors to scour the penal code for a workable theory.

After months of internal deliberations, Mr. Bragg settled on an argument that Mr. Trump had violated an obscure state election law. This novel and untested theory — applying a state election law to a federal campaign — became fodder for Mr. Trump’s lawyers, who argued that the prosecutors’ case was flimsy at best. Two judges ruled that the prosecutors had legal grounds to pursue the case, but it will also have to withstand an appeal, which Mr. Trump has already indicated he will file.

Over the course of six weeks and the testimony of 20 witnesses, prosecutors wove a sprawling yet granular story of election interference and falsified business records, convincing 12 New Yorkers beyond a reasonable doubt that Mr. Trump was guilty of felony crimes. They called many of Mr. Trump’s former employees and allies who, as the prosecutor Joshua Steinglass said in his closing argument, had no motive to fabricate their testimony. If anything, he added, they had an incentive to skew it to help the former president.

Their testimony, coupled with thousands of pages of documentary evidence and Mr. Trump’s own words, allowed prosecutors to bolster their case before the jurors heard from two key witnesses whose credibility would be aggressively attacked: Mr. Cohen and the porn actress Stormy Daniels.

“There is, literally, a mountain of evidence of corroborating testimony that tends to connect the defendant to the crime,” Mr. Steinglass said during his closing argument on Tuesday. “It’s difficult to conceive of a case with more corroboration than this one.”

Mr. Bragg’s prosecutors kicked off the testimony on April 22 by calling David Pecker, the former publisher of The National Enquirer and a friend of Mr. Trump, to the witness stand. Mr. Pecker spent days testifying to the bigger picture prosecutors were trying to convey: Mr. Trump’s scheme to influence the outcome of the 2016 election.

Prosecutors described for the jurors the now infamous 2015 meeting in Trump Tower where Mr. Trump and members of his inner circle devised a plot to protect his first presidential campaign. Jurors heard compelling testimony from Mr. Pecker about the scandalous stories he purchased and buried to prevent embarrassment to the Trump campaign, a practice prosecutors referred to as “catch-and-kill.”

While the jurors heard that practice was common in the supermarket tabloid world, prosecutors elicited testimony from Mr. Pecker about how his scheme with Mr. Trump — designed to aid his campaign and influence the election — was extraordinary.

From there, prosecutors methodically revealed the crux of their case: the $130,000 hush-money payment from Mr. Cohen to Ms. Daniels to cover up a sex scandal and the reimbursements to Mr. Cohen that resulted in the fake records.

Hope Hicks, Mr. Trump’s former campaign spokeswoman, described the panic in the Trump campaign just before the 2016 election, following the release of the “Access Hollywood” tape, in which Mr. Trump was caught speaking in vulgar terms about women . Keith Davidson, Ms. Daniels’s former lawyer, described how he capitalized on that concern and negotiated with Mr. Cohen to get the hush-money deal for Ms. Daniels. And Jeffrey McConney, the former Trump Organization controller and longtime loyal employee of Mr. Trump, testified about the reimbursement payments to Mr. Cohen.

Other former and current employees followed suit, slowly explained the accounting minutiae and the path of Mr. Cohen’s reimbursements with checks making their way to Mr. Trump in the Oval Office.

Prosecutors corroborated weeks of testimony with documents, recordings, emails, social media posts, phone records and text messages. Notably, jurors saw — several times — a handwritten note from the former Trump Organization chief financial officer Allen H. Weisselberg reflecting the details of the repayment plan to Mr. Cohen (which Mr. Steinglass referred to as a “smoking gun”), and heard conversations that Mr. Cohen recorded that demonstrated Mr. Trump’s knowledge of the hush-money deal.

By reading passages of Mr. Trump’s books, prosecutors depicted the former president as a frugal micromanager who always questioned his invoices, distrusted his employees and had a penchant for revenge. Because Mr. Trump decided not to take the stand in his own defense, this image was never rebutted.

By the time Ms. Daniels and Mr. Cohen were called to the witness stand, they needed only to fill in the gaps.

Ms. Daniels painted a vivid picture of what Mr. Trump was trying to hide from voters: a consensual yet uncomfortable sexual encounter in 2006 in a Lake Tahoe, Nev., hotel room, where Ms. Daniels said there was a power “imbalance” between her and Mr. Trump.

