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Culture War Roundup for the week of May 27, 2024

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Breaking news. It looks like the jury convicted Donald Trump in the "hush money" case.

This verdict will likely galvanize voters come November – leading to record turnout among Republicans. I might even vote for the old rascal myself as I view this lawfare as both morally wrong and deeply destabilizing.

To make a prediction closer to home, we're now certain to cross 1000 posts on the weekly thread.

my enemies’ lawfare, my rule of law

It’s hard to take the lawfare accusations seriously.

  • there are tons of high level republicans who are not subject to prosecution, with the obvious explanatory difference being that they, you know, didn’t commit crimes

  • dem DOJs go after dem politicians for similar violations

  • the same DA goes after normal people for similar violations

This looks like a case of “man does crimes, gets prosecuted for said crimes.” The only remarkable thing is that this man is a former politician with a loser cult of personality.

Let me flip it around: can you honest to god hand on the Bible imagine a scenario in which Trump committed a crime and you don’t call the resulting prosecution “lawfare?”

Edit: I also suspect that the venn diagram of people calling for Trump to lock up Hillary over the made-up email thing and people calling the prosecution of Trump "lawfare" is close to a perfect circle.

  • -18

there are tons of high level republicans who are not subject to prosecution, with the obvious explanatory difference being that they, you know, didn’t commit crimes

No the obvious difference is that they never went to war with the establishment the way Trump did. Also, admittedly Trump is publicly a liar and sleazeball so that makes a lot of people think that he must be a criminal too, which creates a favorable environment for pursuing a prosecution.

This looks like a case of “man does crimes, gets prosecuted for said crimes.”

No he did not commit a crime.

  • Paying hush money to a mistress is not illegal
  • Paying hush money as a pre-tax company expense to avoid embarrassment for the CEO is not illegal
  • Paying hush money from non-campaign funds is not illegal, in fact, arguably the opposite would be illegal. This is an area where the law is inherently ambiguous and something of a catch-22.
  • Keeping the payment of the hush money secret from the American public is not illegal
  • Trump never tried to hide the payment from the tax authorities.
  • A CEO making a false description of some expense in order to avoid potential leaks and embarrassment of a business the CEO wholly owns is not illegal. The NY law is against making "a false statement with intent to defraud." This is used in cases where an employee is defrauding the CEO or shareholders, or the tax authorities, etc. Trump cannot make a false statement that is somehow defrauding himself.

So to get a felony conviction here, the prosecutor, judge and jury had to introduce multiple unprecedented or ridiculous leaps:

  • Claiming that any false entry is inherently fraud against the state of NY. This is novel, no one gets tried for this.
  • Claiming that the false entry was in furtherance of another crime ... without actually including that crime in the indictment and without that crime ever being adjudicated in court
  • Hinting that the false entry was in furtherance of some kind of attempt at electoral fraud, but without that charge ever actually being adjudicated.
  • Arguing that this crime corrupted the 2016 election even though the crime happened in 2017
  • They had to infer that Trump actually intended to "defraud" someone, despite there being no direct evidence of this. Again, intending to make a false entry to avoid embarrassment is not a crime.

Here is an establishment liberal explaining why this prosecution was so unprecedented:

Let me flip it around: can you honest to god hand on the Bible imagine a scenario in which Trump committed a crime and you don’t call the resulting prosecution “lawfare?”

Yes, of course.

The thing about Trump is that he is a sleazy guy who lies a lot, but he is ultimately a show-man Boomer business man who listens to his lawyers and doesn't do obviously criminal things. He is not mobbed up. His faults are those of a carnival barker, not of a Bernie Madoff. There has been an enormous media campaign to portray Trump has some kind of obvious fraudster criminal but that is not actually who he is.

Edit: I also suspect that the venn diagram of people calling for Trump to lock up Hillary over the made-up email thing and people calling the prosecution of Trump "lawfare" is close to a perfect circle.

I'm in the tiny sliver of people who thought Comey got it right. He was right to have the press conference explaining what she did wrong to the American people, but also right not to prosecute. Her violation wasn't serious enough to try warrant overriding the electoral process with a judicial process.

