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Remember that the post-2020 US election Time article "The Secret History of the Shadow Campaign That Saved the 2020 Election"? Somewhere between a victory lap and credit-claiming at a time it was generally thought Trump's political prospects were dead, it was a rare look behind the scenes of retroactively-admitted coordinated political obstruction and shaping efforts.
It was also the article with the memorable distinction of-
Well, the New York Times on Sunday published a more pre-emptive form of democratic fortification: The Resistance to a New Trump Administration Has Already Started.
The article in short is a look at different wings of the Democratic Party apparatus, and steps they are taking in anticipation of a Trump victory to foil the predicted efforts of the 2025 Project. Some of these fears seem a good deal less grounded than others- Trump has been an abortion moderate such that it's hard to see why a Democratic governor would need to stock years of abortion supplies in a state warehouse beyond political theater- but then the article is quite likely a form of political theater. As far as election-year advertising goes, it's both a 'here are all the horrible things that could happen' fear campaign-
-with the ACLU specifically focusing on four areas of potential lawfare-
-but all with a back-edge 'but we thwarted him before and can do it again' of tribal-protection promise.
Not necessarily optimistic, but a 'we will fight for you' solidarity / call for support framing.
While there is the occasional (potentially deliberate) amusing word choice in ways that anyone who has used the term the Cathedral might appreciate-
The core strategies include the following, none of which are particularly surprising but which are good to see identified clearly in advance:
-Passing executive actions in the Biden administration before certain timelines so that Trump can't immediately revert them
-Litigation waves to tie things in court, with recruitment of sympathetic plaintiffs with likely standing already occuring
-Implicitly by virtue of the acknowledged past strategies and current participants, more protests
-More explicitly legal preparations to prevent/limit federal intervention in protests
-A national-scale counter-ICE network to disrupt immigration raids
-Pre-emptively doing self-auditing of activist group finances in preparation of politically motivated IRS scrutiny
-Various state-based nullification theory application (such as 'inter-state commerce doesn't apply to FDA if I already have the goods in-state')
-Use of Never-Trump 'ex-Republicans' groups as part of the Democratic network, especially the Principles First organization.
(Principles First was a Never Trump wing of the Republican Party associated with Liz Cheney that started in 2022 during the anti-Trump former Republican establishment's efforts to reassert control / torpedo Trump's post-presidential prospects by cooperating with the Democrat-led impeachment trial. Since then, and her fall from the Republican Party, it's been casting itself as an alternative to CPAC. Interestingly it also works in concert with Ranked Choice voting lobbying. (In the US, ranked choice voting is often, but not always, associated with the Democratic Party, at least in the sense of pushing for it in Red / Purple, but not Blue, states.)
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.
No it has never been established to at federal law (let alone FECA) can be a predicate for unlawful means. Never. Not once.
In fact it isn’t clear the NY statute has been used in fifty years let alone tying it to a federal crime.
There might not be anything exactly on point, but there isn't any case law I'm aware of that explicitly prohibits it, and the "lay of the land", so to speak, suggests it's okay. The courts have already ruled that Federal offenses could count for the old "habitual criminal" laws, and RICO cases usually involve state predicates. Neither of these is exactly on point, but they are indicative of the idea there isn't any problem with the cross-jurisdicational aspect of the case. I'm not entirely sold on the idea that there isn't an argument here, so if you have one, I'd love to hear it, but nothing I can think of off the top of my head suggests that this would be a problem.
I think those things are different. The first is using prior convictions (ie things adjudicated) as opposed to one sovereign substituting its opinion for the other. The second is also different in that federal law is a higher authority (within its limited scope). This is the opposite and I think that is important.
First, there is the preemption issue. Congress explicitly made the FEC and the DOJ the sole enforcers of FECA. This makes perfect sense because FECA governs national elections; not local. While most federal elections are local (1) the presidency is not and (2) the race in a particular race can have a big impact on the overall make up of the national body. Trying to have uniform rules makes sense because the rules implicate national elections. So this is a core federal interest and one congress spoke explicitly about. This makes for a very strong preemption argument. You could have NY take one view as to what is an unlawful contribution and another state take a complete opposite view colorable (hell there was a debate within FEC). So a candidate could be in a literal catch 22.
