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None of this is unique, unusual, or dangerous. Leftist NGOs and Democratic governors/AGs preparing for a potential second term of Trump. Sinister-sounding quotes like "controlling the flow of information" and "democracy-proofing our institutions" but nothing actually out of the ordinary in terms of real actions. I'll remind you that the vast majority of the actual escalation has come from Republicans. Remember J6? Remember "the election was stolen!!!" 70% of Republicans still believe that crap.
Trump will try some hamfisted executive orders, which will get massacred in the courts like much of his EO's did in his first term. He'll declare victory anyways, and the base will love him because they desire the appearance of "owning the libs" more than any actual substantive policy changes.
Where are the republicans inventing new legal theories to prosecute their political opponents? Where are the republicans forcing businesses to boycott their opponents organizations? Where are the republicans using partisan organizations assessments of their ideological opposites as a justification to enact a domestic spying program?
I don't think this is an accurate description of any of the Trump prosecutions. It mainly gets levelled at the falsification of business records case, on the theory that Bragg used a federal crime as the enhancer to kick it up to a first degree charge. But this isn't accurate. He used a state crime - New York Election Law Section 17-152. That charge itself refers to influencing an election by "unlawful means", and the unlawful means referred to in this context are violations of Federal election finance law, but my understanding is that it's well established by precedent that you can use federal crimes in relation to this statute. As always IANAL and I might be wrong. But as far as I can tell, although it's a bit of a convoluted approach to take, it's also one that specifically avoids using laws in unprecedented ways.
Republicans however certainly have invented new legal theories. They invented a new legal theory to overturn the 2020 election using competing slates of electors and having Pence refuse to certify disputed results. They invented a new theory to defend Trump by claiming Presidents have absolute immunity to criminal prosecution.
And, look, there's nothing wrong with inventing a new legal theory. You try it out, you test it in court, you see if it flies. And I think it's kind of natural for it to be the Republicans who are testing new ground here - the courts have become increasingly right wing (especially SCOTUS), and those new court majorities have different ideas about how laws should be interpreted. But if you're going to take the position that advocating novel legal theories for political purposes is some kind of no-no, then you really ought to be pointing the finger in the other direction.
The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.
Notably, the Republican Party decided not to do this. Like, there weren’t competing slates of electors. Mike Pence had openly said he wouldn’t go along with that plan. The most partisan red state where Trump disputed the results had a state government- made up of all republicans- who told him to eff off. In fact, republican elected officials who could have turned it into a matter for the courts chose to admit trump lost. Not as a general rule, as a universal one.
I’ve yet to see even the smallest of small democrats opposing the lawfare, targeting of conservative groups, criminal cases invented out of whole cloth, attempts at censorship, etc.
What are the new legal theories embraced by the 6-3 majority on scotus? Name them. Their most controversial, and predictable, decision was dobbs, which even liberals mostly admitted would be legally correct. Pretty much all the precedent overturned by the changing balance of the court has been in the form of things like changing the constitutional test applied in x specific situation- hardly novel legal theories.
The closest thing to a novel legal theory pushed out of conservative courts would be kaczmyrak’s decision on mifepristone, which got stayed immediately and slapped down by scotus.
No it's not. The John Edwards case ran on the exact same theory.
Parts of the party refused to go along with that plan, sure. And they mostly got purged for disloyalty to the guy who spearheaded it.
Off the top of my head, the Major Questions Doctrine is one obvious example of a new legal theory adopted by SCOTUS. It's also highly likely they will be soon adopting a new legal theory in the area of administrative law, abandoning the current Chevron Deference legal theory. Again, I have 0 problem with them doing that, sometimes existing precedent is plain wrong and generally speaking I think the current court has made pretty good rulings.
I bolded the operative part that is completely different. Edwards did not pay for the expense out of his own pocket. Which is why when you later say:
...you're completely, 180 degrees, backwards. Edwards used somebody else's money. Trump used Trump's money, via an intermediary.
That's a factual difference, but it doesn't change the legal theory. Both cases hung on the idea that paying off the woman you cheated with is a campaign expenditure. If you concede that point, then the question of whether you get someone else to do it and then pay them back, or get someone else to give you money to do it, or get someone else to do it while the money never passes through your hands at all, is all pretty immaterial. All of those actions violate campaign finance law in some way, if and only if the payoff counts as a campaign expenditure.
This is just so wrong.
You are using as precedent a case that is seen as a disaster for the government as precedent. It is precedent; just not the way you think it is (ie it turned the FEC and DOJ off of the theory you espouse).
There is a big fucking difference between a presidential candidate funding his own campaign and a third party. The former has zero limits; the latter does. The latter could be criminal if it goes past the limit.
If it were a campaign contribution, then the only thing Trump would’ve needed to do is report something in 2017. The prosecution’s theory is somehow the 2017 reporting stole the 2016 election. Time travel folks!
To point 2, that is correct. However, Trump did not pay off Daniels himself. Cohen did. The fact that he later reimbursed Cohen does not change the fact that Cohen made the payment on behalf of Trump, and that making a payment on behalf of a candidate is counted as a contribution to the candidate. There's no time travel involved, Cohen committed the initial crime during the election campaign. Trump later committed further crimes trying to hide the fact that he was paying back Cohen for committing that crime.
It's true that if Trump paid Daniels himself with no intermediary and reported the payoff as a campaign expense, there would have been no violation of campaign finance law.
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