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So, my debut post. I've been lurking here for some time and I have decided to experiment with some public posting.
The culture war issue on my mind is the federal prosecution of NY State AG Letitia James. A summary, from my perspective:
She more or less campaigned for office with "Get Trump!" as one of her campaign promises.
Upon taking office, she and her team went through some of Trump's deals for the purpose of looking for grounds to pursue a claim against him.
She and her team discovered that in one of his real estate deals, he had supplied arguably exaggerated figures for property he had used as collateral for a loan.
The State of New York sued Trump in the general trial court making use of a consumer fraud statute which, until then, had been mainly used against businesses that take advantage of individual consumers (i.e. not deals between sophisticated businesses). This consumer fraud statute did not require proof of damages, which was helpful to the AG's efforts since Trump and his organization had paid the loan back in full and with interest.
The trial court awarded a judgment against Trump for hundreds of millions of dollars, a judgment which was later reversed on appeal.
This lawsuit had been one of numerous other "Get Trump!" legal activities, civil and criminal, in multiple jurisdictions.
After Trump was re-elected, a Trump loyalist with access to federal home loan files went through Letitia James' files and discovered arguable fraudulent statements in her mortgage applications for certain properties. Letitia James was referred for possible prosecution and ultimately indicted for bank fraud.
Normally in situations like this, the mortgage applicant is not prosecuted. Rather, they are required to pay the higher interest rates which would would have been required had the application been completed accurately.
Personally, my reaction to this series of events is one of satisfaction. I was outraged by the lawfare campaign against Trump and it seemed to me that AG James activities were an abuse of her office. The prosecution of James strikes me as a reasonable tit-for-tat, necessary to deter the Blue Tribe from future abuses. The most charitable interpretation I can think of with respect to these lawsuits is that they are a form of "Nazi punching," i.e. the idea that if you are dealing with genocidal psychopaths, it's reasonable to oppose them By Any Means Necessary. But of course, as others have pointed out here, when you combine (1) it's okay to punch Nazis; and (2) my out-group are, generally speaking, led by Nazis, the net result falls somewhere between "counterproductive" and "civil war."
What's also interesting to me is that for the most part, the media coverage has downplayed points 1-6 from above even to the extent of completely ignoring them in certain cases, giving the impression that Trump is just gratuitously using the justice system to target his political enemies. (Yes, this is the "boo outgroup" part of my post.)
So this brings me to my main question: What will happen next? Given that the Blue Tribe members (apparently) feel that they are the victims of a vicious unprovoked lawfare attack, will they decide to retaliate at the next opportunity? Are we about to enter an era where every outgoing president preemptively pardons himself and all of his associates; conservative businessmen with political aspirations avoid contact with New York and California; and liberal businessmen similarly avoid Florida and Texas? Probably this is an exaggeration, but I would guess that the Blue Tribe is thirsty for revenge and I could easily see this lawfare business escalating.
A secondary question: Perhaps, much like the mainstream media, I am omitting important context from my summary. Are there additional facts I should consider which would (or should) change the way I see this lawfare business? In one article I read (I think it was the New York Times) the point was made that the fraud alleged against Trump was much bigger than that alleged against Letitia James. But to me, this does not seem like an important distinction because the key similarity is that in both cases, it seems that the authorities chose a target for political reasons and then went looking for arguable wrongdoing by that person. (As opposed to starting with the wrongdoing and then looking to see who was responsible.)
With regards to your secondary question. The Democrats don't percieve their lawfare as unprovoked, at least not the rank-and-file and the voters. I remember during Trump's first term, there was a very strong sense in their mind that Trump is a criminal, that he was "getting away" with crime. First, he's wealthy; wealthy people are by default sinful, everyone knows that you can't get rich without stepping on poor people, probably with crime, and can only really get absolution by supporting Democrat pet causes. Apart from that, Trump was extra criminal, probably this was because they hadn't had to deal with a really adversarial presidency in a while, but from hearing Democrats talk it felt like them losing was somehow against the rules. That senate refused to go along with the impeachments really cemented that he was getting away with crime. And Jan 6 made them lose their mind in that regard; there must be some crime in there, look what they did! So even if they lacked anything specific to point at, going on fishing expeditions was justified in their mind.
Yes, now that you have reminded me, I would tend to agree with this. I remember hearing the phrase "our democracy" a lot. The idea was that the Blue Tribe was supposed to be running things; that they had a kind of Mandate of Heaven; and Trump was an usurper of the rightful order.