There is also the problem that here FECA is an incredibly complex set of laws bereft of a large body of caselaw to elucidate it and ride with first amendment issues. No wonder almost al action is civil in nature! Note this is even worse than it appears since a state judge will maybe encounter FECA issues once in a life time while FEC and DOj have special units dedicated to it. This is one where the experts in the law should be deferred to (ie another argument for preemption).
Third, unlike other cross border issues (where another state Supreme Court can issue an advisory opinion) there are no advisory opinions that can be issued by federal courts.
Fourth, Andy McCarthy makes a really good argument that the NY state constitution forbids incorporation by reference — especially in the context of non NY law. Andy also asks “where is the limiting principle — if NY can enforce another sovereign could the prosecution be based on sharia law.” Related to this I think (but could be wrong) the FECA law passed after this NY law was enacted. So we really think it was reasonable to believe NYS legislators incorporated federal election laws that didn’t exist at that time?
Fifth, there is the due process issue here of whether anyone was on notice that unlawful means h include federal law. There is a related (though somewhat disticint) rule of lenity issue.
Finally, I think these fears were borne out in this litigation. The experts passed but the partisan hack amateurs took it up. They really hid the ball that a criminal FECA violation requires willfulness (ie knowledge that it was wrong — no where did the prosecution even come close to that) but the judge decide not to explain what willfulness is as distinct from general intent. They also arguably badly mangled what a contribution is and didn’t properly explain when the reporting would occur (ie if you read everything in favor of the prosecution Trump allegedly misstated financials to win the 2016 even though he would not have to report a campaign contribution until after the election — try to make sense of that!). We could say these are errors. Or we could believe they are partisans tools of a blue state going after a red. In either case they upset the federal interest in having uniform election campaign laws and enforcement of those laws. The federal interest is massive while the state interest is relatively minor. This makes for a compelling preemption argument.
The thing that you and a lot of Trump supporters seem to miss when discussing the case is that you assume that the prosecution had to prove that Trump had to have committed the FECA violations himself in order to be criminally liable. That's not true; neither party disputed that the law applied to covering up misfeasance by someone else. Here, they had Cohen testify that he knew the payments were illegal at the time he made them, and that Trump reimbursed him through phony invoices for nonexistent legal work. That's the prima fascia case right there. Cohen was investigated and pleaded guilty (though his plea couldn't be used as evidence in Trump's case), so there's nothing controversial about whether a FECA violation actually occurred, unless you want to talk theoretically, which is pointless since Cohen isn't going to appeal.
Whether or not the case is preempted is a trickier matter, but New York didn't charge Trump with any campaign violations. He was charged with creating fraudulent records. In fact, the fact that this law has never been applied to FECA violations before actually tips the needle against preemption. If the law isn't aimed at regulating elections but at preventing fraud generally, then it's harder to argue that it's intruding on the policy goals that congress reserved to the Feds. Courts have already ruled that consumer protection issues relating to campaigns aren't preempted, even though they're directly related to campaign violations, so it's less likely that anyone would do so here. Not that there isn't an argument to be made, it just isn't as strong as some think it is.
I'm not an expert on the NY constitution so I'll leave that question to the Court of Appeals, who have the final say. I will say that whether or not Sharia Law applies in and of itself is a moot point. I imagine Sharia Law prohibits theft, and I don't think you'd have too much of a cross-jurisdictional issue if the predicate offense was theft in a country that has Sharia. If it's one of the things we Americans find more offensive, then prosecution would likely be barred on the grounds that it's contrary to public policy. It's an interesting question but crimes in other jurisdictions being used as the basis for related charges in others isn't exactly unheard of.
This is a non sequitur. Dumb people and people trying to get a good deal for other, real crimes, plead guilty to things that aren't actually crimes all the time. There is no logical way to bootstrap that to get to "nothing controversial about whether a FECA violation actually occurred". There may be all sorts of statutory, agency interpretation, and even constitutional defenses to the claim that a FECA violation actually occurred that Cohen simply did not pursue, but would nevertheless win the day in a court of appeals.
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