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naraburns  nihil supernum  1yr ago (text post)   37959 thread views

Culture War Roundup for the week of March 27, 2023

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Trump Indicted: https://www.cnbc.com/2023/03/30/donald-trump-indicted-in-hush-money-payment-case.html

This is a major enough story that I think it goes beyond needing more than just a link.

NYT article.

The prosecution’s star witness is Michael D. Cohen, Mr. Trump’s former fixer who paid the $130,000 to keep Ms. Daniels quiet. Mr. Cohen has said that Mr. Trump directed him to buy Ms. Daniels’s silence, and that Mr. Trump and his family business, the Trump Organization, helped cover the whole thing up. The company’s internal records falsely identified the reimbursements as legal expenses, which helped conceal the purpose of the payments.

Although the specific charges remain unknown, Mr. Bragg’s prosecutors have zeroed in on that hush money payment and the false records created by Mr. Trump’s company. A conviction is not a sure thing: An attempt to combine a charge relating to the false records with an election violation relating to the payment to Ms. Daniels would be based on a legal theory that has yet to be evaluated by judges, raising the possibility that a court could throw out or limit the charges.

Really looking forward to more detail, because this sounds pretty contrived.

Am I the only one thinking Daniels should have asked for more money? Charlie Sheen paid 75 times that to keep his HIV diagnosis quiet, and he wasn't even running for President, never mind getting elected.

Do you think "Trump Banged Pornstar (at least) Once" is really a secret worth paying millions to keep? I'm half surprised he didn't pay her to make a movie about the incident.

Ms. Daniels would be based on a legal theory that has yet to be evaluated by judges, raising the possibility that a court could throw out or limit the charges

The NYT is being overly dramatic. The law in question is falsifying business records, specifically that Trump recorded payments to Cohen as legal fees when they were actually reimbursements to Cohen for hush money paid to Daniels. That crime is a felony if done with the "intent to commit another crime or to aid or conceal the commission thereof.” The supposedly new legal theory is that that applies to other federal crimes, not just state crimes. Courts have apparently not previously ruled on that particular question, but it is hardly a stretch, given the plain text of the law. But perhaps there are reasons to rule otherwise.

but it is hardly a stretch,

The untouchable has been made touchable. People aren't freaking out because the law is being stretched, but who it is being stretched to cover. Presidents as Kings has taken a grave blow.

There is no reason to believe that these standards will be applied to Blue-Tribe approved presidents, no matter how much like a king they behave.

John Edwards was prosecuted for almost exactly the same thing (the Feds went after him on the underlying campaign finance charges, rather than a State prosecuting the cover-up) and although he wasn't an ex-President, he was a Democratic Senator and Vice Presidential candidate, which I think counts as Blue Tribe approval.

The case went to trial, and there was a hung jury on most of the counts, and the prosecution didn't seek a re-trial. That is a normal level of prosecutorial effort for a real crime that isn't a cause celebre. The decision to prosecute came from the Public Integrity Section of the DOJ, which is staffed by career government lawyers and looks like it is part of the Deep State. For whatever reason, the US Deep State seems unusually willing to prosecute process crimes relating to large sums of money in a way that they are not willing to prosecute other crimes committed by insiders.

Article on John Edwards at the time and indictment.

John Edwards' case was a vastly better case for the purpose of campaign finance law. He took someone else's money and gave it to his mistress. The indictment describes the purpose as:

In order to restrict the influence that any one person could have on the outcome of the 2008 primary election for President of the United States, the Election Act established that the most an individual could contribute to any candidate for that primary election was $2,300.

Citizens United limited the purpose of these laws to quid pro quo. Consider Steven's dissent in Citizens United, trying to set a wider outer bound of what type of corruption these campaign finance laws can get at (beyond quid pro quo), saying things like:

Congress may “legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.” A democracy cannot function effectively when its constituent members believe laws are being bought and sold

and

Proving that a specific vote was exchanged for a specific expenditure has always been next to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. Yet, even if “[i]ngratiation and access . . . are not corruption” themselves, they are necessary prerequisites to it; they can create both the opportunity for, and the appearance of, quid pro quo arrangements. [Emphasis added]

For Edwards, this could make sense. He took a million dollars from two specific blokes and gave it to his mistress. Those two specific blokes very likely had "ingratiation" and "access" on account of that money. I could at least see someone making a reasonable argument that they think such an arrangement means that laws were being bought and sold. They didn't prove quid pro quo, but it at least could point in that direction.

In this case, Trump it makes no sense to claim that Donald Trump was trying to enter a quid pro quo with Donald Trump; it makes no sense to claim that Donald Trump was trying to gain ingratiation, access, or undue influence over Donald Trump. At best, one could try to claim that the Enquirer was trying to gain something in return (like influence) even though money never actually changed hands between them, but Trump could say the same thing that he would say to everyone else who he has bought or attempted to buy something from: “That’s what the money (I offered you) is for.".

