Patterico's Pontifications

3/29/2023

More Reasons the Potential Trump Charge Is Not Necessarily That Much of a Stretch

Filed under: General — Patterico @ 8:22 am



Over the weekend, David French had a piece in the New York Times arguing that the potential prosecution of Trump in Manhattan is unwise. I didn’t know about it until I listened to the Advisory Opinions podcast yesterday because I don’t make a habit of reading the New York Times. (Sorry, David!) I learned some interesting information from the piece and the podcast, though, about the statute of limitations argument that was part of what had Sarah Isgur losing sleep. Namely, there is almost certainly no statute of limitations problem, because of a weird quirk of New York statute of limitations law:

New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.” A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.” Under that reading, that statute of limitations clock stopped ticking when Trump was away.

Trump was “away” a while, since he was president for four years. This means that, for the felony, there is almost certainly no statute of limitations issue.

That leaves two primary objections: a) the difficulties of proving that a payment to hush up an affair is a campaign finance violation, and b) the oft-stated claim by French and Isgur that the feds declined to prosecute the conduct that elevates the crime to a felony. We’ll start with the latter issue. French says:

Even though I believe Cohen committed a campaign finance violation (and even though the Department of Justice mounted an unsuccessful prosecution of the 2004 Democratic vice-presidential nominee John Edwards on a similar legal theory), I’m still skeptical of Bragg’s Manhattan case. Ryan Goodman and Andrew Weissmann recently argued in these pages that “it would be anathema to the rule of law not to prosecute the principal for the crime when a lower-level conspirator”— meaning Cohen — “has been prosecuted.” Yet that’s exactly the choice the Department of Justice made. Neither the Trump nor the Biden Justice Department brought federal charges against Trump. In addition, Cyrus Vance Jr., a previous Manhattan district attorney, investigated the same case and did not bring charges.

Add these factors, and Bragg’s case against Trump starts to look, well, unique. We’re talking about the first-ever indictment of a former president brought by a state district attorney — one that his predecessor didn’t choose to seek and that relies on federal criminal claims that the Department of Justice declined to prosecute.

As I argued in a long Substack piece, I disagree with French and Isgur that the potential New York felony charge “relies on federal criminal claims that the Department of Justice declined to prosecute.” In my piece, I argued that the relevant “federal criminal claims” could be the campaign finance charge against Michael Cohen, which the feds did prosecute and as to which they obtained a conviction. All the state prosecutor need show is that Trump falsified records to conceal Cohen’s crime. Consult my piece for the full argument.

Also, in my piece I argued that you can’t attribute too much significance to the feds having declined to prosecute Trump for this behavior. They weren’t allowed to prosecute Trump while he was president under longstanding DOJ policy. Once Biden took office, reporting suggests they thought the incident trivial in light of the events of January 6. It’s how Trump escapes liability for thing a; the next day he commits thing b, which is worse. (He escapes liability for thing b by committing thing c, which is still worse. Etc. We’ve been through the alphabet of depravity multiple times over now.)

Isgur tells me (see comments here) that my post might be in the show notes for the next episode of Advisory Opinions, which is a hint that they might be discussing my arguments today. If so, how exciting! If that does come to pass, you guys will be among the first to hear about it.

That leaves the second potential objection: showing a hush money payment to the other half of an adulterous pair is a campaign expense. I don’t think this part is all that hard, the dreaded John Edwards case notwithstanding, because of the timing element. And in his recent piece, French agrees, citing an older piece of his in which he argued that the facts of this case are much stronger than in the John Edwards case. The timing of the payments–close to the election despite a years-old affair–are striking. And as I have written before, the treatment of the similar Karen McDougal affair by the National Enquirer appears to have been motivated by campaign purposes, at least in part. As I explained in 2018, a Wall Street Journal story reported on all this at the time:

[T]he Wall Street Journal reported it on November 9 (credit to Justin Miller for catching this):

As a presidential candidate in August 2015, Donald Trump huddled with a longtime friend, media executive David Pecker, in his cluttered 26th floor Trump Tower office and made a request.

What can you do to help my campaign? he asked, according to people familiar with the meeting.

Mr. Pecker, chief executive of American Media Inc., offered to use his National Enquirer tabloid to buy the silence of women if they tried to publicize alleged sexual encounters with Mr. Trump.

I find it very interesting that David Pecker was apparently a witness at the grand jury Monday.

