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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.

I guess I don't really understand. This seems to me like one of the more straightforward cases against Trump, right up there with the classified documents.

1. In 2016 Michael Cohen committed several crimes to which he later pleaded guilty, including making an unlawful corporate contribution to the Trump campaign by paying Stormy Daniels.

2. Trump reimbursed Cohen for that payment to Stormy Daniels (in furtherance of Cohen's crime) from one of his businesses.

3. The payments to Cohen claimed to be pursuant to a retainer agreement that did not exist and pursuant to legal work that never occurred.

4. The reason for the description of the payments was to conceal Cohen's crime. Trump could hardly put "Reimbursement for unlawful campaign contribution" on the checks!

So we have (1) business records that were (2) falsified for the purpose of (3) concealing another crime. The theory of the case seems pretty straightforward? According to the evidence some of the checks were signed by Trump himself. Seems hard to argue he didn't know it was happening or approve of it.

What strikes me in all this is how this all could have been avoided if Trump were less of a cheapskate. According to Cohen's testimony Trump kept trying to put off paying Daniels until after the election (presumably to stiff her) and she kept threatening to call off the agreement and go public. Eventually Trump tells Cohen and Weisselberg to figure it out. Weisselberg claims not to have the money so Cohen goes and gets a HELOC (lying to his bank in the process) to pay Daniels (the unlawful campaign contribution). I'm pretty sure if Trump had just cut Daniels a check everything would have been fine. Candidates are allowed to spend as much money as they want on their own campaigns. Instead Cohen commits several crimes to pay Daniels and then Trump commits several crimes to reimburse Cohen. There was a less criminal way to do this!

making an unlawful corporate contribution to the Trump campaign by paying Stormy Daniels.

The reason for the description of the payments was to conceal Cohen's crime.

Why is this Cohen paying off Stormy Daniels with hush money so she doesn't hurt Trump's reputation for campaign an illegal campaign contribution?

I'm trying to wrap my head around how the actual spirit of the law was violated here. In a post Citizens United world I thought it was decided money is free speech (which I find astoundingly stupid and wrong), and effectively there's no such thing as too much money spent or proper use anymore, so long as certain bullshit forms are obeyed. If Cohen declared himself a PAC would he not be able to spend money on Trump's "mistresses" on his behalf? Is the special code words weren't evoked the problem? Frankly why can't trump pay off women as a campaign expense? What about a personal expense?

Politicians spend hundreds of thousands paying and being paid in wine and dine influence sessions, speech engagements, etc. all the time - as is my understanding. We all know this. It's not illegal. But a politician forwarding money to silence someone to protect his reputation is suddenly an unconscionable use of money in campaign/politics? Why?

Why is this Cohen paying off Stormy Daniels with hush money so she doesn't hurt Trump's reputation for campaign an illegal campaign contribution?

Because it was undertaken with the purpose of influencing the election and in coordination with a candidate in that election.

If Cohen declared himself a PAC would he not be able to spend money on Trump's "mistresses" on his behalf?

If he had done so without any coordination with Trump then probably. PACs aren't supposed to coordinate directly with campaigns, that could be its own violation.

Is the special code words weren't evoked the problem? Frankly why can't trump pay off women as a campaign expense? What about a personal expense?

He arguably could pay them off as a campaign expense. If Trump had paid Daniels directly, out of either campaign or personal funds, that would likely have been legal. If Cohen made the payment and Trump reimbursed Cohen out of campaign funds that also might have been legal (it converts Cohen's campaign contribution into an operation expense). But if Trump did any of that he'd have to report the payment to the FEC, which he didn't want to do.

If Trump had paid Daniels directly, out of either campaign or personal funds, that would likely have been legal. If Cohen made the payment and Trump reimbursed Cohen out of campaign funds that also might have been legal (it converts Cohen's campaign contribution into an operation expense).

Hilarious, especially because this story keeps changing, depending on where we are in the argument. Most people used to say that if Trump reimbursed Cohen out of campaign funds, that would have been illegal use of campaign funds. The FEC says that there is an "irrespective" test, and so if Trump would have wanted to keep Daniels quiet irrespective of the election (quite plausibly), one would even say that it would be illegal for him to pay her from campaign funds. How do you see significant daylight between "Trump pays Daniels directly out of his personal funds," and, "Trump pays Daniels indirectly out of his personal funds," for purposes of campaign finance law? Statutory cites would be ideal, but even an FEC interpretation would be interesting.

Like, surely there are plenty of hypos here where you would agree. Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge? Suppose Trump/Cohen were at a vendor, planning to complete a sale of a bunch of red TRUMP 2024 yard signs that Trump plans to distribute. Trump's plan is to pay for this from his personal funds, but he forgot his wallet, so Cohen pays for it, and Trump pays him back when they get back to his house. We have Supreme Court precedent that Trump is allowed to pay for election-related things from his personal funds. The FEC says very little about this, because they basically don't touch expenditures of personal funds by candidates. They have plenty to say about things like extending credit when you're paying it back via campaign funds (or a PAC), because that is directly about the use of campaign funds (or PAC funds). This is about personal funds.

Like, surely there are plenty of hypos here where you would agree. Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge?

Lunch was not bought for the purpose of influencing the election. Not that there's anything wrong with trying to influence an election, that's what campaigning is. But the campaign finance rules attach.

Suppose Trump/Cohen were at a vendor, planning to complete a sale of a bunch of red TRUMP 2024 yard signs that Trump plans to distribute. Trump's plan is to pay for this from his personal funds, but he forgot his wallet, so Cohen pays for it, and Trump pays him back when they get back to his house.

My reading of the law is it would depend how much the signs cost. A payment made on behalf of a candidate counts as a donation to that candidate, and as far as I can tell this is true regardless of whether the money is paid back later or not. So the question is whether or not the amount comes in below the threshold that Cohen is allowed to donate to Trump for campaign purposes.

A payment made on behalf of a candidate counts as a donation to that candidate

No. A payment made on the behalf of a campaign counts as a donation to that campaign. (This would be the case if the campaign reimbursed him from campaign funds.) Similarly, a payment made on behalf of a PAC counts as a donation to that PAC. (Again, this would be the case if a PAC reimbursed him from PAC funds.) This was a payment made on behalf of an individual, in his personal capacity. Please cite any statute or FEC interpretation that regulates this behavior as a criminal matter.

§30116(7)(B)(i):

expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate;

Ok, let's walk through a hypo to see why the FEC's guidance documents walk a tightrope between interpreting this in a way that lets them get at serious concerns and using this language in a more direct way that runs the risk of jeopardizing the entire edifice of the statute.

Let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he puts on his own lawn. Is that a "contribution to a candidate"? A "contribution to a campaign"? Reportable? Criminal?

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The context of that is that it is a campaign expenditure. You’ve stolen a base assuming it is a campaign expenditure.

You should read what Brad Smith wrote about mixed motives and campaign finance law. Your view seems to be that subjective intent matters but then you create a wholly ungovernable and dangerous scheme for candidates.

Imagine there is a debate coming up. Candidate wants to look sharp so goes to buy a new suit. Well his motive is to look good for campaign purposes so should he use campaign funds? If he does, then he opens himself up to claims that he improperly used funds to pay for the campaign because after the debate he still has this fancy suit (ie there is a mixed use).

Let’s say his proud mother buys the suit for him. Did they run into a campaign finance problem because subjectively it was for the benefit of the campaign? Or was it? Was it just a proud mom having affection for her son and proud of where he was?

Let’s say the candidate is friends with Person X. X regularly has lunches with Y and Z and routinely brings other interesting people to lunch. X brings along the candidate because he wants Y and Z to vote for him but also thinks the candidate is interesting and it would make for an enjoyable lunch. X pats for the expensive lunch. Campaign contribution? If so, does the candidate have to pay for brunch with campaign funds? Now you created jeopardy in that case.

