gattsuru
1yr ago
Okay, so is the answer to the hypothetical then that yes the Federalist Papers would have been legal but they would have needed to include a "I'm James Madison and I approve this message" style notification?
...
...
McCain-Feingold's (and I think NY law) definitions of electioneering communications are not limited to advertisements. Famously so, given that Citizens United revolved around a case where the FEC both prohibited ads for a movie and simply showing that movie.
There are exceptions for contributions (ie costs) by independent news media reporting bonafide news, but the "stand by your ad" rules, reporting provisions, and time provisions do not have such exceptions, and some of the Federalist newspapers probably would fail the modern independence test (if only because almost all newspapers at the Founding Era were tied heavily to local political parties, or were vanity press). In practice, the FEC almost never takes such charges, because at least some would fail Mills (though Mills was about uncoordinated expenditures, and Hamilton was clearly coordinating them), but the strict text would allow them.
gattsuru
1yr ago
There are some avenues for appeal where a fact is improperly admitted as evidence or testimony, or where a jury makes an improper decision of law, albeit with a fairly high standard of error...
But it doesn't really matter. Trump (probably) can't even file an appeal until after sentencing, and there's zero chance that the New York Court of Appeals will decide the case before November (and might not even hear the case before then), in the likely event that they refuse, it'll be a year or longer for federal courts to get involved, and there are extremely limited grounds where a federal court can bypass state courts.
And while a lot of the errors here are reversible, or even cause to mandate recusal by the judge, they're not severe enough to throw out the case; even a 'victory' just starts the trial over again, and Bragg will not be dropping this case.
I think a lot of the progressive legal sphere is assuming that even if this case is overturned, it'll happen after Georgia/federal documents/whatever gets him, too (or Trump will self-moot sometime), but to anyone that isn't as far buying every charge against Trump as AshLael is, there's a non-trivial chance that Trump will eventually be found not guilty of multiple different cases... in 2025 and 2026. After he's lost the election.
gattsuru
1yr ago
I'm not sure I understand the question? Why would they be impacted by campaign finance laws at all?
While FECA is best-known for its direct contribution limits on candidate-specific communications, much of the point of McCain-Feingold in 2002 was to expand the law's definition of 'electioneering communications' to cover matters that did not target or support a specific politician directly, but also matters like 'issue ads', which focused on topic areas, if usually to highlight a candidate on those matters. In addition to restrictions on when they could run them and how they could fund them, candidates running issues ads (or coordinating with those running issue ads) were required to disclose their participation, known as the "Stand By Your Ad" provision.
This was mostly used where the third-party issue ads explicitly named politicians (such as Citizens United involving a movie about Clinton's history), but the law held a candidate was clearly identified a "specific candidate" where a communication asked to call their representative, even if this resulted in many different 'specific' candidates being involved. And while the Federalist Papers genuinely were more focused on the theoretical foundations, their calls to action and some of the more subtle components would pass this requirement.
The larger length of time between the issuance of the Federalist Papers and the local elections for the convention might have put it outside of the FECA safe harbor timeline, but I'm honestly not sure, and the Stand By Your Ad requirement probably would have applied by its strict text. (In practice, the FEC tends to avoid cases with that clear a First Amendment component, lest they get slapped by SCOTUS again.) And most FECA provisions have a 50k audience requirement and only covered audio and video, which obviously would have been hard to hit in the Founding era.
And, of course, New York law can be much more aggressive than federal law : a New York organization opposing or supporting even specific ballot issues, separate from any specific candidate, must register with the state, report to the state any donations above a certain (low) threshold, and refuse any anonymous contributions. The Federalist Papers would clearly hit that requirement by strict read of the text, though there's both official and unofficial exceptions for organizations whose free speech the ACLU cares about. I think the Federalist Papers could also hit the PAC requirements by a strict read of the text, but I'd have to look through that in more detail to say for sure.
gattsuru
1yr ago
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.](https://nymag.com/intelligencer/article/trump-was-convicted-but-prosecutors-contorted-the-law.html)
((It's not clear that the underlying crime was actually the federal campaign finance matter; the jury instructions just reference 17-152, which itself requires "unlawful means", and the judge verbally instructed the jury to pick any combination of FECA, other paperwork record violations, or state tax laws.))