Prosecutors portrayed Mr. Cohen as “the ultimate insider” to Mr. Trump and a “tour guide through the physical evidence.” Mr. Cohen described Mr. Trump’s directive to pay off Ms. Daniels (“Just do it,” Mr. Cohen recalled Mr. Trump’s saying) and their meeting in the Oval Office where Mr. Trump confirmed the plan to reimburse him.

Prosecutors were also helped by Mr. Trump’s lawyers’ decision to call to the stand Robert J. Costello, once Mr. Cohen’s informal legal adviser. One of the defense’s two witnesses, Mr. Costello was uneven and irascible on the stand. Outside the presence of the jury, the judge called him “contemptuous.”

In an intense cross-examination, prosecutors portrayed Mr. Costello as an agent of Mr. Trump who tried to prevent Mr. Cohen from cooperating with law enforcement.

It effectively closed the loop on prosecutors’ narrative of Mr. Trump’s conduct. “The name of the game was concealment,” Mr. Steinglass said in his closing argument, “and all roads lead inescapably to the man who benefited most, the defendant, former President Donald Trump.”

Kate Christobek is a reporter covering the civil and criminal cases against former president Donald J. Trump for The Times. More about Kate Christobek

Our Coverage of the Trump Hush-Money Trial

Guilty Verdict : Donald Trump was convicted on all 34 counts  of falsifying records to cover up a sex scandal that threatened his bid for the White House in 2016, making him the first American president to be declared a felon .

What Happens Next: Trump’s sentencing hearing on July 11 will trigger a long and winding appeals process , though he has few ways to overturn the decision .

Reactions: Trump’s conviction reverberated quickly across the country  and around the world . Here’s what voters , New Yorkers , Republicans , Trump supporters  and President Biden  had to say.

The Presidential Race : The political fallout of Trump’s conviction is far from certain , but the verdict will test America’s traditions, legal institutions and ability to hold an election under historic partisan tension .

Making the Case: Over six weeks and the testimony of 20 witnesses, the Manhattan district attorney’s office wove a sprawling story  of election interference and falsified business records.

Legal Luck Runs Out: The four criminal cases that threatened Trump’s freedom had been stumbling along, pleasing his advisers. Then his good fortune expired .

Q&A on Trump’s Criminal Conviction

By Robert Farley , D'Angelo Gore , Lori Robertson and Eugene Kiely

Posted on May 31, 2024

Este artículo estará disponible en español en El Tiempo Latino .

Donald Trump became the first U.S. president, current or former, to be convicted of a criminal offense when a 12-person jury in New York on May 30 found him guilty on 34 felony counts of business fraud as part of an illegal scheme to influence the 2016 election by making payments to suppress a sordid tale of sex with a porn star.

The unprecedented conviction raises questions about what’s next for the 77-year-old man who is in line to become the Republican Party’s nominee for president in 2024.

In remarks at Trump Tower a day after his conviction, Trump called the United States “ a corrupt country ” and declared that he would be “ appealing this scam .”

(Trump also repeated many of the false, misleading and unsupported claims he has made about the judge, the judge’s rulings, the district attorney and other issues related to the trial. For more about Trump’s talking points, see our May 30 article, “ Trump’s Repeated Claims on His New York Hush Money Trial .” He also repeated false and unsubstantiated claims on other issues, such as taxes and migrants .)

Here, we answer some of the questions raised by the former president’s conviction:

What are the next steps in the case? What punishment could Trump face? Will he go to prison? Can Trump vote in the 2024 election? Can a felon run for president, hold office? Can Trump pardon himself on this conviction, if he wins?

What are the next steps in the case?

Sentencing and an appeal are up next in this case.

Sentencing by Justice Juan Merchan is scheduled for July 11. Before that date, a probation officer or someone in that department will interview Trump, and potentially others involved in the case or connected to Trump, and prepare  a pre-sentence report  for the judge. The report includes the personal history and criminal record of the defendant, and it recommends what sentence the defendant should receive, according to the New York State Unified Court System.

“The pre-sentence interview is a chance for the defendant to try to make a good impression and explain why he or she deserves a lighter punishment,” the state court system explains.