All of these hypos show why mixed motive cases should not be policed because they create untenable and unknowable catch 22 situations for candidates. It is why Brad Smith believes the rules are bright line.

So I think, much like the Colorado case you got dreadfully wrong, you aren’t thinking about the havoc your interpretation of the rules would wrought. Once you think about that, then it becomes clear it can’t be what the system was intended to do.

To be clear, this isn’t a resurrection of the church of the holy trinity. But it is asking in dense texts with hard to understand meanings “does this interpretation create such a crazy system that we don’t think ambiguous phrases should be constructed to lead to such a crazy result.” That is, it is a clear statement principle somewhat similar to the major questions doctrine.

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You’ve ignored the mixed motives question which is the whole ball of wax here.

According to the jury instructions, the way the law handles mixed motives is as follows:

Under federal law, a third party’s payment of a candidate’s expenses is deemed to be a contribution to the candidate unless the payment would have been made irrespective of the candidacy. If the payment would have been made even in the absence of the candidacy, the payment should not be treated as a contribution.

Citing that as the law is fucking hilarious. Dude is a lowly biased state trial judge. Scalia made the comment that FECA is the most highly complex law that is hard for SCOTUS justices to parse.

So here we have a biased judge who never in his life had to look at this law (ie is a complete noob) and who is a trial judge in general (ie not appellate and therefore not probably the best person to articulate the law) in one of the hardest areas in US law, but you are citing his fucking jury instructions as if that sheds any light on the law? Especially when a former head of the FEC (appointed by Bill Clinton) is saying otherwise.

I don’t know if you are doing that because you are just naive here because you’re Australian or otherwise but it just shows such a lack of knowledge.

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What about it being a loan from Cohen, instead of a donation? Does that work?

I don't think that makes a difference. Otherwise you would have a loophole where a billionaire supporter goes and "loans" his preferred candidate some enormous sum of money on "pay it back when you can (aka never)" terms.

To be clear, here are my thoughts on how this could have been structured lawfully. My reference is the FEC guidance on contributions and the FEC's definition of expenditures.

1. Trump pays Daniels himself. If Trump paid Daniel for the purpose of influencing the election it's an in-kind campaign contribution from the candidate to the campaign. The campaign has to report it in their FEC filings but this is otherwise legal. If Trump would have paid Daniel whether or not he was campaigning for president he doesn't have to report anything.

2. Cohen pays Daniels. If Cohen would have made this payment independent of the election (ignoring the crimes Cohen committed to get the money) it would be legal. If Cohen made this payment to influence the election I'm not sure there's any way to do it legally. The FEC guidance indicates individual in-kind campaign contributions can be converted into campaign operating expenses by reimbursement but also says they are considered in-kind contributions until the reimbursement happens. Since the contribution was way in excess of the limit it would seem to be an unlawful contribution from the beginning.

How do you see significant daylight between "Trump pays Daniels directly out of his personal funds," and, "Trump pays Daniels indirectly out of his personal funds," for purposes of campaign finance law? Statutory cites would be ideal, but even an FEC interpretation would be interesting.

It depends on what is in the "indirectly." If the indirect payment involves someone else making an unlawful in-kind campaign contribution it would be a campaign finance violation (though not for Trump). Trump isn't charged with any campaign violations in the instant case anywyay.

Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge?

If the lunch was a campaign expenditure and they did not report it or the amount was in excess of the legal maximum it could be a campaign finance charge.

Suppose Trump/Cohen were at a vendor, planning to complete a sale of a bunch of red TRUMP 2024 yard signs that Trump plans to distribute. Trump's plan is to pay for this from his personal funds, but he forgot his wallet, so Cohen pays for it, and Trump pays him back when they get back to his house.

If the initial amount of the payment was in excess of the legally allowable maximum for in-kind contributions I think this would be a violation as I describe in (2). If it were below that amount I believe Trump's reimbursement converts Cohen's in-kind contribution into a candidate in-kind contribution.

If Trump paid Daniel for the purpose of influencing the election it's an in-kind campaign contribution from the candidate to the campaign. The campaign has to report it in their FEC filings

I'm already off the train here. I don't think this is true or supportable. Can you find any language to support this claim? Candidates are free to spend their own money, and it is not a campaign expense or contribution. Nor do I believe that there is any statute, guidance, or caselaw that would require this to be reported. EDIT: For example, if Donald Trump took a five dollar bill out of his own pocket, money that has never been given to the campaign, has never touched the campaign books in any way, it is his money from his own personal income, and spent it on a lawn sign that he puts on the lawn in front of his own house, I do not believe that this would trigger any reporting requirements. Do you agree/disagree?

If Cohen would have made this payment independent of the election (ignoring the crimes Cohen committed to get the money) it would be legal.

Agreed.

If Cohen made this payment to influence the election I'm not sure there's any way to do it legally.

Binding Supreme Court precedent says the opposite (unless you have something further that you meant to imply but didn't actually state). For example, I could take money out of my pocket right now and spend it on something that I think would influence the election (e.g., a lawn sign promoting a candidate), and that is absolutely legal.

Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge?

If the lunch was a campaign expenditure

What would make it a campaign expenditure? You need to spell out what the test is. Not an "if", because that is the precise question that I'm requesting an answer to and the crux of the issue.

candidate in-kind contribution

There is no such thing as a candidate in-kind contribution. There can be campaign in-kind contributions (and PAC in-kind contributions for another example), but there is no such thing as a candidate in-kind contribution.

The FEC has a whole page discussing in-kind contributions to campaigns from candidates.

Candidates can pay for campaign expenditures with personal funds. When these expenditures are not to be reimbursed, the committee reports them as in-kind contributions from the candidate. The committee also reports ultimate payee (i.e., the vendor) for the expenditure.

...

For example, if Donald Trump took a five dollar bill out of his own pocket, money that has never been given to the campaign, has never touched the campaign books in any way, it is his money from his own personal income, and spent it on a lawn sign that he puts on the lawn in front of his own house, I do not believe that this would trigger any reporting requirements. Do you agree/disagree?

That is correct, but that's because there is a minimum dollar amount of $200 before candidate campaign expenditures become reportable in-kind contributions.

Binding Supreme Court precedent says the opposite (unless you have something further that you meant to imply but didn't actually state). For example, I could take money out of my pocket right now and spend it on something that I think would influence the election (e.g., a lawn sign promoting a candidate), and that is absolutely legal.

I should have clarified, if Cohen makes this payment in coordination with Trump and his campaign it is unlawful. If Cohen did this spontaneously, of his own volition, it would be no issue.

What would make it a campaign expenditure? You need to spell out what the test is. Not an "if", because that is the precise question that I'm requesting an answer to and the crux of the issue.

I did not have a specific hypo in mind but the FEC page on day to day operations gives meals as something that can conditionally be a campaign expenditure.

Candidates can pay for campaign expenditures with personal funds.

Bolded the key part.

minimum dollar amount of $200

Ok, so let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he put on his own lawn. Reportable? Criminal?

the FEC page on day to day operations gives meals as something that can conditionally be a campaign expenditure.

Aye, this again contributes to the claim that there is a distinction between a "campaign expenditure" and things that are not campaign expenditures. For example, Trump can take his campaign staff out to lunch and pay for it all using campaign funds, and this is a campaign expenditure. On the other hand, Trump can take his buddies from the golf course out to lunch and pay for it using his personal funds, and it is not a campaign expenditure... even if he thinks that this lunch has the possibility to in some way increase his chance of winning an election (e.g., he thinks that he will be incredibly charming and that they will be positively influenced to independently support his candidacy).