Keep in mind that the payments don’t have to have been exclusively for campaign purposes. The intent need only include a motive to influence the election. Even John Edwards’s jury was instructed:

If you find beyond a reasonable doubt that one of [the donor’s] purposes was to influence an election, then that would be sufficient.

(My italics.) As French argued in 2018:

Here is the fundamental reality, Republicans — there is already far more evidence of legal culpability against Trump than ever existed against Edwards, and a federal judge permitted the Edwards case to go to trial. It is true that, if Trump does eventually face indictment, a different judge may have a different view of the law, but if Trump is counting on a favorable legal ruling, he’s playing a dangerous game indeed.

I agree. And now that we know that the statute of limitations issue is of no moment, and given my arguments that it is essentially irrelevant that the feds declined to prosecute Cohen . . . I don’t think this charge would be as much of a stretch as the rest of the crowd all agrees it is.

I guess we’ll see.

UPDATE: Sounds like they did discuss my Substack analysis on the podcast, briefly:

I hope they hit on the point that it could be Cohen’s crime that Trump was trying to cover up.

108 Responses to “More Reasons the Potential Trump Charge Is Not Necessarily That Much of a Stretch”

  1. There is a flaw in your argument that Trump was trying to conceal Cohen’s crime:

    It assumes that Trump thought that Cohen was committing a crime that had to be concealed. You haven’t established that Trump thought it was a crime, only that Cohen and the prosecutor agreed it was a crime. To the contrary, Trump has consistently argued that his actions weren’t a crime (and that by extension Cohen’s actions with regards to the payment to Daniels weren’t also). Unless Trump thought that Cohen’s actions were a crime, then you have no motive.

    Observer (2fa9d6)

  2. I hope they discuss your post, Patterico.

    I think it would be enough to show Trump concealed the payment to Daniels, or helped cover it up, in part to protect his campaign, Observer.

    DRJ (0abb72)

  3. Even if Trump is guilty, would it do more harm than good to prosecute him for it? Trump seems to want to be tossed into this briar patch and is making it harder for the prosecutor to back down.

    It’s not clear if he expects to win on the felony charge, or if he expects to be able to spin this as “persecution.” In any event, it’s a lightweight charge when he’s facing charges of election tampering and some level of insurrection charge.

    I’ve said all I care to about how little I think Cohen’s guilty plea is worth, but I also believe that to prosecute a former president you need to charge serious malfeasance in the job rather than this kind of leveraged indictment.

    Kevin M (1ea396)

  4. The crime by Cohen involved a campaign finance violation for not reporting donation(s) to help the Trump campaign (the hush money payments), and for exceeding the amount allowed by one donor.

    I think Trumps charges would involve campaign finance violations for concealing or covering that up in part to protect his campaign, even if he also wanted to protect his family.

    DRJ (0abb72)

  5. “the defendant was continuously outside this state.”

    I think that Trump entered New York on several occasions while president. Speaking at the UN, for example, if not campaigning in 2020.

    But wait…

    A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.”

    I would like to see their definition of “continuously”

    Kevin M (1ea396)

  6. I think Trumps charges would involve campaign finance violations for concealing or covering that up in part to protect his campaign

    With a normal candidate this would be an easy assertion. With Trump? Nobody seems to care. This is a situation that his supporters have already discounted and raking Trump over the coals again for this same thing will just make them angry -er.

    What is the endgame? Put Trump in jail for this, hoping it stops he re-election push? What it will do force the GOP to nominate him again as his supporters will have their backs up.

    And that’s what I REALLY do not want.

    Kevin M (1ea396)

  7. You may want to read the case, Kevin.

    DRJ (0abb72)

  8. The whole idea that Trump was going to be indicted appears to be a fraud:

    ……….
    ………Donald Trump is primarily a showman. And in the past two weeks, he proved to be a decent magician, faking us all out.

    Trump made a prediction that, in retrospect, was nothing more than a bluff. I always suspected (and even wrote) that his real target wasn’t Alvin Bragg, the New York City prosecutor, but Governor DeSantis.

    It has been a week and a half since Trump predicted he was going to be arrested imminently. He chose a specific day even.

