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naraburns  nihil supernum  1yr ago (text post)   37960 thread views

Culture War Roundup for the week of March 27, 2023

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  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.

Only courts, not prosecutors, can definitively say whether something constitutes a crime.

Not only that, but only courts of a particular jurisdiction can say whether something constitutes a crime in that jurisdiction, meaning the NY court has no way of determining whether or not Trump intended to commit a federal crime.

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.

Semantics.

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.

CA can write a law that says "anyone convicted of child molestation cannot hang around a playground" but they cannot say what constitutes child molestation in TX when he hasn't been convicted there.

the NY court has no way of determining whether or not Trump intended to commit a federal crime.

You say that because you are unfamiliar with the relevant legal concepts. Courts of one jurisdiction apply the laws of other jurisdictions all the time.

Semantics.

If you refuse to acknowledge the difference between 1) charging someone with murder; and 2) alleging that he previously committed a murder, I can't help you.

CA can write a law that says "anyone convicted of child molestation cannot hang around a playground" but they cannot say what constitutes child molestation in TX when he hasn't been convicted there.

The point is that the issue of whether CA can prove that the defendant previously committed a crime in TX has nothing to do with the issue of whether CA is prosecuting the defendant for the TX crime. Again, this is very common.

Can you give one example of choice of law issues in the criminal context (which is a whole different issue compared to civil) where the other law is federal law.

Quiet to the contrary this is not very common.

I don't know why it matters whether the other law is federal or state. A foreign jurisdiction is a foreign jurisdiction:

The least adjudicated elements standard was explicitly adopted in Castro from "the Finley-Crowson line of cases." (People v. Castro, supra, 38 Cal.3d 301, 316-317; People v. Crowson (1983) 33 Cal.3d 623, 633-635 [190 Cal. Rptr. 165, 660 P.2d 389]; In re Finley (1968) 68 Cal.2d 389, 392-393 [66 Cal. Rptr. 733, 438 P.2d 381].) In those cases the Supreme Court was addressing itself to the manner in which to evaluate convictions in foreign jurisdictions for the purpose of applying California's former habitual offender statute (in Finley), and California's sentence-enhancing Penal Code section 667.5, subdivision (f) (in Crowson). In both cases the court held that the foreign conviction could be considered only if the elements of the offense necessary for conviction under the foreign statute are the same as the elements necessary to convict under the comparable California statute; this determination must be made without reference to the facts of the particular offense.

People v. Thomas, 206 Cal. App. 3d 689, 699-700 (1988).

Only courts, not prosecutors, can definitively say whether something constitutes a crime. It is a separation of powers issue.

Citizens United was pretty clear that the purpose of contribution limits is to prevent quid pro quo. Does that count as a court saying something meaningful about what constitutes a crime here?

What Citizens United said was this:

With regard to large direct contributions, Buckley reasoned that they could be given "to secure a political quid pro quo," id., at 26, 96 S.Ct. 612, and that "the scope of such pernicious practices can never be reliably ascertained," id., at 27, 96 S.Ct. 612. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U.S.C. § 201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28, 96 S.Ct. 612 (citing Buckley v. Valeo, 519 F.2d 821, 839-840, and nn. 36-38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U.S., at 260, 107 S.Ct. 616; NCPAC, 470 U.S., at 500, 105 S.Ct. 1459; Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (NRWC). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here.

So, if you are asking whehther federal laws re campaign contributions apply only to quid pro quo contributions, no, they don't. The limits on contributions and the requirement to report contributions apply to all contributions, not just quid pro quo contributions (which, as the Court notes, would be separately prosecutable under bribery statutes).

Note Stevens' dissent, which is claiming that the majority construed the rationale for campaign finance laws too narrowly:

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.

Stevens tried to push the "appearance of" line, like you have. He tried tying it to "ingratiation and access". Stevens lost. Furthermore, while John Edwards took a million dollars from two specific other people in order to pay off his mistress, what "ingratiation and access" was acquired by Trump paying off Trump's mistress?

