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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.
Which is why the judge didn't allow the guilty plea to be used as evidence that a crime occurred. I was merely responding to the OP's contention that there was some controversy within the FEC as to whether there was a violation because while that may have been true with respect to Trump, it wasn't with respect to Cohen. Cohen testified, nonetheless, to having committed all the elements of the violation he pleaded guilty to, which renders it a moot point.
Just set back for a second. You are relying 100% on the words of a notorious liar and thief to convict another man. There is no evidence to support that except for Cohen’s testimony. I don’t think your legal theory works but that’s besides the point. Let’s assume everything is as you say! Again reasonable doubt. And when the sole evidence is the words of a serial liar you just can’t get there.
I don't know what you want me to say here. You're allowed to call crappy witnesses. The defense is allowed to cross examine. The jury gets to decide whether to believe them. Whether reasonable doubt exists is a matter for the jury, not the court. The appeals court doesn't pore over the trial transcript and decide if the jury made the right decision.
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