But any way you slice it, I don't dispute that the Blue Tribe perceived their lawfare attacks against Trump as totally legitimate and justified. I'm not sure if "unprovoked" is quite the right word, since (as far as I know) Trump et al had not engaged in that sort of lawfare previously. So you could say that they saw it as a legitimate and creative way to fight back, sort of like the tax evasion charges against Al Capone.
IIRC, there were two main points of contention.
First was the allegation that Trump was working with Russia, if not formally then in a "friendly nod" sort of way. There was the whole "Russia, if you're listening" comments which he claims was a joke but the left did not take as a joke.
Second was that Trump tried to have Hillary prosecuted but gave up after a drawn-out fight with Sessions that ended in his termination. Source 1. Source 2 (pdf page 319, page 107 of the report).
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From the anti-Trump perspective, the attempts to prosecute Trump were provoked by his committing crimes - they were not intended to be a tit-for-tat lawfare campaign. Letitia James' decision to prioritise bringing that particular civil fraud suit was motivated by animus, but the type of fraud Trump was charged with was something he was in fact guilty of (Trump's successful appeal was about the size of the fine, not guilt), and which you or I would be prosecuted for in the unlikely event that we (a) did it and (b) got caught. The federal and Georgia election-related cases and the documents case were prosecutions for egregious wrongdoing of which Trump was unquestionably guilty - any functioning justice system would have prosecuted in the absence of a clearly established immunity bar. I'm happy to admit that the Stormy Daniels false accounting case was basically pure lawfare - I think Trump was technically guilty, but it wouldn't have been prosecuted against someone who wasn't a political opponent.
I commend you on reading the 323 page opinion from the first appellate division (pdf). For everyone else, the only thing all 5 agreed on was the then $500m fine was vacated entirely based on 8th Amendment to the US Constitution grounds (this essentially stops any large fine amount on any subsequent appeals). There was no other majority holding. Only the unanimous decision to remove the penalty.
A majority of the 5 (3) wanted to overturn various parts (or all) of the case. Two of the 5 wanted to overturn various decisions by the clownish embarrassment Judge Engoron and for a new trial and one wanted to throw the entire case out.
Of the panel, only one judge is not up in the near future for a renewed political appointment. Without looking, which one do you think it was? The 2 who would affirm everything? The 2 who wanted a new trial? The 1 who wanted to throw the entire case out?
Oh yeah? Could you name a single person other than this particular case prosecuted in the last 100 years using s. 63 (12) the way it was against Trump, i.e.,
?
from just waving aside the statute of limitations restrictions to not using common law fraud statutes to requiring insane bonds and business closures to allowing some doofus political officer masquerading as a judge to oversee Trumps business for years-on-end to just ignoring broad disclaimer statements on all documents (among a long list of other ridiculous behavior)
or does no other business or person "overvalue" their property owned by a business for the purposes of getting a loan from a bank? or no one ever "get caught"? "overvaluing real estate" in the way the Trump org did to obtain loans from giant banks is completely common in NYC
the truth is the law in question, executive law s. 63(12), has never been used this way before and required unprecedented tenuous-at-best theory of liability to justify its use at all as a sort of prophylactic for a good business environment to fit within the vaguely worded statute
Not only would the state of New York not "prosecute" (remember, this is an equity action) some rando for similar behavior using this law and its novel legal theory, but the AG had to come out during a press conferences and calm other NY businesses implying this would only be used to go after Trump in this way. If you can think of a single case of this happening, you should send that example over to AG James so the next time the question comes up, one of her attorneys has an answer because they admitted to the appellate panel they had zero other examples of any case remotely similar, which Judge Friedman notes in his opinion (pg 221). His dissent is biting and excellent.
Really, I encourage everyone interested to read the arguments of the 5 judges in the appellate court decision. The 2 judges who would affirm everything but the monetary penalty make arguments which are clownish and incoherent at parts, asserting in one part of their opinion that using this law for the first time in history in this unique, unprecedented way basically saved the world from another 2008 financial crisis, an opinion so ridiculous it should signal the purpose of their legal arguments.
On the other hand, the well-supported accusations against Letitia James and the laws being used are garden variety mortgage fraud, which require no novel legal theories nor stretched laws applied uniquely at all.
Your characterizations of the NY case (and the Georgia case as well - and probably worse - but I'll leave that for another time), are ridiculous. This was a crap case torturing a vaguely worded statute in a way which which it was never meant to be used (and no one even thought it could be used this way) in order to political persecute a political opponent. That's it. And the fact it even went on is a complete embarrassment to the state of NY and the legal profession as a whole, a testament to how we are always merely a nation of men and laws are barely bumps in the road for motivated parties.