Trump’s lawyers have to wait until after the sentencing to appeal the conviction. First, Trump’s lawyers will file motions before the judge “in a couple weeks” saying why they found the trial to be “unfair,” Trump’s defense attorney Todd Blanche  told CNN  hours after the guilty verdict.

Cheryl Bader , a clinical associate professor of law at Fordham University School of Law, said these motions are typical when a defendant is convicted. The defense attorneys will ask the judge to overturn the jury’s conviction. “It’s rarely, rarely granted, and I don’t think there’s a chance that will happen in this case,” she told us in a phone interview.

Blanche told CNN that if the motions aren’t successful, “then as soon as we can appeal, we will. And the process in New York is there’s a sentencing, and then — and then we appeal from there.”

Bader, a former assistant U.S. attorney for the District of New Jersey, walked us through the appeals process. “The case is considered completed at sentencing,” she said. “At that point, his lawyers file a notice of appeal … letting the court know that he intends to appeal.”

At that point, they will also request a “stay” on the sentence, meaning a pause on imposing the sentence while the case is being appealed.

This appeal goes to the  Appellate Division, First Judicial Department  in Manhattan. The appeals court doesn’t retry the case. “They’re not going to substitute their judgment on the facts for the jury’s judgment,” Bader explained. Instead, “they’re looking for where there was error that would have led to an improper prosecution or an unfair trial.”

The appeals process would take several months to a year, she said. After the notice of appeal is given, the record of the case is gathered, including trial transcripts, the indictment, pretrial motions, evidentiary rulings, jury selection and instructions, and more. Trump could also appeal the sentencing. The lawyers need to write their arguments for all of the issues they’re objecting to, and that takes time, Bader said.

And then the appeals court needs to consider the case and write a decision on it.

If Trump ultimately isn’t successful at the appellate level, he can appeal to the highest court in New York state, which is called the  Court of Appeals . But the court decides whether or not it takes the case.

After such an appeal to the highest state court, the case would be over — unless Trump tries to appeal to the U.S. Supreme Court. But there has to be a U.S. constitutional issue for that. “I don’t see one,” Bader said, but perhaps Trump’s lawyers would try to make an argument.

What punishment could Trump face? Will he go to prison?

Whether Trump is sentenced to any time in prison is up to the judge.

Each of the 34 counts of  falsifying business records in the first degree , a class E felony, carries a maximum sentence of up to  four years in prison . The judge could decide to impose the sentences consecutively or simultaneously. However, under New York law,  20 years  is the maximum prison time that Trump could get — not 187 years, as Trump  falsely claimed  in his May 31 remarks.

Norman Eisen , a CNN legal analyst and a senior fellow in governance studies for the Brookings Institution, said that “in the most serious” cases of business records falsification in New York that he studied, “a sentence of imprisonment was routinely imposed.” Trump’s case “is the most serious one in NY history,”  he wrote  on X, predicting that Manhattan District Attorney Alvin “Bragg will likely ask for incarceration & Merchan will consider it.”

While possible, Bader, with Fordham’s School of Law, told us she doesn’t think incarceration will happen.

For a first-time convicted felon, with a low-level, nonviolent felony and a person of advanced age, “under any circumstance like that, there’d be a relatively low chance of incarceration,” she said.

“On the other hand, I could see the prosecutor arguing that here’s a man who has shown disrespect for the court system and the rule of law and has violated the court’s orders on numerous occasions. He is not remorseful. And that in order to promote general deterrence, he needs to be punished,” she said in describing a possible argument from the prosecutor.

Bader said any incarceration sentence “would be only a token amount of time to make the point that Trump is not above the law.” Other sentencing possibilities include probation or a “conditional discharge” with conditions other than incarceration or probation.

The “simplest” option might be for the judge to fine Trump, she said.

Can Trump vote in the 2024 election?

Yes, Trump can vote as long as he is not in jail on Election Day, which this year is on Nov. 5.

Trump owns homes in New York and Florida, but in 2019 he changed his primary residence to Florida. However, Florida law does not apply in Trump’s case because he was convicted in New York. Instead, New York law applies.

“If you were convicted outside Florida, your voting rights are governed by the state where you were convicted,” as the American Civil Liberties Union of Florida explains on its website.

