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naraburns  nihil supernum  1yr ago (text post)   38009 thread views

Culture War Roundup for the week of March 27, 2023

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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.

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."

I'm not so certain about this. It is well-established that every element of a crime must be decided by the jury. If intention to commit an a felony is an element of the crime, it must be proven to the jury that the intention to do the action existed, and also that the action would constitute a felony.

also that the action would constitute a felony.

Not if that is a question of law, rather than of fact.

First, there are numerous legal questions associated with campaign finance law. It isn’t clear that a NYS court has jurisdiction to even answer those questions and federal courts can’t give advisory opinions. That is one reason why people are saying this is novel and kind of out there. Second, to answer the question of whether trump intended to break a particular law requires applying facts to a relatively clear law. So what the jury needs is a clear law that is anything but clear. This brings us back to problem 1.

Please stop pretending this is normal course. It isn’t. It is novel. Doesn’t mean it is incorrect but this isn’t down the fairway.

It isn’t clear that a NYS court has jurisdiction to even answer those questions.

Nonsense. As noted elsewhere, courts interpret the laws of other jurisdictions all the time.

requires applying facts to a relatively clear law.

First, you have no idea how clear the federal law is. It might be perfectly clear that hush money payments must be reported. You have no idea what people mean by a "novel legal theory." As noted, based on my reading the supposedly novel part is the use of a federal law as the predicate to make it a felony.

Second, if it is unclear, the court will interpret it. It will decide thatdoing X is a violation of federal law,and will tell the jury, " If you find that Donald Trump violated NY law, you must then decide whether the allegation that Donald Trump acted with the intent to do X, is true." If the jury returns a "true" finding on that allegation, the court will enter judgment for a felony conviction. If they return a "not true" finding, it will enter judgment for a misdemeanor conviction.

You once again failed to support that. You cited a case where there was a conviction in another jurisdiction. You failed to cite a single case where one jurisdiction effectively (ie indirectly) adjudicates a crime in another jurisdiction.

Second screw your condescending attitude. I noted early on the exact novelty you “based on your reading.” I then expanded it to include some reasons why it is difficult here, especially in criminal federal context.

Third, many commentators have noted the campaign finance law is unclear and under developed. I don’t practice in that area but am relying on them.

Fourth, you likely messed up your legal analysis. They can’t enter a misdemeanor conviction because that statute likely has tolled.

I’m doing speaking with you in perpetuity however.

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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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