Jonathan Turley more or less abandoned good faith argument years ago in his effort to extend his 15 minutes of fame one Fox cable news hit at a time.

Holding onto his crown as the right’s favorite legal commentator hasn’t been easy for the George Washington Law professor, having forced him to take a string of dubious stances over the years to stay in the MAGA movement’s good graces. But while he’s engaged in some intellectual acrobatics and flubbed his share of easily checked historical facts to fit the preferred narrative, his latest column is striking as a veritable issue-spotter of fanciful assertions.

In his column for The Hill, Turley attempts to compare and contrast Donald Trump’s NY conviction on false records charges to a pair of Supreme Court cases in order to show how NY has abandoned the rule of law so famously upheld by the current Supreme Court. Specifically, his latest creative writing exercise cites Gonzalez v. Trevino (a retaliatory arrest claim against cops who booked a city council member for putting a file in a folder or exercising her First Amendment rights depending on which side you take) and Erlinger v. United States (where a defendant has three prior convictions qualifying to enhance a gun sentence under the ACCA, determining if two of the convictions were separate or part of the same spree requires a unanimous jury). Do either of this cases have any connection to the Trump case? No.

But this will not stop Turley, who channeled his inner Blutarsky:

Throughout Turley’s essay, you may be inclined to figuratively ask, “Germans?” to which a booking producer at Fox whispers, “Forget it, he’s rolling.”

The statute in Gonzalez had never been invoked over something as frivolous as placing a petition in a folder before. Turley runs with this:

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

Hmmm… really? Let’s check the NY Law Journal:

Oh. Well, surely those cases were treated completely differently, right? From Just Security:

Prosecutors and indeed all of us are compelled by the rule of law to consider how such a charge compares to past prosecutions. Are like cases being treated alike?

Here it appears they are. Prosecution of falsifying business records in the first degree is commonplace and has been used by New York district attorneys’ offices to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized. We reach this conclusion after surveying the past decade and a half of criminal cases across all the New York district attorneys’ offices.

Just Security then goes through a selection of past prosecutions under this statute to compare the behavior in those cases to Trump’s. In Turley’s defense, none of these involved a presidential candidate making an illegal campaign contribution to silence a porn star. To that extent, “no case like Bragg’s appears to have ever been brought before.”

But in a much more accurate way, “a whole hell of a lot of cases like Bragg’s appear to have been brought before.”

Look, there are reasons to dog this prosecution. Personally, I argued that it was a case that “coulda but shouldna” been brought. I thought the campaign finance theory, while colorable, wasn’t really viable. I see the arguments both ways, but it struck me as a Catch-22 that if campaign funds couldn’t legally be used this way, how could a contribution for this use be illegal? Maybe NY appellate courts will conclude differently. In any event, THAT is what an argument against this prosecution looks like, as opposed to just conjuring up a new reality with no effort to distinguish the prior cases brought under this law.

Having already pretended the case is a unicorn (ignoring its almost 10,000 siblings), Turley explains that, like Gonzalez, the Manhattan case was a political prosecution because…

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

Did Alvin Bragg “pledge[] to get Trump”? Well, no, he did not. The closest anyone can come to making that claim is Bragg being asked during the campaign about his ability to manage the then-ongoing investigation into Trump and citing his past work on lawsuits against Trump as proof that he would not intimidated by the significance of the moment and could faithfully pursue the facts wherever they would lead. Turley continues in his article to note, “Indeed, his predecessor rejected the case” which is also a tad misleading because Cy Vance left office with the investigation very much alive and, if any DA “rejected” the case it was… Alvin Bragg.

Bragg was thoroughly dragged by liberal critics for not immediately moving forward with a Trump indictment — a move that actually led the attorneys running the investigation began under Vance to publicly resign. From Liz Dye’s coverage at the time:

The Times reports that Pomerantz and Dunne were ready to seek an indictment charging Trump with falsifying business records, rather than fraud, which would be harder to prove. But Bragg balked at going forward with the presentment without more evidence, effectively shutting down the investigation.

To reiterate, when Turley writes that Bragg’s “predecessor rejected the case” it should really read BRAGG REJECTED THE CASE because BRAGG did not think there was enough evidence to support an indictment as of his inauguration.

Hardly a hallmark of a political prosecution. But if you flex the Reality Stone and assert that Vance killed the case and Bragg recklessly rammed it through a grand jury then… maybe it’s kinda sorta like Gonzalez.

Except not at all.

Back to Turley:

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

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

The “jury wasn’t unanimous” claim persists among right-leaning social media. It is also gibberish. The statute required the jury to determine that Trump falsified the records in furtherance of some other crime. Turley suggests the jury wasn’t “unanimous” because jurors were free to choose which (or all) crimes Trump hoped to further: tax violations, campaign finance violations, further falsifications of records.

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

The proper corollary would be jurors convicting someone of murder, unanimously agreeing that the defendant intentionally and maliciously killed the victim, while disagreeing over whether he did it out of jealousy or to reap an insurance payout. Juries don’t generally need to agree on motive to establish a conviction. Under this false records law, the underlying criminal effort is just the motive. Did Trump lie on these forms for tax reasons or campaign reasons? It doesn’t really matter since those crimes aren’t being decided. The jury unanimously agreed on everything it needed to unanimously agree upon.

That’s not to say that it might not have been better practice for the court to require the jury to signal their understanding of the intent. There is a hypothetical world where an appeal might toss, say, the campaign finance theory leaving it impossible to determine at this juncture if the jury would’ve convicted had that theory not been on the table. But this argument against the conviction is a far cry from claiming the jury had to be unanimous on this question in the first place.

Turley frames his piece around the famous Saul Steinburg illustration “View of the World from 9th Avenue,” asserting that the “rule of law” looks foreign to New Yorkers. But it’s a better depiction of late stage Turley’s legal analysis, where there’s just “things that will keep me on Fox News,” then a vast desert of dismissible facts, and then the Pacific Ocean.

At the Supreme Court, two cases lay bare New York’s legal wasteland [The Hill]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.