This is an obvious case where there is the possibility of mixed motives, which has been a huge thorn in the side of most arguments on several Trump-related topics. If Trump takes his golf buddies out to lunch, he may both have a motivation that they're going to like him and that it will increase their chances of doing business with him, so he has personal/business motivations. He may also have motivations that this same positive emotion might inspire them to support his candidacy. It is extremely difficult to tease these apart, which is why most of the rules try to avoid touching on these issues. They try desperately to avoid it (and they never bring such questionable cases, due to risk that SCOTUS will strike down larger swaths of campaign finance law than they would like), because there are obvious legal theory and constitutional issues. Even questions for things like lunches are a bit vague on this, likely precisely for this reason. Therefore, this is why they would have to build a case that the lunch is, indeed, a "campaign expenditure", but this requires facts, context, and argumentation. It's easiest and most clear to just identify the ultimate source of the funds - if it's coming from actual campaign funds, it's reportable. If it's not campaign funds, but a candidate took out all his campaign staff, in the same way that he would normally take them out and use campaign funds, but he used personal funds this time? Really hard case, though I doubt anyone would bring it unless they had a vendetta against the candidate. The candidate takes out his golf buddies, pays with personal funds, and maybe has some mixed motive that it might help his candidacy, too? Highly doubtful.

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The kind-of-arbitrary rule the system has somehow decided on is that you can limit contributions to candidates, but you can't limit people speaking their own mind. So you can donate unlimited money to a PAC but that PAC can't coordinate with the candidate.

So in the hypothetical where Cohen declared himself a PAC he would have violated election finance laws by coordinating his activities with Trump.

making an unlawful corporate contribution to the Trump campaign by paying Stormy Daniels

Why is paying Stormy Daniels a campaign contribution? Why doed Cohen pleading guilty prove Trump committed a crime too?

Trump reimbursed Cohen for that payment to Stormy Daniels (in furtherance of Cohen's crime) from one of his businesses.

So we have (1) business records that were (2) falsified for the purpose of (3) concealing another crime.

Please note that campaign finance violations are the FEC's wheelhouse and they neglected to pursue charges because no crime occurred. Besides, this is circular reasoning: Trump committed a crime because Cohen committed a crime because Trump committed a crime. Under this logic, any politician who has ever paid to bury a story has committed a crime.

According to Cohen's testimony

That's another thing, Cohen is a perjurer and also admitted to stealing money from Trump on these checks -- apparently, according to Cohen's story, Trump knew intimately the details of the money given to Stormy Daniels, but not that intimately!

Instead Cohen commits several crimes to pay Daniels and then Trump commits several crimes to reimburse Cohen. There was a less criminal way to do this!

Right, that's the thing: this is a totally normal thing that happens to powerful people all the time, only New York blew it up to try to make it a get Trump case. There is no case here.

Why is paying Stormy Daniels a campaign contribution?

Because the purpose of the payment was to benefit the campaign. According to the FEC

Similarly, when a person pays for goods or services on the committee’s behalf, the payment is an in-kind contribution. An expenditure made by any person in cooperation, consultation or concert with, or at the request or suggestion of, a candidate’s campaign is also considered an in-kind contribution to the candidate.

...

Why doed Cohen pleading guilty prove Trump committed a crime too?

Perhaps I have not followed the trial closely enough but it is not clear to me, from reading the actual NY law at issue, that the crime being covered up has to also have been committed by the person doing the covering up. If A enters false business records to cover up B's crime it seems to me that would be covered. It does not seem to be required that A's false business records cover up A's own crime, but I could be wrong about that.

Please note that campaign finance violations are the FEC's wheelhouse and they neglected to pursue charges because no crime occurred. Besides, this is circular reasoning: Trump committed a crime because Cohen committed a crime because Trump committed a crime. Under this logic, any politician who has ever paid to bury a story has committed a crime.

This is not correct. Cohen committed a crime (an illegal campaign contribution) and then Trump committed a crime (falsifying business records) to cover up Cohen's crime. As I note in my comment if Trump had paid Daniels himself it likely would not have been a crime, because candidates are allowed to spend as much as they want on their own campaigns.

Right, that's the thing: this is a totally normal thing that happens to powerful people all the time, only New York blew it up to try to make it a get Trump case. There is no case here.

I think that depends on what you mean by "this." I do not think it is that common that powerful people get their lawyers to commit bank fraud and FEC violations to help them get elected, then commit further crimes to try and cover it up. Heck, if Trump had paid Cohen back out of his own pocket (rather than his business) that probably wouldn't have been a crime either! Or at least it wouldn't have been this crime.

I think that depends on what you mean by "this." I do not think it is that common that powerful people get their lawyers to commit bank fraud and FEC violations to help them get elected, then commit further crimes to try and cover it up.

You don't think that powerful people cover up crimes all the time? I think this is incredibly naive, in an age when regulatory choke means everyone is breaking technicalities all the time.

Moreover: this is an extremely dubious technicality. Your argument is that Trump definiteky committed a crime which wouldn't have been a crime if he'd made one simple bookkeeping change. This is really your idea of a slam-dunk solid case of crime?

Yes. Lots of things can be a crime if entity A does them but not if entity B does them. If Trump had paid Daniels (and maybe Cohen) out of his own pocket there would have been no crime. The crime is entirely in how he went about it.

Then when Hillary and the attorneys at Perkins all get convicted of the same thing over the Russiagate dossier then I'll update as this is legitimate.

Hillary Clinton was fined 100k for improperly reporting expenses on the dossier as legal expenses.

Yes, a fine is the typical response to misclassifying campaign expenses, not a felony.

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That's my point. Business as usual is fining a campaign some token amount years after the election.

Federal election regulators fined Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee earlier this month

If either Trump's 2016 Campaign or 2020 Campaign organizations were similarly fined no one would be up in arms. When she and the attornies who assisted her in that are all personally convicted on criminal charges that's an indication of similar treatment.

I really would like to through and prosecute everyone and their attorneys whose been given a misreporting campaign expenses fine with criminal fraud charges. Would go a long way to actually draining the swamp.

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This is crazy! Why would Trump go out of his way to do things the illegal way if it were already legal? Apparently, Michael Cohen paying something on Trump's behalf becomes a campaign contribution, which means Trump paying Cohen back becomes cover-up. That's ridiculous!

That's not a serious legal theory, which is why it's never been used on anybody before now. That's the rationalization made up to explain why Trump was guilty. If it weren't that, it would have been something else.

This is crazy! Why would Trump go out of his way to do things the illegal way if it were already legal?

Part of the problem with this whole thing is assigning intent to a guy who seems to wing it on instinct and never really bothers to do due dilligence to make sure he's doing things the proper way -- and who hires shitty, sleazy lawyers who are also incompetent at covering the legal bases. Trump is sloppy. Contrary to the memes, he's barely playing 1-D Chess. He follows the straight line from his desires to his ego. It's entirely possible given his apparent modus operandi that no one thought to check if there were any legal issues with anything related to the FEC or any other set of regulations, and "legal services" was written on the checks because Cohen was a lawyer, making anything he does "legal services."

I don't doubt that Trump is guilty of hundreds (if not more) of compliance violations, because he generally holds all rules and official processes in contempt. Felony convictions for details he likely never bothered to consider or understand seems harsh; but it does make a good case for why political parties should screen their candidates with a more serious sense of purpose.

But that’s the entire point. You needed to do it with an intent to defraud and commit another crime. If he wasn’t thinking at all about that, then that is proof he didn’t commit the crime.

The prosecution has to argue he was thinking about it, there was in fact a legal method, and Trump was like “fuck that, I want the criminal way. Leeeeeeeroy Jenkins.” That just isn’t reasonable.

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If Trump were really sloppy as you allege, prosecutors would have been able to find more serious charges to bring against him. Ten years of political spotlight and they can only get him on charges that have literally never been used against anyone ever before. You don't doubt that he's guilty of hundreds of similar crimes? Then why haven't they brought anything forward? That's the sloppy thinking here.

