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naraburns  nihil supernum  1yr ago (text post)   37955 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.

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.

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.

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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)

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