When it comes to prosecuting the highest-level politicians, I would use this rule of thumb: If you explained the crime in a few sentences to George Washington, would he say, "what? I don't even understand why that is a crime in your era." Or would he say, "Of course that is a crime." Actually taking bribes, deliberately leaking secrets to enemy powers, executing opponents, etc, are all real crimes and should be prosecuted regardless of the person. But prosecuting high-level officials for technical crimes and gray-area crimes and crimes invented in the last 80 years gives far too much power to the bureaucracy.

If you explained the crime in a few sentences to George Washington, would he say, "what? I don't even understand why that is a crime in your era." Or would he say, "Of course that is a crime."

You don't think insider trading should be considered a crime?

Isn't that mainstream thinking among many economists?

Regardless shareholder disputes in the Dutch East Indies company are documented as early as 1605, so the concept of short sellers, insider trading, and shareholder advocates was all mainstream by the time of Washington.

I don't think we should be selectively picking and choosing lawmakers and pedantically going through their actions to decide whether their actions do or do not technically count as "insider trading" or not and then prosecuting the ones that the prosecutor chooses to prosecute at their own discretion.

Instead I think we should make a new law that unambiguously singles out lawmakers, prevents them from buying/selling/owning anything other than specially licensed (and public) index funds, limit their transactions to certain times of year, and also prevent external sources of income. Then ruthlessly enforce that law on all of them, which should be tailor-made to be less ambiguous than existing insider trading laws which are not designed with politicians in mind.

Obviously this will never happen because the politicians are the ones who make laws and don't want to cripple their own sources of income. But if it magically happened then I would feel comfortable prosecuting it.

"Hey George, some lawmakers are buying companies, then passing laws favorable to those companies. Think that should be illegal?"

It's really not hard.

That's not insider trading as it's usually defined. Insider trading is more like knowing your company had a good quarter and so buying shares before publicly releasing this news.

Yeah I suppose so. Washington seems like a pretty bright guy though--I don't think it would take him long to grasp the concept.

Insider trading can easily be compared to betting on a fixed match, something George Washington would recognize as wrong.

When it comes to prosecuting the highest-level politicians, I would use this rule of thumb: If you explained the crime in a few sentences to George Washington, would he say, "what? I don't even understand why that is a crime

Great post. I wish you would post more.

Claiming that the false entry was in furtherance of another crime ... without actually including that crime in the indictment and without that crime ever being adjudicated in court

This is the part that bugs me the most. How can a crime be asserted as a predicate fact in court when that crime has never been charged, tried or convicted?

If the argument is that the crime exists because Michael Cohen pled to it as part of a bargain, isn't that irrelevant with regard to Trump? AIUI, one person cannot be convicted by proxy of another person's trial; Trump would be entitled to his own defense.

Further, the insinuation that it is electoral fraud for a political candidate to mislead the public opens unlimited potential for lawfare fuckery. Does this mean it's possible to charge Joe Biden with Electoral Fraud for saying that his son's laptop was fake during a Presidential Debate? Or any other outright lie or even half-truth told in the course of any campaign?

I admit, seeing most active politicians from the past few decades jailed for dishonesty might be a nice corrective, but selective prosecution is not the way to go about it. It seems like this case is going to come back at the Democrats in severely unpleasant ways.

This is the part that bugs me the most. How can a crime be asserted as a predicate fact in court when that crime has never been charged, tried or convicted?

Would you feel any better if you found out that the referenced crime need not even have occurred? And that this has been the case for hundreds of years? Look at common law burglary, for example (modern statutes usually expand the definition, but we'll keep things simple). Unauthorized breaking and entering of a dwelling in the nighttime with the intent to commit a felony therein. Say Bill breaks into Tom's house at night. A neighbor sees him break in and calls the police. The police apprehend him and he's carrying a gun. Tom was not home at the time. A witness testified that Bill told him he was going to kill Tom. There's sufficient intent to prove burglary. The fact that he can't be convicted of murder is irrelevant. The fact that he can't even be convicted of attempted murder is irrelevant. The fact that it would have been impossible for him to even commit the intended murder is irrelevant. He's not getting this reduced to criminal trespass.