In 2021, New York state enacted a law that “restores the right to vote for a person convicted of a felony upon release from incarceration, regardless of if they are on parole or have a term of post-release supervision,” the New York State Board of Elections says . “If a convicted felon is not incarcerated, they are eligible to register to vote.”

Can a felon run for president, hold office?

Yes. According to Article II, Section 1, Clause 5 of the U.S. Constitution, there are three qualifications to serve as president: He or she must be at least 35 years old upon taking office, a U.S. resident for at least 14 years and a “natural born Citizen, or a Citizen of the United States.”

“These qualifications are understood to be exclusive,” Josh Chafetz , a Georgetown University law professor, told us last year when we were writing about Trump’s federal indictment related to allegations of mishandling sensitive classified documents after he left office. “Anyone can be president so long as they meet the constitutional qualifications and do not trigger any constitutional disqualifications.”

“Someone can run for president while under indictment or even having been convicted and serving prison time,” said Chafetz, who pointed to the example of Eugene V. Debs, the late labor leader, who, in 1920, ran for president from prison on the Socialist Party ticket and got almost 1 million votes.

There is an exception to that rule. The Constitution says in Section 3 of the 14th Amendment that no U.S. officeholder, including the president, can serve if they are convicted of “engag[ing] in insurrection or rebellion” against the U.S. — something Trump has not been charged with either in this case or the three others he faces.

Six Colorado voters successfully sued in state court to prevent Trump from appearing on that state’s ballot, citing the constitutional amendment barring insurrectionists from holding federal office. But the U.S. Supreme Court reversed the state ruling, “[b]ecause the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.”

Can Trump pardon himself on this conviction, if he wins?

The short answer is no.

Trump was convicted in New York for offenses in violation of state law. Article II, Section 2 of the U.S. Constitution states that a president has the “[p]ower to grant reprieves and pardons for offences against the United States.” According to Constitution Annotated , a government-sanctioned record of the interpretations of the Constitution, that means the power extends to “federal crimes but not state or civil wrongs.”

In a case decided in 1925, Ex parte Grossman , the U.S. Supreme Court confirmed that interpretation, writing that the Constitution’s language specifying presidential pardon power for offenses “against the United States” was “presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the States.”

The New York governor has the power to pardon Trump for his conviction of crimes under state law. That’s currently Gov. Kathy Hochul, a Democrat. After the verdict, Republican Rep. Nick LaLota called on Hochul “to immediately announce her intention to pardon President Trump and pre-emptively commute any sentence. To not do so is to allow America to become a banana republic.” Hochul released a statement on May 30 saying, “Today’s verdict reaffirms that no one is above the law.”

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Prosecutors Got Trump — But They Contorted the Law

The first time I ever took a jury verdict, I almost passed out. I was a brand-new prosecutor, 29 years old, and had just given my first closing argument a few days earlier. Since then, the trial team and I had been whiling away our time, interrupted only by the occasional note from the jury seeking testimony or legal instructions as they deliberated. All of a sudden, we got word from the court clerk: Come on up, we have a verdict.

Let me tell you, there’s little in life that causes a burst of uncut adrenaline quite like the arrival of a verdict. I managed (barely) to hold it together as we performed the arcane, dramatic ritual that concludes every criminal trial. The judge brings the lawyers and the defendant back into the courtroom, the security officers take their places, the jury files in solemnly, and the judge asks: Ladies and gentlemen, have you reached a verdict? (Ummm, yes, Your Honor, that’s why we’re all back out here.) As I stood at the prosecution table while the jury took their places back in the box, I felt dizzy and had to use my arms to brace myself.

Moments before the jury read the verdict, my supervisor — a grizzled trial buzzsaw known for his blistering closing arguments — leaned over and whispered to me: “Whatever they say, no reaction. Don’t move a muscle.” I don’t know what I would’ve done if not for that last-second command. Maybe I would’ve been sensible enough not to react either way, but I’m not sure. As the jury read out its findings — starting with a “not guilty” on count one, to my horror, but then moving along to a string of convictions — I didn’t budge, or breathe, or blink.

The lesson I learned that day and throughout my prosecutorial career, and have come to value even more ever since, is that the jury’s verdict is sacrosanct. If a conviction goes our way, we prosecutors don’t pump our fists and celebrate, even mildly. And when a verdict goes against us, we don’t sulk. When we lose, we stand in and take it. Any emotional reaction, either way, would disrespect the judge, the jury, and, most importantly, the person whose liberty was about to be stripped. Prosecutors get to go to dinner and then sleep at home, no matter what the jury says. The defendant might not.