Those surveys tend to back this up: the lightest or attempted theft in this page is still 300 USD in Ramirez, Murray in the multiple thousands, Kirkland for 350k USD(!). I can't find exact numbers for Freeland or Holley, but napkin math puts even a short duration puts it around 200 USD/month and Freeland covering multiple months, and Holley's insurance fraud claims are almost certainly closer to Murray than Ramirez. In this case, the erroneous classification probably increased, rather than decreased, Trump's final tax payment.
gattsuru
1yr ago
In theory, it's a serious case, but if Willis gets booted, much of her office will be booted too, and almost none of the alternates have anywhere near the interest in trying the case.
((Also, the Georgia RICO statute dates back to at least the 1980s, and despite the popular history version, 1980 Georgia was not a deep red state.))
gattsuru
1yr ago
I think people should take it seriously when those on a pathway to a position of power suggest people should -- just morally, not legally -- accept a couple percentage point risks of death rather than be capable of defending themselves against an illegal assault, and accept ejection from public fora before either.
If you do not want to share so much as a country with me, then you will at most be someone I occasionally argue with on the internet--nothing more--and my commentary about you will reflect that.
Yeah, I'd gotten the feeling that's how things were going. I'd hoped for a different answer to the naive experiment, but if the answer is "The friend-enemy distinction matters", Litany of Tarski go.
gattsuru
1yr ago
And I'd be lying if I didn't look with grim satisfaction at the place others said would turn into a progressive monoculture and see that it has, despite being quiet, remained precisely the thoughtful discussion space I hoped it would be.
Of writers that could be plausibly described as outside of progressive monoculture (or at least outside of the ethos that formed theSchism, you and I (and I guess DuplexFields?) seem the only current significant overlap between TheSchism and TheMotte, and I'm marginal. Lykurg480 stopped posting here about seven months ago, professorgerm/desolation set their motte account private, ymeskhout and ChrisPratt haven't posted in the schism for years and what they did post were pretty mainstream progressive stuff.
I'll disclose that I upvoted FCFromSSC's "I do not think I share a common understanding of peace and justice with you." I'd be interested to know if you read, upvoted, and/or downvoted it, but it's probably best that I don't know, and ultimately it doesn't really matter if you and Numbers never had similar discussions on the schism by accident, or by plan.
If the overlap between here and theschism were a success story in the sense that we disagreed on matters but could still have serious conversations, than it'd be part of the solution. If it's just a race between those who don't want to bring up the disagreements and those who know they can't, then it's just a top hat and monocle on top of the problem.
gattsuru
1yr ago
Yes, I've edited to note you find a big distinction between just feeling betrayed by people voting for someone you hate, and not wanting to share a country or be ruled by "Would they have killed him? From a probabilistic standpoint, I'd give it maybe 1-2% odds at most assuming he was passive/compliant."
There's an obvious difference, but as always the problem is and remains why the distinction matters. Clearly you care, and there's no small number of people who feel very strongly the exact opposite direction. I'm willing and happy to engage, to the extent that I'm allowed to engage, with questions like that at TheSchism if there's a chance of exploring the deeper disagreement.
This discussion, and that you find the current state of the subreddit a success, sounds very much like that's not the point of "the thoughtful discussion space" you hoped theschism would be.
gattsuru
1yr ago
Or, if we're looking to 2020:
So—yes. When it comes down to it, with everyone who supported Donald Trump, "I'm ready to bury the hatchet" is about as uplifting and positive I can get. I didn't support Obama when he was in office. I felt like Bush was a good man who would be vindicated by history. I wanted McCain to win, then Romney. I grew up emotionally fully in the camp of Team Red, frustrated at how much it felt as though the left hated and misunderstood me, and I felt deeply personally betrayed when Team Red embraced Donald Trump, as if everything I had ever hoped about them was a mirage and they really did want to be as bad as the left always claimed they did. I can put the past in the past, but I can't pretend I don't strongly wish that particular chapter of the past never even came close to happening.