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Because the purpose of the payment was to benefit the campaign.

According to who? The prosecution?

This is a novel argument: personal money you spend on personal causes makes you a better candidate, so it counts as a campaign contribution! There is no limiting principle here, because it's a silly argument that has never been used before. Even your quotation of the SEC shows the distinction: according to the prosecution, the payment wasn't made by Trump's campaign but by Trump himself.

According to who? The prosecution?

The prosecution, yes, but also according to Cohen, Packard, and others who were negotiating the deal at the time.

This is a novel argument: personal money you spend on personal causes makes you a better candidate, so it counts as a campaign contribution! There is no limiting principle here, because it's a silly argument that has never been used before. Even your quotation of the SEC shows the distinction: according to the prosecution, the payment wasn't made by Trump's campaign but by Trump himself.

Let's not get confused. There are two payments here. Cohen's payment to Daniels was an unlawful campaign contribution by the FEC definition. It exceeded the allowed limits and was made on behalf of and in coordination with the candidate. If Trump had made that payment himself it would not be a crime because he can spend as much as he wants on his own campaign. Trump's payments to Cohen may also not have been problematic if Trump made them directly, but he paid them through his business instead and lied about what they were for.

Paying off a mistress sounds like a fairly normal thing for a private banker or rich guys personal fixer.

So does paying a grifter to go away if they sign an NDA with a huge clawback clause.

You have the basic factual problem that both Stormy and Cohen have coronated that Stormy’s story was shut down in 2011 putting a lie to Cohen’s belief that it was solely about the campaign. Indeed Cohen’s evidence (if you believe that POS) was that Trump didn’t give a shit if Mrs. Trump found it therefore he only cared about the campaign. Cohen seems to think it is binary. But maybe Trump would care about how his son with Mrs Trump would care? Maybe Trump was bluffing about Mrs Trump to not appear pussy whipped?

It was tried once before re John Edwards. It was crushed and everyone moved on. It is why Brad Smith was willing to testify.

John Edwards was accused of the opposite, using campaign funds for his personal needs. That happens sometimes and politicians do occasionally get convicted for it. That's what makes the Trump case so egregious.

His mortgage on his primary residence counts as a campaign contribution because people are less likely to vote for a homeless person. /S

There is no IRS claim here. If he recorded this as a business expense instead of a personal expense then there would be tax implications. No such case exists.

Honestly the lack of a tax charge is completely confusing me on what he was misrecording.

The fact the FEC reviewed this and said no crime also seems like a big issue for NY to say a crime occurred.

It does seem like there ought to be further tax charges, under either NY or federal law. Not sure what you mean with the FEC review. The FEC definitely thought Cohen committed a crime but I don't think there's an allegation that Trump's conduct was an FEC-enforceable violation.

Then why didn’t the FEC charge Cohen? The underlying crime which makes what someone wrote in excel a felony is that there is an underlying crime.

That crime is under the jurisdiction of the FEC. They never charged anyone.

Because he pleaded guilty? You can read all about the FEC violations he committed in the contemporaneous DOJ release. What was left to charge him for?

This isnt really accurate. He was being investigated for tax fraud and they threw it in (basically working with a Clinton attorney) as part of the plea.

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Because the purpose of the payment was to benefit the campaign.

I still haven't seen a decent theory for why this payment is specifically for the campaign, while it would seemingly be perfectly legal any other day of the week for a Totally Upstanding Well-Known Businessperson and Public Figure.

Is it shady? Absolutely, but "running for office limits your otherwise-available personal publicity campaigning" seems a bit questionable under the generally-favored strict scrutiny for free speech questions. Which is part of why Citizens United came down the way it did: the government claimed then-extant election funding rules allowed them to ban books.

I still haven't seen a decent theory for why this payment is specifically for the campaign, while it would seemingly be perfectly legal any other day of the week for a Totally Upstanding Well-Known Businessperson and Public Figure.

My understanding is that the motivation for it was specifically the impact it could have on voters, especially so close to the election (the payment was in late October). Rather than some general concern about Trump's image. I believe this specific concern is memorialized in contemporaneous communication by Cohen, Packard, and others.

Is it shady? Absolutely, but "running for office limits your otherwise-available personal publicity campaigning" seems a bit questionable under the generally-favored strict scrutiny for free speech questions. Which is part of why Citizens United came down the way it did: the government claimed then-extant election funding rules allowed them to ban books.

As I mention in my original comment the manner in which Trump went about it is probably the whole issue. If he had decided to pay off Daniels out of his own funds there is probably no crime.

Isn’t the big problem for you that Trump seemed to try to keep this from coming out in 2011! That proves his motivation was not solely for the campaign.

And even then, see Brad Smith’s view on campaign contributions (ie he believes per se it isn’t a campaign contribution)

His motivation doesn't have to be solely the campaign for it to be a campaign contribution. If Cohen made a campaign expenditure on behalf of or in coordination with a campaign, then it was a campaign contribution.

Brad Smith former FEC chairmen appointed by Clinton explained that campaign expenses are things that a person (not the candidate) would only spend on an election (eg polls, fees directly related to the campaign). It would not include things like a nice suit even if the candidate purchased it solely with campaign in mind.

At best the law here is very convoluted. But we are to believe Trump and Cohen connected this scheme to try to keep Cohen out of hot water that may or may not exist even though Cohen didn’t testify “Trump did it for that reason.” Literally zero evidence on that point meaning per se the prosecution loses. But it doesn’t bother you?

The big issues:

  • 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.))

  • 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.

  • 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.

  • 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.

  • 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.))

Those are avenues for appeal, but they aren't all good avenues for appeal. Keep in mind that I haven't read a full trial transcript and my knowledge of the specific laws involved is limited to what I read in the news. To go one by one:

  • This isn't really an issue since Cohen testified. Even if an appellate court were to rule that the specific evidence of the plea bargain was inadmissible, the fact that Cohen outlined his actions in detail for the jury with the defense being given an opportunity to cross-examine likely puts this in the harmless error category. There is the fact that in New York they can't convict on accomplice testimony without corroboration, but the jury was properly instructed.
  • I'm not familiar with the specific scientier requirements in this case, but as long as the jury was properly instructed of them, an appellate court is loath to contradict their findings.
  • See above. It's another "the evidence wasn't sufficient to prove x" arguments that don't usually go anywhere. Again, I haven't read the full trial transcript, but as long as there was some reasonable basis for which the jury to reach their conclusion, an appellate court isn't going to set aside the verdict.
  • This goes back to the first point. Cohen plead guilty to a Federal charge. IIRC, there were state charges involved as well, and if his testimony implicated state law violations, the bootstrapping argument is moot.
  • The Appellate Division already ruled on the recusal issue, and I doubt the Court of Appeals will take up the issue. The Wiesselberg thing is moot because the defense didn't protect the record. If they had a problem with the prosecution relying on his statements without calling him they could have called him themselves. The fact that they didn't want him anywhere near that courtroom may be good trial strategy, but there are tradeoffs. I usually load up my witness lists with people I have absolutely no intention of actually calling for the simple reason that if things go sideways and the case goes to trial and some odd reason arises where I need to call them I don't want to get the "He wasn't on the list" argument from Plaintiff's counsel and deal with the subsequent malpractice suit.

For the interest of completeness, I have no idea whether Trump personally cutting a check would have avoided legal scrutiny, but the ambiguity doesn't really bother me, because I don't like the idea that someone trying to be President would blatantly hide information from voters. Hell, at least have the foresight to do it before you're actually running so there's no campaign money to speak of.

I think you're missing a lot of details specific to the case.

Even if an appellate court were to rule that the specific evidence of the plea bargain was inadmissible, the fact that Cohen outlined his actions in detail for the jury with the defense being given an opportunity to cross-examine likely puts this in the harmless error category.

