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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.

In a few places, I've seen the purported basis for prosecution being a "novel theory" on the law. Now, I know that I'm a legal philistine, not versed in the way that very serious law people are, but I find it irksome that there are any remaining novel theories to be had in criminal law (outside of things pertaining to new technology). After a millennium or so of the underpinnings of the law system developing and a couple hundred years of American law, people should more or less know what is a crime and what isn't a crime, without a ton of wiggle room for any novel theories regarding the latest in legal creativity. I wouldn't go quite so far as to say that this proves that the case is politically motivated bunk, but it certainly increases my likelihood of believing it to be so.

but I find it irksome that there are any remaining novel theories to be had in criminal law

Welcome to complex systems. Evolution's a bitch.

You now realise that all law is BS thought up ad hoc by rich connected people to justify whatever doing whatever they want on that particular day. And it always has been.

What you identify as a bug is in fact a feature.

The recent stuff coming out of the LBRY case has been a good example.

I am on board with some caution, because we haven't seen the literal document yet. There are a lot of possibilities. That said, there has been a lot of news reporting, and SDNY has been plenty talkative privately with left-leaning journalistic outlets over the last several years. We just had reporting about how there was a "mutiny" in the office over whether or not to finally bring the charges.

So, on the amount of caution, I would contrast with the caution I was suggesting back in the pre-Mueller days about the Trump-Russia thing. On that issue, it was highly likely that if there was any there there, it was done pretty secretly. It was highly likely that if a case was going to be made, it was going to be made using the much more secretive counterintelligence resources of the federal government. And Mueller wasn't going to be giving private exposes to journalists; he was going to just let his documents do the talking.

Those factors are different here. Every journalist that is likely mainlined in to SDNY is telling the same basic story with the same basic parameters that we've known for years. We've known the basic contours, because they pushed super hard in the Cohen indictment to cram it in there! You can easily believe that every ounce of effort was put forth to make sure that he pled guilty to the campaign finance charge so that they could blast "unindicted co-conspirator" on every mass media outlet they controlled.

So, while it may be the case that some additional facts have been discovered, we probably actually have a really good guess as to the main thrust of the case, because we've probably known the main thrust of the case for the past few years. It's been turned over and over by plenty of legal experts, most of whom came down on the side of, "This is a pretty out there, novel interpretation of campaign finance law, struggling with the John Edwards history as well as the Supreme Court's embrace of quid pro quo being the purpose of such laws in Citizens' United." We know who paid who, from whose account, and how it was labeled.

I still totally agree that we should have caution in making actually conclusive statements about the contents of this particular indictment, but if you paid close attention to this issue the first time around, I feel like there's a pretty low (<10%) chance of there being anything genuinely new/surprising besides perhaps a few minor facts/twists.

There could be lots of related charges such as tax fraud, witness tampering, etc that would be much stronger

Those would be some potentially significant shifts. I don't think I've seen any reporting or even wild speculation from the usual commentariat that has even hypothesized particular facts that could be used to support such a thing. Have you seen anything at all?

In this particular case, I believe the "novel theory" concerns an aspect of campaign finance law. That entire field of law is about fifty years old. I make no promises how that will (or should!) move your priors, so take it as you will.

Not that you’re wrong to be suspicious, but it’s not entirely unreasonable for novel law to come up. Federal-state intersections are weird. There’s just not as many people operating in this overlap.

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