Sorry, I'm trying to not to take out a bad mood and what I see as a repudiation of Trace's entire ethos on him, and I get the distinction TW's trying to move around ("I'm not going to write off the half of the country who supported him"). But it's hard to read this conversation and not see my (and I guess @drmanhattan16 's?) participation in TheSchism (and TW's twitter sphere) as part of the problem.
gattsuru
1yr ago
Thanks for the warning. Homeworld 2 had turned me off enough, I guess I'll put this along with the X series as having jumped the shark.
Anyway, I've tarried long enough (without even mentioning the reportedly excellent Cataclysm, which I haven't played!).
It's an excellent (though probably no-longer canon) piece, mixing a bit of cosmic horror with some fun new mechanics and giving the Bentusi a lot better a characterization and sendoff than Cataclysm 2 did, imo, avoiding a lot of the weird chosen-oneisms in favor of Alien-style truckers in deep shit. The Beast is a shocking and chilling monster, and the fight against it never feels either unfair or canned.
The shield mechanics in particular were a blast: Sentinel fighters could link into powerful geometric shields that, when fully upgraded, can block everything but fightercraft... at the cost of the Sentinel itself becoming a sitting duck, and individual panels of the shield being vulnerable to sustained fire even from attacks it can block. They were seldom things that turned the tide of battle, especially in multiplayer, but the possibility an opponent might have picked up enough of them made a lot of other mechanics work very well, without mandating annoying micromanagement.
(The last boss of the campaign missions do end up being a bit of a gimmick, as a downside, though it was still pretty fun the first time, imo.)
gattsuru
1yr ago
Plus, to be anything more than useless lone-wolf terrorism would require organization...
I'm... not so optimistic. I think people here have spent too long in white-collar environments. While I'd expect that anything going hot will involve more garbage person emotional spasms than cold-blooded planning, a serious and dedicated red team attacker with even a moderate amount of certain infrastructure knowledge could cause massive amounts of deaths, infrastructure costs, and/or economic costs, and it only takes a couple highly-reported bad actors for the processes to become Common Knowledge as something that can happen.
That passivism and atomic individuality makes the low-capability people a lot more prone to They Kept Using Discord problems, but despite the increasingly common progressive assumptions, not everyone in that field is low-capability.
That's still not enough to take control over large geographic locations (or even a CHAZ), if that's what you mean, but not everyone's going to have the same idea of what 'winning' means. The sort that take shutting down large parts of New York City are just, you know, not mine.
gattsuru
1yr ago
Also, murdering anyone who wears those tattoos without going through the necessary gang initiations. I could see the false-positive rate being a little higher, and I'm skeptical that El Salvador's actual murder rate has dropped as far as the reported murder rate, but a lot of the due process concerns are... misplaced or based on poor understandings of the environment (or, conversely, what due process looks like in the United States).
gattsuru
1yr ago
That's an argument that it will not win; it's not an argument against doing it. Indeed, if actually sure you're really doomed, a lot of arguments against escalation -- what happens with the next step on the wheel, what if we could delay or bargain -- become a lot less compelling. Even doomed lashing out can be expensive, and there's a lot of self-defense arguments about how dangerous 'unarmed' people can be.
I don't think we're there, yet, though I'll admit the last week has not been encouraging.
gattsuru
1yr ago
Vullo is interesting, but ultimately the court leaves qualified immunity on the table, the Second Circuit is almost certainly going to give her it, and almost any plausible future case will have some excuse for why it's just slightly different enough that they get qualified immunity too, and that makes it hard to care too much. The facts for the NRA to get here were very much outliers -- had Lockton been the slightest bit less NRA-friendly to start with, or James been the slightest bit more circumspect, and that balancing test becomes even harder to demonstrate.
It's better than the carte blanche for 'nice non-profit you have here, shame if something happened to it' the Second Circuit appeals court gave, and it's nice to see even Sotomayor willing to push back on lower courts doing this stuff, but it's more going to discourage overt acts at the margins over actually making anyone whole.