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.

I'm not familiar with the specific scientier requirements in this case, but as long as the jury was properly instructed of them, an appellate court is loath to contradict their findings.

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":

For the crime of Falsifying Business Records in the First Degree, the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.

Again, I haven't read the full trial transcript, but as long as there was some reasonable basis for which the jury to reach their conclusion, an appellate court isn't going to set aside the verdict.

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.

Cohen plead guilty to a Federal charge. IIRC, there were state charges involved as well, and if his testimony implicated state law violations, the bootstrapping argument is moot.

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.

The Appellate Division already ruled on the recusal issue, and I doubt the Court of Appeals will take up the issue.

I mean, I doubt the New York Appellate Division or Court of Appeals would take up any issue seriously.

The Wiesselberg thing is moot because the defense didn't protect the record. If they had a problem with the prosecution relying on his statements without calling him they could have called him themselves.

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.

I have no idea whether Trump personally cutting a check would have avoided legal scrutiny, but the ambiguity doesn't really bother me, because I don't like the idea that someone trying to be President would blatantly hide information from voters. Hell, at least have the foresight to do it before you're actually running so there's no campaign money to speak of.

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.

I didn't read the entire transcript, but I scanned Cohen's testimony, and I couldn't find any instances where he's asked to draw legal conclusions. The only thing approaching that that I could see, as you said in your initial comment, was that he admitted to having plead guilty to certain Federal crimes. The defense never challenged the admissibility of this testimony in general. They filed a motion in limine to prohibit the prosecution from using those pleas as evidence that the underlying crimes were committed, and they won that motion. The evidence of the pleas was admitted so that the jury could evaluate Cohen's credibility, and the judge gave a limiting instruction as soon as they came up. The defense's motion conceded that the plea evidence was admissible for that purpose. They never tried to get the evidence out entirely, and it wasn't in their interest to, either, because without the evidence of the pleas, it would seriously hinder their attempts to discredit Cohen. Given the limited nature of what Cohen actually testified to on direct, the prosecution probably wouldn't have even opposed a defense motion to keep the plea evidence out entirely, since the defense would have had much less to work with.

Beyond that, I don't want to get into too many details, but inadequate jury instructions and insufficiency of evidence are usually long shots when it comes to getting an appeals court to overturn a jury verdict. I argue in another post somewhere that intent (most of the time) doesn't require knowledge that the action is illegal. As for that last bit, it wasn't so much about hiding information from voters as it is hiding expenditures from voters. Laws requiring disclosures were created with the express intent of creating a certain transparency in election-related spending. I was reacting to the commenters here who were saying that Trump was in a kind of Catch-22 because there was no way he could have made the payment without drawing the scrutiny of the FEC. This clearly isn't true; if I were Trump's attorney I would have told him that if he wants to be completely safe he should pay it out of his personal funds and report it as a campaign expense. Alternatively, he could pay it out of his personal funds and not report it because unless it's obvious that sort of thing is rarely punished. Paying it out of campaign funds and reporting it isn't recommended but at least it makes it look like he's on the up and up. What I wouldn't tell him to do is to have a third party make the payments so they can't be traced to him, and then create phony documents to obfuscate the reimbursement.

The only thing approaching that that I could see, as you said in your initial comment, was that he admitted to having plead guilty to certain Federal crimes.

And that he hadn't lied about it, and that he was guilty of it, and so on. That's not saying 'x was a violation of Y statute", but it's obviously saying that 'x is a crime'.

They filed a motion in limine to prohibit the prosecution from using those pleas as evidence that the underlying crimes were committed, and they won that motion. The evidence of the pleas was admitted so that the jury could evaluate Cohen's credibility, and the judge gave a limiting instruction as soon as they came up.

I can't find any text of the actual request, but the 'limiting instruction' as delivered was just to say that the pleas do not "constitutes evidence of the defendant's guilt and you may not consider them in determining whether the Defendant is guilty or not guilty of the charged crimes". As a matter of law, it may not be sufficient problem to be reversible error -- SCOTUS caselaw on sufficiency of limiting instructions is thin and messy -- but the pretense that the prosecutors were bringing it up to evaluate Cohen's credibility, rather than to show that there was a FECA violation for Trump to have hidden, doesn't pass the sniff test, and it's not a small part of the trial.

I argue in another post somewhere that intent (most of the time) doesn't require knowledge that the action is illegal.

"(most of the time)" is doing a lot of work, here. The law generally does not require that you know the specific text of the law you're violating, but even that has its exceptions. When the law prohibits 'doing illegal things' the exceptions grow: Liparota is the standard example, here, where a statute about "knowingly uses... in any manner not authorized by [the statute] or the regulations" required the defendant to be shown to know it was actually not authorized, even though that was strictly a question of law. And that has applied in business records cases, such as Ratzlaf most famously Arthur Andersen LLP v. United States.

Now, the statute in Liparota made clear that it required a high level of mens rea, where (unsurprisingly, given the different ages of the statutes and models for state law) the New York statutes are more vague. But, under both federal law and New York law, where no specific level of mens rea is in the statute does not automatically produce a strict liability crime, either! And in this case, the stapling-together of various statutes only elevates the normal concerns.

To be clear, the motion in limine never asked the court to preclude all testimony relating to Cohen's guilty plea. It only asked to prohibited the prosecution from arguing that it was evidence of a violation. The defense even made it clear in their motion that they intended to ask Cohen about his convictions on cross. The defense never claimed the limiting instruction was insufficient. I don't see anything here for an appellate court to work with.

As for your second argument, I wasn't trying to argue that this is a strict liability crime! I was simply trying tease out the general principle that "intent" isn't necessarily as specific as some seemed to think it was , partially due to confusion between the FECA requirements and the requirements of the law Trump is actually being prosecuted for. I'm not going to reproduce the jury instructions here, but they go in at some length about what constitutes intent for the purpose of the New York statue. Bringing up cases from a different jurisdiction that involve a different standard don't do much to bolster arguments about intent requirements in this case. In any event, I can't find anything in the pleadings to suggest that the Defense ever raised this issue or had any problem with the jury instructions that were ultimately given.

I think the ultimate problem here is that the jury came to a conclusion some people disagree with. You don't think Trump had the requisite intent? That's fine, but the jury heard the evidence presented and came to a different conclusion. It's okay to disagree, but thinking the jury got it wrong isn't grounds for an appeal.

I mean, I've quoted -- in this very thread, just a couple comments up! -- those same jury instructions. It's not like the FECA part is better, and both the jury instructions and trial transcript point out the fine details of the terms for that, either.

I think I've made it very clear that I'm arguing about the law, not the jury's determinations on facts. I get that you're trying to juggle a lot of conversations, here, but just repeatedly asserting that the question of intent papers over any questions of what the law does or can prohibit this way isn't very compelling or engaging well with my claims.

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A few responses:

  1. The issue is the defense objected to allowing Cohen to even discuss his campaign violation plea. The prosecution wanted it in to impeach their own witness. Of course, the real reason was to imply “yes, there was a FECA crime” and that is surely super prejudicial despite the curing instructions. This is all the more galling when the court wouldn’t allow Trump to even offer up the evidence that the DOJ and FEC looked at this case and determined not to bring any civil or criminal charges. That would’ve truly cured the fake i peach meant but it would put a lie to the whole trial.

By the way, the whole thing was made worse by the prosecution stating in closing that it was a fact that Trump committed a campaign finance violation. You put all of that together and it sure looks like reversible error to me.

  1. Re scienter there is not a single piece of testimony that Trump even thought about FECA violations. There was testimony that he thought about the election and wanted the payment for the election (which the prosecution argued and the judge accepted—probably incorrectly—as a campaign finance violation) but literally zero that he wanted the books a certain way to cover up the campaign issue. That is fatal because the government has the burden and it proffered to my knowledge zero evidence.