You are forgetting that Citizens United was about limits on expenditures, not on contributions. That is the crux of the disagreement between Stevens and the majority; the majority thinks that avoiding the appearance of corruption is sufficient to limit contributions but not independent expenditures, while Stevens thinks it is sufficient to limit both. The majority said:

[T]he Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. In Buckley, the Court found this interest “sufficiently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, it found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.” Id., at 45. . . . For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

558 U.S. 310, 356-357.

Five paragraphs later:

When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. See McConnell, supra, at 296–298 (opinion of Kennedy, J.) (citing Buckley, supra, at 26–28, 30, 46–48); NCPAC, 470 U. S., at 497 (“The hallmark of corruption is the financial quid pro quo: dollars for political favors”); id., at 498. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt

When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption

But Congress can limit and/or require the reporting of all contributions as a means of combatting quid pro quo contributions and the appearance of quid pro quo corruption:

Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—"quid pro quo" corruption. As Buckley explained, Congress may permissibly seek to rein in "large contributions [that] are given to secure a political quid pro quo from current and potential office holders." 424 U.S., at 26, 96 S.Ct. 612. In addition to "actual quid pro quo arrangements," Congress may permissibly limit "the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions" to particular candidates. Id., at 27, 96 S.Ct. 612; see also Citizens United, 558 U.S., at 359, 130 S.Ct. 876 ("When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption").

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner "influence over or access to" elected officials or political parties. Id., at 359, 130 S.Ct. 876; see McConnell v. Federal Election Comm'n, 540 U.S. 93, 297, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (KENNEDY, J., concurring in judgment in part and dissenting in part). And because the Government's interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. See Citizens United, 558 U.S., at 360, 130 S.Ct. 876.

McCutcheon v. Federal Election Com'n, 572 US 185 (2014).

So, Congress can limit speech (in the form of contributions) in order to combat the appearance of quid pro quo corruption, but cannot limit speech in order to combat the appearance of mere influence or access.

So, what is the appearance of quid pro quo involved when Donald Trump pays his porn star? Your blockquote says:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption.

When Donald Trump spends large sums of money in connection with an election, in what way is it an effort on the part of Donald Trump to control the exercise of an officeholder's (presumably, Donald Trump's) official duties?

There is no requirement that there be an appearance of quid pro quo in a particular case. Rather, the Court has said that Congress can limit all contributions, and can require the reporting of all contributions, in order to combat the perception of quid pro quo corruption. If I fail to report a contribution to my campaign, I have violated the law, regardless of whether it is quid pro quo. As noted earlier, if it is indeed quid pro quo, that is a different and additional crime.

More comments

No one is fucking saying he would be booked under federal law and yes it is entirely different from your example. It would be as if CA decided that someone who moved from Texas can be charged with frequenting playgrounds because CA thinks he violated a Texas law despite Texas never actually trying him.

There are numerous legal commentators suggesting this is novel (including the NYT). No one is even saying this novelty is dispositive but it goes to the prudential matter of “should you prosecute.” Your schtick here grows tiresome.

No one is fucking saying he would be booked under federal law

Dude, that is exactly what OP said: "It's not a big stretch for a state prosecutor to charge an individual with a federal crime?"

No one is even saying this novelty is dispositive

Again, that is exactly what OP said. OP claimed that this is "a state prosecutor ... charg[ing] an individual with a federal crime", which would in fact be dispositive, because a state court does not have jurisdiction to try a federal crime. But that is not what is happening.

It would be as if CA decided that someone who moved from Texas can be charged with frequenting playgrounds because CA thinks he violated a Texas law despite Texas never actually trying him.

Which is exactly my point: The CA prosecutor would have to prove the conviction took place, but the prosecutor would not thereby be "charg[ing] an individual with a [Texas] crime", as OP claimed. As @MadMonzer noted, this is completely normal, and it does not transform the prosecution of a CA crime into the prosecution of a TX crime.

The whole substance of the underlying indictment argument is that Trump intended to commit a federal crime and by dint of that crime NYS can charge a separate crime. Of course, no federal prosecutor has attempted to bring that crime.

What that means is that NYS is effectively trying to enforce federal law in substance if not in name. That is what OP was saying.

Once again, this is entirely different from your California example. It would be akin to California saying “We think defendant violated Texas law; despite Texas never charging him or finding him guilty we are going to say it was a violation of Texas law and because we say it is a violation of Texas law we can now bring this separate California charge.”

That is not normal. Not even close.

It raises many questions. For example, if there are questions as to what is in fact Texas law (the defendant could say the law is Y, California could say X — does California court get to determine what is Texas law; what if there are constitutional issues with the Texas law — does a California court get to decide those matters). Once again, this is entirely different from a situation where another forum has adjudicated a matter under that forum’s law.

That is what OP was saying.

No, OP was saying that the state was charging a violation of Federal law, which of course WOULD BE illegitimate were that the case. But it isn't.

if there are questions as to what is in fact Texas law (the defendant could say the law is Y, California could say X — does California court get to determine what is Texas law; what if there are constitutional issues with the Texas law — does a California court get to decide those matters)

Yes. But a CA court's decision re TX law is not binding on TX courts, while a TX court's decision re TX law is binding on CA courts.

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