Apart from the trial judge and 4/5 appellate judges. The Higgitt/Rosado opinion agrees that executive law 63(12) applies - nothing in the text of the law says it only covers frauds against "little guys", that's just how it has historically been enforced. (It also agrees that if the facts found by Engoron are correct, the Trump Org defendants are guilty - the disagreement is about whether Engoron was allowed to make those factual findings at the summary judgement stage of proceedings).
You are technically correct here - if you or I misstated the square footage of an appartment by a factor of three, or valued a property subject to deed restrictions on the basis that it wasn't, and got caught (which is admittedly unlikely), then we would be facing a normal prosecution for mortgage fraud. I don't know why James used executive law 63(12) - I always assumed that as a civil forfeiture statute it allows a lower standard of proof than a criminal statute.
agreeing afterwards in a political charged case in a state ruled by one party (and which you require an upcoming reappointment to keep your seat) is not the same thing as "and no one even thought it could be used this way"
as Friedman notes applying "section 63(12) to a scenario to which that provision has never before been applied, or even thought to apply" and the the other opinions don't actually contradict this beyond saying they don't find a prohibition in the very broad plain language of the law (and then goes on to handwave away or ignore any previous decision in the state which restricted the usage of s. 69 (12) in the past, e.g., the requirement to show a concrete public interest)
this position should raise grave constitutional concerns because it is ripe for abuse, selective application, and targeting people for their constitutionally protected speech (see s. 69 (12) usage against Martin Shkrelli), and lacks a limiting factor, but don't worry because despite the defendants raising general constitutional concerns throughout the case and even in the appeal, they didn't raise this exact one specifically enough specifically on appeal therefore who cares, it's not preserved, and also law of the case doctrine precludes it anyway (after all, the court previously rejecting a motion to dismiss for lack of standing at the preliminary stage precludes the court from discussion appropriate statute interpretation which doesn't put the law in constitutional danger) so it's been decided anyway also this opinion is already 360+ pages (we'll just ignore how in other similar cases, neither of these things stops an appellate court from this analysis, especially in the context of statutory interpretation)
silly
again, this is an equity action
right, which is why you are unable to produce a single other similar example while simultaneously claiming this would of course be used this way against anyone else "if caught"
the fact that something hasn't over a very long period of time from its adoption to now been used in a way is good evidence that it wasn't meant to be used that way
this isn't novel or rare behavior and it's not hard to catch
that's a big "if" given a court opinion which entirely vacates the financial penalty and argues for reversal and new trial over an error on summary judgment on first cause of action which necessarily pollutes findings of facts and at least one element required in all the later causes of action - not to mention the opinion arguing the findings of fact and pattern of behavior rely on acts which are barred by the statute of limitations
the outcome of still joining in support of the liability finding given the actual written opinion is puzzling indeed, almost like the two judges who are soon up for renewal of their seats thought about other considerations when doing it
almost like the outcome is crafted to remove all the real penalties for the liability finding (various injunctions and sanctions, attorney penalties and sanctions, and financial penalties) as a compromise position to allow the liability to stand but the actual bite to be minimal
wow, how convenient "the law" worked out this way
well, no, because the Accounting Standards Board permits valuations based on long-term expectations, even very optimistic ones, for changes in usage or disagreement about restrictions
w/re to the apartment, the Trump org corrected that in 2017, after a Forbes article made the "lie" public, long before AG James began her persecution, and the Trump org claims this was an inadvertent oversight (in CFCs listing billions in assets) and the AG provided zero evidence whatsoever this wasn't inadvertent (not to mention, this was findable public knowledge with a minimum level of research since the 90s)
or the Supreme Court's finding that MarALago couldn't be used as a private residence despite it literally being currently used as a private residence (and had been used as a private residence open and notoriously for decades) without issue in support of the laughable "finding of fact" about its value
or its finding failing to list rent stabilized apartments was fraud because it was wrong for Trump to think they wouldn't be long-term (we'll just avoid the majority of the 12 rent stabilized apartments did indeed lose that status over the period of CFCs)
seeing a pattern here?
now, why didn't James just use one of these "lies," and criminally prosecute Trump? why did she and clown Engoron have to weave together a series of misleading statements, i.e., any statements which have “the capacity or tendency to deceive, or create[d] an atmosphere conducive to fraud”?
why not just use a garden variety fraud statute for all of these "lies" ?