  2. The bootstrapping point is not moot. The “unlawful means” appears to be a FECA violation IN THIS CASE. That means effectively Trump was convicted because NY law prohibits false bookkeeping if it was intended to cover up federal election law rules. That is…far from obvious.

(3) concealing another crime

Nope. There's no other crime being concealed. That someone somewhere plead guilty to a non-crime as part of a package deal rather than vigorously defend the position that it was a non-crime in the courts (where they would have won) does not actually make it a crime. You still need to show that it's a crime, but that's going to run into serious legal theory problems, not least of which includes the first amendment. This result is remarkably easy to see if you've spent any time reading the Supreme Court's first amendment/campaign finance cases.

This will... eventually... come back on appeal to the courts that actually give a shit about legal theory. It is unlikely to come back before the election, so perhaps the damage to democracy is irrevocably done.

I mean, maybe there's an argument Michael Cohen could have made that his conduct was not criminal, that the statute criminalizing it was unconstitutional. I am skeptical any court is going to get into that matter separately.

But again, whatever happens/happened with Michael Cohen's legal case is completely irrelevant for Donald Trump's legal case. When Donald Trump appeals his conviction, specifically on the grounds that there was no other crime being concealed, the courts will get into that issue. There is nothing "separate" about it.

I guess I'm wondering what this looks like. Is the idea that the NY prosecutor is going to have prove Cohen guilty beyond a reasonable doubt? Skeptical that's the actual standard.

No. Donald Trump says, "That's not a crime," and when they check how it is possible for the mostly uncontested facts to comprise a campaign finance crime, they will see that it is, in fact, not a crime. Like, have you ever read an appellate decision? ...have you ever read one where they do this sort of thing? Where it's like, "Yeah, this is what happened, and that is what the law says, but if we're going to read this law in any way that comports with the Constitution, it cannot possibly make this set of facts a crime." This happens regularly, even in the circuit courts. Maybe even just start with Citizens United. It has the campaign finance/first amendment angle, too. The court was definitely all, "Yeah, this is not a crime."

But Citizens United was about whether those particular defendants had committed a crime. The analogy is Cohen appealing his conviction. What's the citation for a case where some person A is appealing their conviction and a court decides some other person B has not committed a crime they pleaded guilty to?

The court doesn't have to decide anything about Person B's case. For the third time, Cohen's case has nothing to do with it. They have to decide whether the underlying facts comprise a crime, for Trump's case. Cohen's plea is literally the least persuasive authority possible for whether it is a crime. It would be slightly more persuasive if he was convicted at trial, but that's still nowhere near binding on the appeals courts. If Cohen had appealed his case on the grounds that it's a non-crime, and the appeals court in question ruled that it was, after all, a crime, that would be significantly more persuasive, but not binding unless it was the same appeals court. And of course, Trump's case could go all the way to SCOTUS, which means that unless Cohen had vigorously protested on his own that it was, indeed, a non-crime all the way to SCOTUS, himself, and then had them tell him that it was actually a crime, they can do the same damn thing they've done in many cases and just say, "Nah, dawg, that ain't a crime."

Cohen's plea has literally nothing to do with it, and no court has to decide anything about Cohen's legal situation.

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But your theory of the case is that Trump conspired to his Cohen’s guilt. That wasn’t what the government argued and honestly itself is not shown by the facts.

No, they'll consider the issue already decided by Cohen's plea, and not subject to re-litigation by Trump. The legal system is full of sneaky little gotchas like that.

I find this utterly implausible. For the record, I find it completely plausible that various courts could find some way to rule against Trump, but this one will simply not be there. Higher courts know that there are plenty (not in percentage terms) of people who are in prison for non-crimes, especially as parts of plea deals, that would be found to be non-crimes if contested appropriately. It would be one thing if Donald Trump had plead guilty to the requisite non-crime; I could absolutely see a court viewing that as settling the matter. But I cannot possibly believe that someone else pleading guilty to a non-crime settles the matter in the case in front of them. In fact, I imagine the court records are full of people appealing (some successfully) their convictions for things that are non-crimes, even though they had accomplices who plead guilty to those very same non-crimes. I challenge you to find me one example of a court simply rejecting any possibility of such an appeal based solely on a third party's plea agreement.

If Trump paid back Cohen, then Cohen no longer made a campaign contribution since he was acting as Trump’s agent… it also isn’t close to clear that cohen made a campaign contribution

It seems really weird you are arguing Trump exposed himself to criminal liability to try to help Cohen…

Also you have zero evidence connecting Trump to this scheme except the partial testimony of Cohen (he doesn’t even testify to all needed elements) with no corroboration. So you are using the word of a serial perjurer to send someone potentially to jail.

If Trump paid back Cohen, then Cohen no longer made a campaign contribution since he was acting as Trump’s agent… it also isn’t close to clear that cohen made a campaign contribution

This is not how the FEC understands campaign contributions:

Similarly, when a person pays for goods or services on the committee’s behalf, the payment is an in-kind contribution. An expenditure made by any person in cooperation, consultation or concert with, or at the request or suggestion of, a candidate’s campaign is also considered an in-kind contribution to the candidate.

Now, a campaign can transform an in-kind contribution into an operating expense by reimbursing the person making the in-kind contribution, but the Trump campaign never did that. Cohen was reimbursed by the Trump organization instead.

It seems really weird you are arguing Trump exposed himself to criminal liability to try to help Cohen…

I mean, it helped himself too. Otherwise Daniel (or Cohen) might have gone public much earlier to unknown effect.

Also you have zero evidence connecting Trump to this scheme except the partial testimony of Cohen (he doesn’t even testify to all needed elements) with no corroboration. So you are using the word of a serial perjurer to send someone potentially to jail.

This is not correct. Trump himself signed some of the reimbursement checks to Cohen.

I will respond to the others when I have time but with the latter signing a check is not the same as saying Trump had a scheme to book things a certain way because they were worried about campaign finance laws. All it says is that Trump agreed to pay money to Cohen presumably in part as reimbursement.

It doesn’t at all go to scheme.

It means that Trump knew about the reimbursement Cohen. Coming from his business. And presumably how it was booked. If there was also no retainer or other legal work Cohen had done (and Trump knew that) it goes to his intent to commit fraud.

See you use words like “presumably.” There is zero evidence of Trump knowing how or why it was booked a certain way. You are making a leap.

And Trump is saying Cohen worked for years on an oral retainer. No evidence to the contrary to my knowledge.

And again none of that goes to the point that that says zero about Trump’s intent to commit the predicate.

1)There was a person at the trial who could have provided insight on Trump's intent - Donald Trump. He and his defence team elected not to have him testify.

2)When you sign cheques, you are responsible for understanding where you are sending the money.

Okay. You don’t believe in civil liberties. Got it. You also don’t believe in the burden of proof.

This is not how the FEC understands campaign contributions:

We could have had testimony on how the FEC understands these things, but Judge Merchan explicitly ruled that Brad Smith couldn't testify to anything substantive on that front, because allegedly only the Court had jurisdiction to rule on legal interpretations like the meaning of statutes and regulations - even ones outside the Court's proper jurisdiction, apparently.

Except for you know allowing Cohen to offer testimony on it.

If it was so straightforward, how were there 34 separate charges?

But that's besides the point. I honestly don't know or care if he's guilty. The bigger issue is the political motivation of the trial. No one really believes that Trump would be prosecuted if he wasn't Trump. Biden is no doubt guilty of many felonies himself. The Clintons are as well. Yet they have not been prosecuted and for good reason. It is destabilizing. And even though Trump is being hoisted on his own petard here (lock her up!), it's still wrong to use the legal system to persecute your political enemies.