In fact I think it's already quite clear that Presidents as Kings is an even more untouchable standard, so long as you weren't elected against the wishes of the entrenched elite. But god help you if you were.

He is being charged with a state crime, not a federal one. The federal crime is re campaign donations .

Dude, this thing where you pretend to be obtuse (while still being insanely nitpicky and condescending) whenever you want to score some partisan points is so fucking old.

Stick to the arguments, rather than projecting motives onto people and flipping out at them.

  1. Under state law, the statute of limitations was tolled during the periods Trump was out of state. See comment elsewhere. And, even if the statute has run, that does not transform the prosecution into a prosecution for the federal crime.

  2. There appears to be no requirement that they prove he actually committed another crime, but only that he intended to commit another crime. Had I lied about reimbursing Cohen for bribing the night watchman at a bank to pretend be asleep during a planned theft, I would be guilty of a felony even if the theft never took place. Morever, even if they did have to prove that he committed another crime, that would not transform it into a prosecution for that crime. Lots of laws require proof of the commission of a predicate offense, including offenses from other jurisdictions, but that does not make them prosecutions for those offenses.

  3. I don’t know why you assume that someone who simply states facts you find inconvenient is partisan. For the record, as far as I can tell, Bragg is motivated primarily by his own self-interest. Moreover, the prosecution is both politically beneficial for Trump and a terrible precedent; if we want to avoid banana republic territory, then politicians should only be prosecuted for very, very serioys crimes. But my personal opinion does not alter the legal status of the prosecution.

Nice try to deflect. He is being tried with a state felony that rests on him committing the federal crime. The state needs to prove as a predicate the federal crime so in effect the state needs to prove the federal crime in order to get the state felony conviction.

No, they don't need to prove the other crime. They need merely get a jury to agree that the state crime was committed in furtherance of the other crime. The legal system is full of this kind of crap; another version of it is where sentencing for one crime can be based on commission of other crimes which were alleged but not proven or sometimes not even prosecuted.

There appears to be no requirement that they prove he actually committed another crime, but only that he intended to commit another crime.

You're just kicking the can down the road. They still have to prove that what they claim he intended was in fact a crime, when the relevant authority already said it isn't.

  1. No, the relevant authorities simply declined to prosecute.

  2. Only courts, not prosecutors, can definitively say whether something constitutes a crime. It is a separation of powers issue. Prosecutors' opinions are not binding on anyone.

  3. Regardless, OP is incorrect to say that the state is charging him with a federal crime. Even if the DA has to prove that he committed the federal crime, he is not charged with that crime. If he is convicted, judgment will be entered on the state crime alone, not the federal crime, and the punishment will be that imposed for the state crime. It is no different than when a person convicted of child molestation in TX moves to CA and is charged with frequenting playgrounds. The DA must prove that he committed the TX crime, but the DA is trying him for violation of a CA law, not a TX law.

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The supposedly new legal theory is that that applies to other federal crimes, not just state crimes.

Wouldn't this at least plausibly punt the jurisdiction for this crime to a federal court? There are all sorts of odd cross-jurisdictional questions this brings up like whether or not a pardon for the federal crime would bar state prosecution. Aren't there several immigration cases suggesting that states don't have the authority to enforce federal law by themselves?

But I'm not a Real Lawyer, so perhaps I'm missing something.

No, because the crime charged is a state crime. The criminal act is misreporting the payment as legal expenses. If it becomes a felony when it was intended to facilitate a federal crime, that does not mean that the state is enforcing that federal crime. They are still enforcing the state crime. And, because it is a state crime, federal courts would not have jurisdiction.

You keep saying this and keep being obtuse. For there to be a felony here there needs to be a federal crime. Thus as a predicate the state needs to prove the federal crime (ie prove this crime helped another crime).

That means indirectly the state is enforcing federal law.

I keep saying it because it is an accurate statement of the law. If you have authority for the proposition that the fact that the prosecution for crime X happens to "indirectly" enforce federal law divests a state court of jurisdiction over crime X, I would love to see it.

I could just as easily ask you for authority the other way around. The whole reason people are raising this as novel is precisely because NYS needs to effectively try a federal crime despite the federal government not prosecuting the crime. That is to my knowledge (and I’m guessing yours and numerous legal commentators) heretofore untried. Therefore it is novel.

Perhaps you are confusing this with double jeopardy cases where there is state crime X and federal crime X. Here, there is no state level campaign finance law.