you have such a confident theory of the case and its outcome; I find it strange you haven't the slightest clue why the case brought against the trump organization using this specific law in this specific way for the first time in history and not other garden-variety laws (like the ones being used against AG James) which you're now using to buttress your claim any rando would be prosecuted
except that's not was done to Trump and that's not the case against Trump or the Trump org
and Executive Law s. 69 (12) is not properly characterized as a "civil forfeiture statute"
there are other laws in NY which aren't criminal which could have been used; the reason those weren't used is because it was otherwise barred by lack of evidence, statute of limitations, inability to satisfy an element, higher burdens and showings which couldn't be satisfied, inability to connect it to Trump as opposed to his employees (among many other issues), and this law allowed broad power to engage in asinine behaviors to just attack and harm Trump, his family, and anyone connected to his businesses
perhaps I'm being unfair and I've only read a dozen or so of your posts fitting the category, but every time I read or respond to one of your posts characterizing a legal case involving Trump or another of your political opponents, it's hard to avoid the conclusion you know just enough about law generally, the specific law, and some of the facts to buttress your opinion that Trump (or similar bad political opponent of yours) is awful or whatever which you've crafted over iterations of arguing about it on the internet
is that right? or are you generally interested in law, work in law, read these opinions and not just distilled summaries by agenda driven partisans in the media?
in any case, this exchange exemplifies why I typically do not respond to comments like this; it takes far more effort on my part to respond to why your mischaracterizations are wrong, legally ignorant, and contain context-less "facts"
to which a typical response will be a short and sweet "but what about the Trump Tower apartment listed as 30,000 square feet which is obvious criminal fraud you would be put in jail over" implying that's, even if true, dispositive with the actual Trump legal case
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Thanks for posting this. One thing I would add is that the decision you cite is from an intermediate appellate court in New York. There is likely to be a further appeal.
Yeah, I am pretty sure the normal process is that (1) people overestimate the value of their collateral; (2) the lender independently appraises the collateral; and (3) nobody (other than Trump) is ever prosecuted or sued by the AG for fraud.
I asked a similar question but I doubt I am going to get an answer. In fact, I'm pretty confident that even flagrant fraud by borrowers is not prosecuted if their is no reliance on that fraud and no damages. So for example, suppose a guy applies for a $5m line of credit with a bank and claims that his salary is $1m per year. The bank is given full access to his tax returns which show that his income is only $600k per year. The loan is ultimately paid in full and on time. Has anyone ever been prosecuted (or sued by the AG) in such a situation? I doubt it.
Yeah, I am skeptical about his characterization of the other cases. I asked him so identify the strongest such case against Trump to avoid any accusations of cherry picking, but as of yet I have not received a response. I think it's pretty likely that his claims would not stand up to scrutiny.
This is something which is regularly brought up by 3 of the 5 judges. These are filthy rich, sophisticated parties negotiating at arm's length with lawyers on both sides of the deal. Each of the statements included broad disclaimers noting this is their opinion, it's not the result of an audit and is not above disagreement and encouraging the other party to do their own due diligence (which they did). The trial court clown Engoron and the 2 appellate judges just handwave this away.
And many of the findings of the court around the Trump organization's properties in question, e.g., MarALago, are completely ridiculous.
And in the context of real estate valuations which are notoriously subjective. If a person thought the value of their property was what they could immediately sell it for then I wouldn't currently own it. There are rampant examples, especially when talking about expensive or unique properties, which sit empty and "overpriced" for significant periods of time until a party comes along and pays the "overpriced" amount because they value it in similar ways to the owner.
there are other enforcement actions under the executive law and recently, but they're not in similar situations which matters because of the way the broadly worded law is written, what it was written for, and the purpose of its existence and broad authority
this was pure political persecution where AG James used the government to force a private business to open all their books and communications for the last decade+, combed through them (while leaking repeatedly to the press), and then crafted a ridiculous, tenuously supported case against a political opponent which she promised she was going to harm
AG James uses her position to harm political opponents through the process of being investigated. She issues endless demands for documents and interviews to people and organizations she doesn't like to harm them with famous examples being the NRA and VDARE. The law is no shield to her victims and instead is used to victimize them.
I find it hard to believe people defending this case or AG James are doing anything other than who/whom analysis and motivation.
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I would have to disagree with that one based on my experience. Is anyone able to provide 2 or 3 precedents for similar legal proceedings against ordinary citizens from the last 20 or 30 years?
Of these cases, which would you say was the most egregious case with the most unquestionable guilt? I am asking because I would like to look at it more carefully.
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To be charitable to their position, they percieved Trump as breaking all sorts of norms. Mostly to do with decorum, as he offends what their aesthetic preference for what a president should be like, and they didn't feel like they would be to blame for breaking another norm in retaliation (the one against engaging in lawfare against the outgoing administration, which Trump upheld in his first term despite rhetoric to the contrary during the campaign).
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