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naraburns  nihil supernum  2yr ago (text post)   38921 thread views

Culture War Roundup for the week of March 27, 2023

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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.

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

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.

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.

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).

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