Attempt crimes always have allowed for mistake of fact and are not given the same sentence as the crime itself. Not only is this set of facts enough to prove burglary, it also would prove attempted murder.

This is not akin to the Trump case, because in your case we would know that the alleged felony that the burglar had the mens rea to commit was murder. But in the current case, we do have an exact crime. Instead the prosecution waved at a bunch of statutes and said its possible that Trump committed those crimes (while they and the judge didn't let Trump put on an expert witness who would have said he, in fact, did not violate those laws). This is a novel application of the law in many ways, so its not really serious to compare it to burglary.

Nor even something else like criminal conspiracy, where again you need not succeed in robbing the bank, but it is enough for your gang to buy guns and masks and bags with money signs on them, then drive to the bank, go into the bank, and if you get arrested at the front door, you still are guilty of conspiracy to rob the bank. Again, totally unlike the current situation.

Tagging @zeke5123a since this response also applies to his comment from yesterday that I didn't get a chance to respond to.

You're confusing mistake of fact with impossibility. Mistake of fact is a defense that obviates some element of the crime, the classic example being the theft of property one wrongly believes to be his own. If I take a coat similar to mine from a coat room at a bar because I thought it was mine, I can use mistake of fact as a defense because I haven't formed the sufficient mens rea. Factual impossibility, on the other hand, is generally not a defense but the opportunity to even raise it is so rare that it's not really a huge issue. The hypothetical I gave doesn't involve impossibility, though, because the conduct doesn't amount to attempted murder. There's no generally recognized point at which mere preparation becomes attempt, but it's but it's basically hornbook law that lying in wait or looking for the intended victim don't rise to that level. Cases involving this test usually focus on things like whether the bullet you fired had a realistic chance of hitting the target, which is well beyond what I presented.

The reason I presented that specific fact pattern is that it illustrates a point I'm trying to get — the intent requirements of some crimes don't require you to prove those other crimes. The crime of burglary developed at common law specifically because the act of breaking into someone's home did not in and of itself rise to the level of attempt, but the courts agreed that it was still a crime. So when New York law prohibits anyone from falsifying business records with the intent of concealing another crime, whether or not you can prove that he committed another crime isn't important. Whether or not you can even specifically identify that other crime isn't important. With respect to crimes like this, there's a certain res ipsa loquitur aspect where the mere commission of the act is evidence of intent in and of itself; if a defendant is found having broken into a jewelry store with his face concealed and in possession of burglary tools, the prosecution usually doesn't have to go any further than that to show intent. They don't have to — what some are suggesting would be required in Trump's case — give extrinsic evidence showing that the defendant broke into the building specifically to steal jewelry.

The fact that Trump may not have violated election law is therefore irrelevant. The fact that the prosecution couldn't demonstrate the very specific scienter requirements required to prove an election law violation are also irrelevant. Trump wasn't charged with violating election law. The elements of the crime he was charged with are independent of the elements of the crime he is alleged to have concealed. You may not like this, or think the DA is stretching the law, but that's just The Way It Is, and it's been that way for a very long time. If you're looking for an appellate court to overturn the conviction because you disagree with one or another of the principles involved, that's fine, but even as someone who's broadly liberal I don't know if I'd welcome that, as it would give the Warren Court a run for its money on how defendant-friendly it is.

But a necessary element of the felony is that he falsified business records as a part of a scheme to cover up another crime. In many ways you'd argue in the other direction. The element is even more difficult to satisfy. Trump needed to know how was committing a crime AND known he was covering it up. You'd have to prove both.

The argument you are making makes the misdemeanor/felony distinction moot, which is antithetical to a good reading of laws. What you are saying is that the falsification of the record itself demonstrates the intent to cover up a crime, but that makes no sense. Falsification with intent to defraud is the misdemeanor charge. There is the additional element of the second crime that makes the felony charge a felony. So you cant just waive it away.

This is interesting, and I might be persuaded.

Scenario A:

Let's say I mistakenly think that some completely legal act is illegal, like buying paperclips. Every time I buy paperclips for my office, I intentionally misclassify these transactions as "legal services" because I don';t want the law to know that I bought paperclips.