The whole reason people are raising this as novel is precisely because NYS needs to effectively try a federal crime

No, they don't. As I have said several time, they only need only show an intent to commit a federal crime. Whether the payment (or Stormy Daniels's forbearance) meets the definition of "campaign contribution" under federal law is a purely legal question that is not tried at all. Trump's lawyers will move to dismiss the felony charge on the ground that what he attempted was not a federal crime, because no "campaign contribution" was made. If the judge agrees, that will be the end of it. If the judge disagrees, the jury will NOT be asked to decide whether Trump violated a federal law, but will be told, "if you find that Trump intended to fail to report the payment/forebearance/whatever as a campaign contribution, you must find that the offense is a felony. If not, you must find that the offense is a misdemeanor." They will not be asked to determine whether he actually committed a campaign finance violation.

More comments

The State is enforcing a State law against false accounting. Some possible motives upgrade false accounting, under State law, from a misdemeanor to a felony. One of those is facilitating a federal crime.

There are lots of laws like this, and they don't cause jurisdictional issues - they sometimes cause practical problems because of the need to resolve a technical point of the law of jurisdiction A in the courts of jurisdiction B, but in a federal system like the US that is also something that happens all the time and processes exist to deal with it.

There can even be laws where the predicate crime is a violation of foreign law. I don't know about US examples, but for example the UK has a crime of "Failure to prevent facilitation of foreign tax avoidance offences" where the predicate crime is a violation of foreign revenue law.

In those cases, I understand generally the predicate crime was adjudicated.

It is quite odd for example to say there was a crime in Jurisdiction A that was uncharged. However, Jurisdiction B is going to effectively pretend that crime occurred (not exactly what is happening here but not too far off).

Note that sometimes one forum depends on another forum to interpret that other forum’s law (ie advisory opinion). Federal courts are the appropriate forum for campaign finance law but as an Art III matter federal courts cannot provide that advisory opinion.

Can you provide one case where something like what NYS is doing occurred? If not, can you stop saying this isn’t abnormal. If you can provide the case, I’ll admit to being wrong.

A rarely tested, underdeveloped, and uncharged to the specific defendant area of law. That is troubling both from a prudential perspective and from a legal perspective (eg is there a due process concern)

I generally agree that this case is embarrassingly weak. Internal corporate accounting standards are way outside my pay grade, but how is hush money pursuant to an NDA not a legal expense though? If it's apparently illegal to label it as a legal expense, what exactly should it have been labeled?

A legal expense is a payment for legal services. Stormy Daniels did not perform legal services for Trump.

got 'em coach!

Even assuming the accounting was illegal, why should I believe that Trump gave direction on how to record the payment in the books?

Most accounting systems will have an auto-suggest based on past expenses recorded against vendors. An accountant could have just thoughtlessly clicked legal expense as it popped up.

how is hush money pursuant to an NDA not a legal expense though

And how is violating an NDA to blackmail a politician not in itself some kind of crime?

EDIT: Also: If hush money doesn't hush someone, is it really hush money? Daniels is not doing wonders for the perception of the ethics of sex workers.

Daniels is not doing wonders for the perception of the ethics of sex workers.

LOL. But really, Trump should have sued D

He did! https://www.nbcnews.com/politics/donald-trump/stormy-daniels-must-pay-300k-donald-trump-losing-defamation-case-appea-rcna21002

No, that's where Daniels sued him for defamation and ended up losing and having to pay his attorney's fees. Trump should have sued her for violating the NDA.

On the other hand it would be an NYC jury, so my priors on it being a remotely fair trial are very low.

Right. The idea is to bring Trump up before a Democratic jury in a Democratic state with a Democratic court system, in a political prosecution based on a dubious technicality. The message being that Republicans had better watch out; if they don't stick to their role as genteel losers, they will be pursued to the ends of the earth.

New York doesn't allow felony convictions on a majority vote, so it only takes one MAGA juror to hang the jury. Manhattan voted 12% for Trump in 2020, and the 5 boroughs were 23%.

I predict the same result as the Edwards prosecution - unless the whole thing gets overtaken by more serious charges coming out of one of the other investigations (similar to the way the prosecution of Cohen for the same crime got overtaken by events when it turned out that he was also guilty of tax evasion and running a taxi medallion scam).

New York doesn't allow felony convictions on a majority vote, so it only takes one MAGA juror to hang the jury.

So they'll ensure there are none.

Oh.

What‘a the best guess for the federal crime? Is that where the campaign violations come in?

Somehow I doubt they’re nailing him on adultery.

To my understanding, yes, they're claiming that the hush-money payment was a campaign contribution that should have been, but was not, reported as such. This seems...unlikely.

And to he fair to Trump: having your lawyer draft and execute a private NDA is a legal expense. It's in fact not a campaign contribution from Trump to himself.

Isn't this the same shit John Edwards noy get indicted for?

They charged John Edwards with 6 crimes and got zero convictions.

Also a political donor gave Edwards checks that he used to fund his payments. The allegation (that resulted in no conviction) is that this constitutes an undisclosed campaign contribution.

Trump is a step removed from Edward's not-found-guilty issues in that he spent his own money rather than a donor's. So it's an alleged undisclosed campaign contribution to himself to deal with his personal matters.

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