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I take it you've never been to law school before, but it goes something like this: You read cases as your class assignments and the professor asks questions about them. Most of the questions are hypotheticals that change the facts slightly to see if you can apply the principles of the ruling to different situations. Then the professor poses a hypothetical that's nothing like the original fact pattern and asks what the result will be. Then when finals come you get more questions like that where nothing is exactly on point and you have to argue based on broad principles alone. Then you get to do the same thing in the bar exam, especially the multistate, where they might give you a fact pattern where you read it and you think "okay, the guy is clearly liable" and the final question asks "If the court finds that the defendant isn't liable, what is the probable reason?" and gives you four crappy answers from which you have to choose the most plausible.
As a practicing attorney, yes, most cases are boring and straightforward, and don't require too much creativity. But this isn't always the case. New situations require new legal theories. Look at autonomous vehicles; there's a whole universe of potential problems that could arise there that the law is seemingly unequipped to deal with, except through general principles. "No one has been convicted based on this specific fact pattern before" isn't a defense. This is especially true in the world of white collar crime, where the argument isn't so much that the defendant didn't do what the prosecution said he did but that what the defendant did wasn't a crime at all. Not everything is going to slot into convenient and obvious categories, and unless there's a viable legal argument for why a particular course of action shouldn't be a crime, a jury is going to get to decide.
I think what’s missing here is the background. The background is that a DA is supposed to prosecute crimes not persons. Bragg ran on prosecuting Trump (ie the person).
And then to get Trump, Bragg used a NY state law that hasn’t been used in god knows how long coupled with a very dubious theory of a questionable FECA violation as a predicate of the rarely used NYS law. Keep in mind the people with authority to prosecute FECA violations passed on this (both criminally and civilly). The prior DA passed. That should tell us something! It tells us about selective prosecution and show me the man and I’ll show you the crime.
AND, they had to first corner Cohen on other charges into accepting a plea deal in order to "establish" that a (uncharged, untried, undefended) crime had taken place which could then be used as the basis for charging Trump in such a convoluted manner.
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He didn't run on prosecuting Trump in the sense (as I have seen implied in some conservative outlets) that he made it a campaign promise. He ran on prosecuting Trump in the sense that he cited his participation in the AG investigation. In other words, he ran on his record, which is something every AG candidate does, especially when they were involved in a high profile case.
Here is one example
“Let’s talk about what’s waiting for the new DA. The docket. We know there’s a Trump investigation. I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation. I also sued the Trump administration more than 100 times for (Deferred Action for Childhood Arrivals), the travel ban, separation of children from their families at the border. So I know that work. I know how to follow the facts and hold people in power accountable."
Sure he talked about what he did but the clear implication that he would follow through on prosecuting Trump.
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There's a fig leaf, but it's an embarrassingly narrow one.
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No, but "any lack of clarity about what the law does and does not allow must be resolved in favor of the defense" is such a rule - the Rule of Lenity, to be precise. I know only Neil Gorsuch and like 17 other principled civil libertarians care about it, but still!
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