In this scenario, I have committed a felony, because I was attempting to conceal a "crime," and therefore fool the state, regardless of the actuality of any crime being committed.

Scenario B

Let's say I think that buying paperclips is embarassing but not illegal. In this case, I would be committing only a misdemeanor by misclassifiying the purchases, as I was not trying to conceal what I thought was a "crime?"

Scenario C

I'm not sure if buying paperclips is a crime, so just to be safe, I'm never going to admit to buying paperclips on paper. I'm going to send my lawyer out to buy my paperclips for me with his own money, and since he's my lawyer, when I pay him back, I'm going to classify the expense as "legal services," because he's my lawyer. I think I have successfully avoided admitting to the actual act and insulated myself from any crime if any crime exists. What is this? I have created layers of insulation between my willful ignorance and reality. Can intent be proven here?

Intent can't be proven in any of the three scenarios you put forward because buying paperclips isn't illegal, and legal impossibility is almost always a complete defense. In any event, whether you think something is legal or not is irrelevant, because in most cases, mistake of law isn't a defense. Ignorantia juris non excusat. What's tripping people up here is that the crime Trump was allegedly concealing has very specific intent requirements that does require knowledge of the law, while the crimes he was actually charged with don't. The relevant analogy here is where buying paperclips actually is illegal. In that case, if you falsified records relating to their purchase you'd be guilty of the falsification whether you knew they were illegal or not.

More comments

Res ipsa is not appropriate here. If any time you falsify business records you per se are doing it for a reason to cover up another crime, then you’ve written the misdemeanor out of the statute since everything is a felony.

What is also black letter law is that texts should generally be read in a way that does not render any part surplusage.

The only way to give meaning to both the misdemeanor and felony is to treat the intent with respect to committing another crime as having to be proved without regard to the misdemeanor. This is especially true here because unlike burglary (ie why else did you break into someone’s home) there are many reasons why Trump might arguably falsify records (eg he didn’t realize it was false, he wanted to hide it from his wife, he thought it would be bad publicity unaware of the legal implications). The same inference is not reasonable.

So whilst I agree you don’t need to prove the actual other crime was committed you do need to prove the intent to commit a specific other crime was intended or else you render meaningless a large portion of the criminal statute at play and are making an unreasonable inference.

I'm not saying that res ipsa is sufficient on its own, just that there's a certain element involved when it comes to proving intent. If the falsification of the records happened in a vacuum and there was no obvious underlying motive, that would be the misdemeanor. But when you demonstrate that the concealed payments may have covered up a potential campaign finance violation, that's probably enough evidence that a jury can infer that the potential violation was behind the concealment. Like I said in the previous post, if a guy breaks into a store the prosecution doesn't have to demonstrate that the defendant was there specifically to steal a particular item for it to be anything more than trespass; the jury can infer that because there was a very obvious motive for the break-in that the defendant intended to commit a felony. The defendant can certainly argue that that wasn't his intent and present evidence supporting that, but that's a question of fact for the jury. We can argue all day about whether there was sufficient evidence of Trump's intent to commit a campaign finance violation for the purpose of the statute, but my overall point is that arguing about the specific elements of such a violation itself or the mens rea requirement to prove a campaign finance violation is irrelevant here because we're operating on two separate legal principles.

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According to this logic, if the falsification of business records is inherently proof of a cover-up of an underlying crime, the falsification of any business record is proof of an underlying crime. The distinction between misdemeanor and felony charges for this crime may as well as not exist. (Why else would you "falsify" a business record?)

You say that reversing this standard would be too lenient for defenders. Upholding this standard is a recipe for jailing almost anyone at any time.

With respect to crimes like this, there's a certain res ipsa loquitur aspect where the mere commission of the act is evidence of intent in and of itself

Yes, and the intent is obviously "don't write down the embarrassing adultery he's trying to cover up", right? Is trying to keep his despicable personal life secret a crime? If not, then isn't looking for some additional redundant intention, much less assuming it, a basic violation of Occam's razor?