Political show trials are a feature of corrupt Latin American democracies. It's not a good sign that they have come to the U.S.

Is being someone's political enemy supposed to make you immune to the legal system?

Bob Menendez clearly hasn't made enough enemies.

Honestly, I'd be great with applying the Trump standard to EVERYONE in Washington DC for a few decades.

Because Trump paid Cohen in 11 checks, in response to 11 invoices from Cohen, which generated 12 ledger entries in Trump's business. Each fraudulent record is a separate charge.

Biden is no doubt guilty of many felonies himself. The Clintons have as well. Yet they have not been prosecuted and for good reason.

Uhh, those are some bold statements. Bill did get himself impeached for lying about his affair.

Trump has flagrantly played fast/loose with the law for years. He literally refused to cooperate when the feds said “please give the classified documents back.” His brazen approach was going to catch up with him.

I thought the only thing that was illegal was that the campaign contribution was not reported. I didn't think the payment itself was illegal.

It seems like a bit of stretch to call this campaign contribution just because it makes him look good. Is them anything you do to make yourself look good a campaign contribution? Alao, reporting the contribution would defeat the purpose of the payment, which was to conceal information. Is it now illegal to conceal information about yourself to make yourself look good while running for election?

  1. The reason for the description of the payments was to conceal Cohen's crime. Trump could hardly put "Reimbursement for unlawful campaign contribution" on the checks!

Do you think Trump would intentionally commit a crime to help Cohen? If so, you hold him in higher esteem than I do.

As I said downthread, as someone in deep red country the conversations I hear have an underlying apprehension of violence that rises by the day including today. I don't believe in their hearts these people want violence, but as the right is the political alignment predicted by having superior-to-average faculties at assessing danger, I think even if only intuitively they understand and greatly fear how swiftly we approach violence as the only way out. Blessed are the meek, blessed are those who know when to draw the sword. If and when it happens, it will be the right and only time.

The thought of this as being what stops Trump is many things, all of them wrong. There's not one person in this country who has decided this is the moment to hop off the fence, "Okay, now I won't vote for the man." Farcical. There will be topical complaining from RINOs, the establishment-GOP will continue searching, as they surely have since 2016, at finding a way to keep him out, and in November Trump will be on the ballot and receive 100 million votes. This conviction completes the ascendance of the man as the idea of the total rejection of the establishment. The establishment understands this, and is thus why they attack him with a wholly unparalleled ferocity; it is exactly the same reason those who land on the turbo-normie-left-side-of-bell-curve-meme support him. They don't have to think and wordswordswords, they viscerally understand power against power.

People try to contextualize what's happening in so many irrelevant details, ignore the minutiae. It has never been about vice, it has never been about ambiguous business dealings, it has never been about brashness, candor and honesty. Politicians as a category are the least ethical humans in this country, why would they care about any of this? It is about a man who refused to kneel when demanded by seated power and has risen to threaten their entire existence. This conviction heralds the imminent arrival of the pivotal figure of American history. It doesn't have to be Trump, but where we are in the reverberations of history is no earlier than the election of Buchanan.

There's not one person in this country who has decided this is the moment to hop off the fence, "Okay, now I won't vote for the man."

That's exactly what a number of Alaskan Republican voters did when Ted Stevens was railroaded, so I don't see why I shouldn't expect at least some of them to do the same with respect to Trump. After all, "Taking the high road" is the only thing that separates us from them, you see. We're the party of Law and Order, and only a Leftist would vote for a felon, so therefore anyone who votes for a felon has ceased to be One Of Us and has become The Enemy. Better to lose while keeping your Sacred Values than to damn your immortal soul to eternal hellfire for a mere election.

Donald Trump is the idol of a cult of personality bewitching a third of the country, whose every utterance compels the leaders of the free world ever more openly to complete madness, running against a backdrop of reignited multipolar geopolitical conflicts, collapsing middle-class living standards, allegedly stolen elections and entrapped so-called insurrectionists, unbridled millions invading undefended US borders, schools erasing children's concept of gender, worldwide lockdowns, and mandatory population-wide experimental injections.

Ted Stevens is "series of tubes" guy.

Ted Stevens did not trigger existential crisis in a low-stakes, functionally-irrelevant, 90% Republican-voting state, therefore disenfranchising a third of the country by holding show trials for the most polarizing man in American history will provoke no more than eyerolls from the median Republican voter, because the median Republican voter is a holier-than-thou asshole who will cut off his nose to spite his face? Have you just emerged from a coma? The non-RINO Christian Right is framing this "mere election" as the final turnaround on the highway to the Downfall of Western Civilization. Despite all his character flaws, Donald Trump is not immanentizing the eschaton. He is an avatar of all of the insults suffered at the hands of the Elite, and with every sling cast upon him, it becomes clearer what lawlessness they will embrace to render him powerless, and how trivially they could trample over people like us who don't have a billion dollars and a TV show and buildings with our names on them. When the alternative is writing a blank cheque to godless, lawless evil, it turns out God will forgive you a vote for a felon; man's laws are not God's laws, render unto Caesar, etc.

Nobody stood up for Ted Stevens, because Ted Stevens was a nobody who stood for nothing. Trump is the last man standing. And if they bring him down, and the only ones left are sneering subservient RINO elite wannabees and a lawless brigade that makes its living destroying the lives and livelihoods of middle class Americans on principle... Well, imagine a boot stamping on a human face— forever.

The non-RINO Christian Right

A minority, and a shrinking demographic.

sneering subservient RINO elite wannabees

I also object strenuously to the use of the term "RINO" to characterize the GOP establishment. Because there's nothing "in name only" about them. Indeed, it's quite clear to me that — regardless of what GOP voters may want or think the party stands for — they are the Republican Party. Being a "RINO" "sellout" Outer Party fake-opposition is what the Republican Party is, what it has been for a long time. It's populist outsiders like Trump — and the sizable fraction of voters who support them — who are really Republicans "in name only."

it becomes clearer what lawlessness they will embrace to render him powerless, and how trivially they could trample over people like us who don't have a billion dollars and a TV show and buildings with our names on them.

Which is why we're going to lose. They can and will simply "trample over" all of us, and there's nothing we can do about it.

When the alternative is writing a blank cheque to godless, lawless evil

"But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also."

I've been told repeatedly that Christians are not promised worldly political victory, but that they will be handed over to be persecuted, that they will be killed, and that they will be hated by all (see Matthew 24:9). That the right must understand that, per Tolkien, history will only ever be "a long defeat" and that the only victory to be had is in the next life, by sticking to our values unwaveringly even unto torture and martyrdom; that one should indeed willingly embrace said martyrdom like so many saints of old.

Back at the old place, Hlynka argued that it was precisely this embrace of "principled defeat" in this life for the sake of the next that defines "right wing" and separates it from the left, and thus only those who believe in an afterlife can be on the right; and that, regardless of their political positions, atheists are all automatically "left wing" by definition.

And if they bring him down

There's no "if" about it.

the only ones left are sneering subservient RINO elite wannabees and a lawless brigade that makes its living destroying the lives and livelihoods of middle class Americans on principle... Well, imagine a boot stamping on a human face— forever.

Yes, I agree with that. That is what's going to happen. It's inevitable, and there's nothing anybody can do to stop it.

Death is the only escape.

Are you Christian?

Are you Christian?

No, but most of the "normie Republicans" I know are (at least in a nominal "Christmas and Easter" sense). And I'm repeating the arguments some of them give (over and over) for why it's better for Republicans to "stick to our values" and keep losing than to "descend to our enemy's level" by retaliating tit-for-tat. They like to quote Mark 8:36 a lot.

I, personally, am one of those atheist right-wingers that Hlynka claimed doesn't exist.