By any reasonable measure, the jury of Manhattanites who yesterday found former president Donald Trump guilty on all 34 charges did its job, and did it well.

They took on a civic duty from which many others fled; during jury selection, when Judge Juan Merchan allowed potential jurors who did not want to serve essentially to walk out the door, over half the assembled pool headed straight for the exits. The jurors sat through six weeks of testimony, they were by all accounts attentive throughout the trial, and they asked precise, insightful questions of the judge during deliberations. Nobody’s truly in position to say if the jury got it right or wrong; they saw the evidence and we didn’t — most of us, that is, including those like me who followed every line of testimony as it happened; there’s no substitute for seeing it play out live. Reasonable minds could have come out either way, and this jury found that the prosecution carried its burden of proof beyond a reasonable doubt. The jury’s work, and their verdict, deserve respect.

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But that doesn’t mean that every structural infirmity around the Manhattan district attorney’s case has evaporated. Both of these things can be true at once: The jury did its job, and this case was an ill-conceived, unjustified mess. Sure, victory is the great deodorant, but a guilty verdict doesn’t make it all pure and right. Plenty of prosecutors have won plenty of convictions in cases that shouldn’t have been brought in the first place. “But they won” is no defense to a strained, convoluted reach unless the goal is to “win,” now, by any means necessary and worry about the credibility of the case and the fallout later.

The following are all undeniable facts.

The judge donated money — a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind — to a pro-Biden, anti-Trump political operation, including funds that the judge earmarked for “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to “Re-elect Donald Trump, MAGA forever!”? Absolutely not.

District Attorney Alvin Bragg ran for office in an overwhelmingly Democratic county by touting his Trump-hunting prowess. He bizarrely (and falsely) boasted on the campaign trail, “It is a fact that I have sued Trump over 100 times.” (Disclosure: Both Bragg and Trump’s lead counsel, Todd Blanche, are friends and former colleagues of mine at the Southern District of New York.)

Most importantly, the DA’s charges against Trump push the outer boundaries of the law and due process. That’s not on the jury. That’s on the prosecutors who chose to bring the case and the judge who let it play out as it did.

The district attorney’s press office and its flaks often proclaim that falsification of business records charges are “ commonplace ” and, indeed, the office’s “ bread and butter .” That’s true only if you draw definitional lines so broad as to render them meaningless. Of course the DA charges falsification quite frequently; virtually any fraud case involves some sort of fake documentation.

But when you impose meaningful search parameters, the truth emerges: The charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.

Standing alone, falsification charges would have been mere misdemeanors under New York law, which posed two problems for the DA. First, nobody cares about a misdemeanor, and it would be laughable to bring the first-ever charge against a former president for a trifling offense that falls within the same technical criminal classification as shoplifting a Snapple and a bag of Cheetos from a bodega. Second, the statute of limitations on a misdemeanor — two years — likely has long expired on Trump’s conduct, which dates to 2016 and 2017.

So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) — and to electroshock them back to life within the longer felony statute of limitations — the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York State election-law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else.

The Manhattan DA’s employees reportedly have called this the “Zombie Case” because of various legal infirmities, including its bizarre charging mechanism. But it’s better characterized as the Frankenstein Case, cobbled together with ill-fitting parts into an ugly, awkward, but more-or-less functioning contraption that just might ultimately turn on its creator.

Trump will appeal, as is his right, and he’s certain to contest the inventive charges constructed by the DA. I won’t go so far as to say an appeals court is likely to overturn a conviction — New York law is broad and hazy enough to (potentially) allow such machinations — but he’s going to have a decent shot at a reversal.

“No man is above the law.” It’s become cliché, but it’s an important point, and it’s worth pausing to reflect on the importance of this core principle. But it’s also meaningless pablum if we unquestioningly tolerate (or worse, celebrate) deviations from ordinary process and principle to get there. The jury’s word is indeed sacrosanct, as I learned long ago. But it can’t fix everything that preceded it. Here, prosecutors got their man, for now at least — but they also contorted the law in an unprecedented manner in their quest to snare their prey.

This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com

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