It's not a crime to try to conceal personal information, obviously. But whether or not that was Trump's intent in falsifying the records is a question for the jury. My point was simply that that the statute he was charged with violating has a lower standard of proof than the underlying act itself, and that the evidence was sufficient for the government to make a prima facia case; doing so doesn't require them to prove the underlying act, or even an attempt to commit the underlying act.

Agreed (I make the point below that intent here is different from inferring intent in say “murder”).

What’s also become more and more a democrat playbook is they take law X and try to shoehorn it into an area it clearly was not meant for but say “the words say.”

Here, the business record falsification with intent to commit other crime was clearly about something like cooking the books to hide embezzlement or a Ponzi scheme et al. This case clearly was not what the law was about in any way.

Did Trump really go to war with the establishment? His largest legislative accomplishment was a huge corporate tax cut. That strikes me as about as establishment as it comes.

I get that he says things like “drain the swamp”, but it’s very unclear to me that he was anti establishment at all aside from his personality.

His personality is enough to ruin him. The Establishment wants defense in depth. It’s easier to defend your way of doing things when the Schelling point is based on personalities, rather than policies.

If the Establishment didn’t do everything it could to destroy Trump and make an example out of him, then there could be a future Trump who goes a bit further. Someone with Trump’s appeal but who could also seriously change policy and the way things are done.

It’s the same reason why progressives have ratcheted up the social movement lunacy to defend pedophiles (as MAPs) and transgenders. When all of the oxygen in the room is being sucked on these topics, it means that people aren’t challenging gay marriage (which was a controversial topic only 12 years ago). Gay marriage is effectively off-limits until the pedo-question is settled, so progressives have an incentive to waste people’s time on pedophiles so that they aren’t having to defend gays. Even though it’s a harder assignment defending pedophiles rather than gays.

Different establishment. The establishment that cares about corporate tax cuts probably has some cultural and interpersonal overlap with the establishment that is involved in New York judicial system but it is not like that they are the same set of people with coherent agenda.

The establishment is like the Man -- fuzzy concept that sometimes have informative uses but still fuzzy, which makes it too imprecise and underdefined for other uses.

Well, he LARP'ed going to war with the establishment, and the establishment had reasons, both valid and more Machiavellian for taking his LARP seriously. The "lock her up chants" were unprecedented norm-breaking, even if he never followed through with it. In many ways, Trump did the worst possible thing by taunting the bear but then being actually very weak in power and letting the establishment run roughshod over him (eg the Russia-gate investigation leading to a crippling investigation and imprisonment of his men).

I think the thing that legitimately scared the establishment is that he would transgress certain taboos, and verbally come out against the bipartisan consensus on certain issues, and rather than groveling after such transgressions he would plow ahead. That meant he could not be controlled by establishment norms in the same way most high-profile Republicans in the past have been controlled.

The other crazy thing was that the books were internal. So you’d have to think “Trump was doing this because he thought NYS might ask for his books to check on…federal campaign laws? It just doesn’t make any sense.

I was curious how the prosecutor even came to get those private books. He convened a grand jury that subpoenaed Trump's accountants for tax and business records, Trump sought to quash the subpoena with assertions of Presidential immunity, and it was adjudicated by the Supreme Court and not squashed. Aside: the decision here has some interesting history I'd never heard of before, with President Jefferson apparently engaging in a bit of lawfare against Aaron Burr.

Not being a lawyer, I was surprised that apparently the bar is very low for what a grand jury can subpoena, just about anything short of a "fishing expedition" is allowed. Do they even need to call their shots like in billiards, or can they start with the idea that there's one specific crime, and end up charging something completely different? Or do they even need a specific crime to investigate?

I've tried to find the reason that this grand jury was convened and can't find anything official. I found one report on a Manhattan grand jury that said "It is unclear what assets Manhattan District Attorney’s office will be investigating specifically," but I don't know if that's even the same grand jury that led to the falsifying business records charge. The indictment itself doesn't have any identifier like date the grand jury was convened.

So, how is one to judge whether the subpoena was a fishing expedition or not?

The argument here would be targeted prosecution. But it reminds me of the speech about the awesome power of the prosecutor. A guy like Bragg should be a million miles away from such power.