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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.
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.
No he did not commit a crime.
So to get a felony conviction here, the prosecutor, judge and jury had to introduce multiple unprecedented or ridiculous leaps:
Here is an establishment liberal explaining why this prosecution was so unprecedented: https://nymag.com/intelligencer/article/trump-was-convicted-but-prosecutors-contorted-the-law.html
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.
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.
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.
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.
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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