I wouldn’t know. I think it was Michelle Obama who lamented to Barack that the left was too committed to going high when the right went low. Now the situation is perceived to be reversed. It seems there is something in both tents that suggests principles. I’ve never heard about them. I don’t think they exist.

It is fully possible for a muscular Christian narrative to assert itself alongside the tit-for-tat plays of the right.

Michelle's comments were funny at the time, given that the contemporary Democratic/media strategy was to regularly accuse or insinuate opposition to the Obama administration was based on racism, even as the Obama administration employed political machine politics at the national level. It was very consistent with assuming a posture of moral superiority while simultaneously going low.

Back at the old place, Hlynka argued that it was precisely this embrace of "principled defeat" in this life for the sake of the next that defines "right wing" and separates it from the left, and thus only those who believe in an afterlife can be on the right

This is an interesting idea, and it's the best and most coherent version of the Hlynkian thesis that I've seen. (I don't recall ever seeing this exact formulation in any of his own posts, at any rate - if you have a link I'd appreciate it.)

if you have a link I'd appreciate it

Afraid not; it was years ago and over on Reddit (which I find terrible to try to search).

For some reason, your reference to Toilken makes me think of the fall of Gondlin. Yesterday felt like that to me.

I'll second at least the sentiment that RINO is almost always wrong as an appelative. (And am sympathetic to much of the rest.)

Well, imagine a boot stamping on a human face— forever.

Man, what the heck are you talking about? Americans have never been richer, had higher incomes, had more political and economic freedoms. The job market has been stronger-for-longer than it has in years. Inequality is on a downward trend. Things are incredible right now. Whose boot is stamping on whose face??

If tiktok zoomers entering the real world for the first time, and wanna be coal miners instating on a maintaining a antiquated fantasy instead of getting a real job in a real city think things are bad now, wait until we get a normal economy.

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Every single metric you listed as being "incredible" right now is material and even that is only pertinent to the economic elite. Wage earner's buying power is going down and they are uninterested in your exploding portfolio.

You don't understand Trump voter's social grievances. All you think about is number go up. This election is bigger than that.

Trump is the last man standing

Sometimes, like right now, I get the strangest urge to create a sure-selling T shirt.

Nobody except Twitterati resistance libs takes this trial seriously. Anybody with the faintest glimmer of a possibility of voting for trump thinks it’s a political prosecution at best and third world country bullshit more likely.

Nobody except Twitterati resistance libs takes this trial seriously.

Do you include former GOP state governors Asa Hutchinson and Larry Hogan (the latter running as the R candidate for Maryland's Senator) in the "Twitterati resistance lib" category?

Yes

I’ll only say this; That was a very long time ago, in a very different time politically for the US. Not only is the GOP different now to the point of almost being unrecognizable, so are independent voters and what they want.

I live in a deep blue area, but I know a ton of red tribers, mostly undercover like me. My experience is largely the same; this Los being perceived as lawfare even amongst less politically engaged independents, and has only strengthened support for trump as the anti-establishment force that he is perceived as being. Which is almost entirely a positive; red tribe “establishment” types have been almost entirely hollowed out and might as well be democrats at this point.

There's not one person in this country who has decided this is the moment to hop off the fence, "Okay, now I won't vote for the man."

Elections are won and lost by a percentage point or two. I don't think it's unreasonable to speculate that possibly one to two in a hundred American voters doesn't like Biden but won't vote for Trump after enough messaging about him now being a convicted felon. It also may not have any such effect, or have a reverse effect. Time will tell. But you're overconfident.

Out of the hundreds of posters on the fora I inhabit, not one has plausibly made the claim that they would have voted Trump if not for this -- at least one or two have said that they didn't want to vote for him (and would have gone for a third party), but now feel that they have to in order to send a message. Some of them do have a post history of criticizing the guy, so I think I believe them?

Posters on the fora you inhabit are not a representative sample of the electorate, no matter how many fora you inhabit nor how much you post.

True enough -- but I've heard literally zero people on fora or IRL who were plausible Trump voters and say that now they won't vote for him -- 'some' is more than 'none', and I'm pretty comfortable extending this to the electorate. All this lawfare is a big mistake -- it won't succeed in keeping him off the ballot, and Americans love an underdog. Trump will lean into it.

I'm pretty comfortable extending this to the electorate

You shouldn't be. It's just not reasonable to extrapolate your personal social experience to the electorate, no matter how badly you want to.

Whatever man -- apparently he raised $52M over it yesterday, and right next to that in the feed is a sheriff from Cali (who seems kind of law & order oriented) saying "it's time for a felon in the White House": https://x.com/Bubblebathgirl/status/1796750332359262368

That's top of Twitter from typing "trump" into the search box -- tell you what, why don't you see if you can actually find some people that were ever likely to vote for Trump but won't now? The people saying that this matters are saying so because they hate Trump already, simple as.

All very interesting but none of them is a poll

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Give it a week and we'll have new polling that shows if this event moved opinions at all. Hopefully they ask specifically about whether the verdict changed their opinion and in what direction so we don't miss one direction of movement being netted out by another.

As @VelveteenAmbush points out, it's the people NOT on forums who are going to stop voting for him. The law-n-order conservatives who have never seen a prosecution they don't like.

And those people are going to vote for who exactly? Certainly not Joe 'Mostly Peaceful' Biden -- even among throwaway votes RFK doesn't really appeal to this crowd, and I can't see them getting too excited about putting the 'Libertarian' in LGBTQ.

The cohort you are talking about are also the 'you don't vote, you can't complain' guys -- so I can't even see it hurting on turnout much here.

ETA: I'm not really talking about quirky geek forums here either -- if you wanna put your finger on that particular pulse I'd reccomend ar15.com -- those guys are the most law abiding, letter-of-the-law dudes you will find, and maybe even more right wing than here. I haven't had cause to be down that rabbithole lately, but I guarantee they will have something to say about this.

And those people are going to vote for who exactly?

They'll just stay home and let the Democrats take the purple areas.

The ar15.com guys are familiar with blatant abuse of the law because BATFE does it all the time.

Sure, but they take all the dumb rules to heart -- go on there and ask about cutting an inch off a shotgun barrel or something sometime. And they won't stay home -- voting is a civic duty, remember? And these guys are all about the civic duty.

Yeah, the ar15 guys are serious about the dumb rules because they know if you're not, you risk having your wife shot in the head in front of you. But they're not the guys who will be turning away from Trump. It will be the guys who (at the time Ruby Ridge was in the news) were of the opinion that if Weaver didn't want to get his wife shot, he shouldn't have cut that shotgun too short. Or should have showed up to court (despite getting wrong and conflicting information about the date). There were distressingly many of such people at the time, and they still exist.

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Convicting former presidents for paperwork related felonies (in a court and a state that hate him no less) is such a bad precedent to set I don't even know where to start. There is a reason Nixon was pardoned. Who will want to give up power if they know they will be possibly thrown in jail if they do? Even if that never happens the knock on consequences of this down the road are hard to overstate. Like all bad law, it might make sense morally and emotionally at the time, but it creates a monstrosity that will have to be dealt with later.

Sure. The idea that 0 people weren't convinced to cancel their trump vote because of this trial cannot statistically true at the scale of an American election.

But do you really see a meaningful overall shift that way instead of the opposite? Trump has been impeached, sued, and disparaged with screeching histrionic screeds from every single major media platform in the world for almost 8 years at this point.

And yet a sham conviction like this is supposed to be more progress towards crushing him instead of the reverse??

That's even more of a stretch than what you're casting doubt on. Overconfident? Yes. But this was a counter productive move on the establishment's part. I'll be voting for R over L for president this year because of it. Maybe.

in November Trump will be on the ballot and receive 100 million votes

Put your reputational money where your mouth is. Is this a prediction? Would you be willing to concede that you were wrong if this doesn't come to pass, or would you just say that the election result must have been falsified?