Jackson's argument is that the matter should have been handled as a retaliation case, rather than a censorship one. That's not quite a dissental, but it would be a much harsher standard to show in future or unrelated cases, and maybe even in future proceedings in this one would have made it easier to rebut.
gattsuru
1yr ago
I don't think he's written too much on it in one place, but basically this: a large portion of extremists (and especially violent extremists) are just generally miserable and unlikable (and "jarringly Not a Normal Person"), lashing out in an unstable emotional spasm rather than any serious plan (and sometimes with little real connection to their ideological alignment, to the extent they even have rather than wear ideological alignments).
They're extremely dangerous individually, despite or because of all that, but it's mostly important in how little they're tied to actual concrete positions or principles; the 'real' motivating factors are more Travis Bickle Lost His Job and the manifesto's are excuses.
gattsuru
1yr ago
Yep. Before J6, I literally argued that the Red Tribe side at least wouldn't be riots, and that was a mistake, and I'm not gonna make the mistake of arguing that they'll keep managing to avoid killing people if it happens again.
Just because it'll slide into violence doesn't mean the people who have morons going first violent will win, or even that they won't be the ones most of the violence, in the long run, is aimed at.
gattsuru
1yr ago
This week's feeling more like a Lando Mollari thing than a Kosh one, but yes.
gattsuru
1yr ago
How can you tell the difference between overt political lawfare and the conviction of a felon by a jury of peers?
It'd be nice to start with :
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A law that is regularly and consistently applied, in this context, against normal people, for this level of sentence.
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A judge that either does not have a record of donating significantly to the political opponent of That Politician, and does not have immediate family who fundraise against That Politician Specifically.
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A prosecutor that did not campaign on finding the crime for the man.
gattsuru
1yr ago
Yeah, the punchline to Hrazdka's garbage person thesis is that you just need a few morons around hearing "current thing is beyond the pale!" at the wrong time, maybe thinking the wrong type of protest is Actually Allowed, and then whoops dozens or hundreds of deaths, and then it's too late for the pebbles to vote.
gattsuru
1yr ago
The big issues:
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Cohen campaign finance violations were part of a plea bargain about some much more serious charges; on top of the normal limitations of using a plea bargain (or the National Inquirer non-prosecution agreement) as evidence, there's a unusually steep chance that Cohen plead to it whether or not it was a crime he actually committed rather than face much more serious charges and as part of his pivot to go after Trump. ((This is a pretty common issue in more normal criminal law, where prosecutors will hammer on whoever they think has the least spine to get a plea that implicates the people they're really after, whether or not any of them were breaking the law.))
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The scientier requirements would normally require not just that Trump did something that concealed a crime, but that Trump be aware that he was concealing a crime; this is one of the few places in criminal law where ignorance of the law could well be a defense.
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And it requires that Trump intend his false statements conceal that crime; if Trump believed no one was going to look at the records and care, than it couldn't be fraud.
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There's also some messiness in that Cohen plead to a federal campaign finance charge. It's not clear that's what the jury (or part of the jury) considered the underlying crime, but if they did, this raises serious questions about whether a state can bootstrap a misdemeanor into a felony by relevance of a federal law. It's... not clear that's how that works.
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There's a variety of other process issues, from whether judge's family's financial interests would justify a recusal (contrast), or whether Cohen's plea and testimony should have gotten more serious disclaimers given everything going on with them, to some goofiness about Wiesselberg being required to testify or plea the fifth.
((It's also very unclear Trump cutting Daniels a check would have avoided legal scrutiny, here; there are also federal laws against using campaign funds for personal expenses, and if Trump had written it down as a campaign expense, well, how do you know he was using his pot-of-money rather than the campaign-pot-of-money.))
gattsuru
1yr ago
Guilty verdict's not a huge surprise: even before the trial started, the best Trump could really hope for was a hung jury.
Sentencing is set for July 11th (hilariously, less than a week before the RNC). There's a lot of procedural messiness here -- even by the low standards of state trials, this was a clown show, and that's before you get to the Biden campaign (!) sending Robert DeNero(?!) to argue for conviction in front of the courthouse -- but appeal is going to be a clusterfuck just as a matter of timing. Trying to get an appeal in the four months between sentencing and the election is unlikely, the first two levels of appeal will still be dealing with New York judges, SCOTUS doesn't like taking appeals directly from a trial court (might do it anyway?), and even if everything lines up perfectly, most avenues for success on appeal still only kicks the case back down.
In the short term, it's not really clear that appeal matters. Given the Carrol verdict being reported as Trump being 'found guilty of rape', I dunno that many people even considering voting for Trump will care that he's a felon; anyone who does won't care or notice about a technical appeal remand a month before the election. Republican bloodlust for lawfare aren't going to be sated, whether Trump wins or loses, by an admission of legal oopsie, whether before or after the election. Supposedly there's an array of moderates that will "kick and scream and shake my fist impotently at the sky before casting a meaningless vote against" Biden in the case of continued escalation, but I'm not holding my breath. I guess if Trump loses by anything less than an absolute landslide and the conviction is overturned after the election (or worse, after January 20th!), it'll radicalize people more?
Yay?
Longer-term... this is gonna get messy. There is very little argument to Republicans against goose-for-gander here, and while professional Democratics think they're much less vulnerable to criminal lawfare (and that the Republicans that were get elected won't be willing to risk it), whatever extent that's true today, it's not going to stay that way for long: there's no way someone can campaign against the platform of going against various scuzzy Dems. And while Dem politicians are sure that they can avoid stepping into Texas, the phrase 'conspiracy jurisdiction' is going to become Very Interesting in the next five or six years.
I think you're missing a lot of details specific to the case.
Cohen testified, and was allowed to testify, at length not just on his actions, but that his actions violated federal law, while limiting the ability of the defense to cross-examine on matters of law. The latter is fair; the former is not harmless error.
Yes, if the jury were adequately instructed. The disclaimers here, like the curative instructions, might have been usable for the typical case, but they're woefully incomplete for one here. For the matter of "INTENT TO COMMIT OR CONCEAL ANOTHER CRIME":
There's some question about whether they are, but more seriously, the jury instructions did no adequately that jurors needed to find that the intent. Again, see above link.
The state campaign finance challenges were New York election law 17-152, which itself in turn requires an 'unlawful means'; there's no swappero between federal and state campaign finance laws for this conviction.
The underlying crime that the state theorized were some combination of federal campaign finance laws, state laws about false business records, and state tax record laws. If the jury convicted based on state tax record or false business record statutes... well, there are other issues, but it would avoid the federal question. But the judge did not require all jurors to record what theory they signed onto, or even to agree on what underlying theory; if even one juror convicted on the federal campaign finance laws, the issue remains relevant and is a reversible error.
And because the unlawful means must promote or prevent the election of a candidate to be usable for 17-152 (which neither internal business records no state tax records are likely to do), it's very plausible that the jurors convicted on a FECA theory.
I mean, I doubt the New York Appellate Division or Court of Appeals would take up any issue seriously.
I think it's something more specific to the false tax records theory not having sufficient evidence for a jury to convict, and that Wiesselberg is out of the defense's control (as he's a) in Riker's and b) would almost certainly plead the fifth), but I'll admit it's definitely a less plausible matter and you're right that the defense avoided calling him more because he's a weasel and this would limit his utility in an appeal regardless of whether by strict precedent it 'should' matter.
That might be nice as normative matter, but as a descriptive one, the current sitting President coordinated with a large number of both intelligence agency spooks and tech companies to excise a negative story right before the last election. So there's your first problem.
But the more serious one is that we are supposed to live in a country of law, not a country of whatever laws someone can stretch to cover something kinda if you squint and have a really friendly judge and jury. You are not going to see a sudden outbreak of convictions for blatantly hiding information from voters, nor would any competent lawyer have informed people that it was illegal.
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