    And has spent every moment since attacking Governor DeSantis for not defending him against the indictment. Barely mentions the prosecutor at all. Every Trump proxy in the world has been attacking DeSantis for failing to stop a NYC prosecutor, for not mobilizing the national guard to defend Mar-a-Lago (hyperbole on my part!), and for being s Jeb! and Paul Ryan acolyte.
    ………
    None of us knows whether Alvin Bragg will bite the bullet and indict Trump, but it seems pretty clear that Trump himself doesn’t care that much about the charges. He certainly didn’t know anything about an indictment and arrest, since the grand jury was still hearing from witnesses.

    His prediction was BS. He knew it was made up because he made it up.

    He has decided to play up the possibility of an arrest to raise money, attack DeSantis, and generally create chaos he can manipulate.
    ……….
    Will Trump get indicted? Who knows? Trump clearly doesn’t. He is just screwing with us, whipping up the hysteria.
    ……….

    Rip Murdock (d2a2a8)

  9. Rip Murdock (d2a2a8) — 3/29/2023 @ 9:41 am

    Manhattan Trump grand jury set to break for a month
    ………
    The grand jury, which heard testimony in the Trump case on Monday, isn’t meeting Wednesday and is expected to examine evidence in a separate matter Thursday, the person said. The grand jury, which typically meets Mondays, Wednesdays and Thursdays, is scheduled to consider another case next week on Monday and Wednesday, the person said, and isn’t expected to meet Thursday due to the Passover holiday.

    The following two weeks are set to be a hiatus that was scheduled when the grand jury was first convened in January, the person said.
    ……..

    Trump is trolling America.

    Rip Murdock (d2a2a8)

  10. If indictment is what Donnie wants, then by all means. Let’s give Donnie an indictment.

    As for that Hot Air piece, when hasn’t Trump lied, whipped up hysteria, and blamed everybody else for each and every thing that discontents him?

    Although, honestly, he really should not have listened to Melania when she told him endorse Mehmet Oz. (Yes, really, look it up, the orange freakshow blamed Melania for his endorsement of Oz when Oz lost.)

    nk (bb1548)

  11. As for that Hot Air piece, when hasn’t Trump lied, whipped up hysteria, and blamed everybody else for each and every thing that discontents him?

    I agree, but the fact that everyone took seriously his indictment claim without any consideration of Trump’s possible motivations shows how he has trolled America.

    Rip Murdock (d2a2a8)

  12. NY Grand Jury Considering Trump’s Fate Reportedly Set to Go On Month-Long Hiatus

    https://www.mediaite.com/news/just-in-ny-grand-jury-considering-trumps-fate-reportedly-set-to-go-on-month-long-hiatus/

    DCSCA (16b107)

  13. You haven’t established that Trump thought it was a crime…

    Irrelevant. Ignorance of the law is not an excuse.

    Paul Montagu (39aae7)

  14. You may want to read the case, Kevin.

    None of his supporters will. It’s too complicated and too much “inside lawyering.” They’ll just beleive whatever Tucker tells them.

    Prosecuting a former president is political. If you don’t understand that, you have no business in the room. This is too important to be left to lawyers.

    Kevin M (1ea396)

  15. UPDATE: Sounds like they did discuss my Substack analysis on the podcast, briefly:

    https://twitter.com/DavidAFrench/status/1641144863683903488

    I hope they hit on the point that it could be Cohen’s crime that Trump was trying to cover up.

    Patterico (d32f7b)

  16. Irrelevant. Ignorance of the law is not an excuse.

    Only if the law is written down and clear.

    Kevin M (1ea396)

  17. There is a flaw in your argument that Trump was trying to conceal Cohen’s crime:

    It assumes that Trump thought that Cohen was committing a crime that had to be concealed. You haven’t established that Trump thought it was a crime, only that Cohen and the prosecutor agreed it was a crime. To the contrary, Trump has consistently argued that his actions weren’t a crime (and that by extension Cohen’s actions with regards to the payment to Daniels weren’t also). Unless Trump thought that Cohen’s actions were a crime, then you have no motive.

    Well. I am not the prosecutor and I am not saying the potential case has no problems. I am saying Michael Cohen’s conviction rebuts the argument that the feds declined to charge the conduct that elevates the falsification of records to a felony under New York law.

    As for Trump knowing it’s a crime, I think I agree with you, Observer, and (it’s rare for me to say this) disagree with Paul Montagu regarding whether the New York prosecutors will have to show Trump knew that what he was trying to conceal was a crime. It is pretty common for the Supreme Court, at least for federal white collar crimes, to impose a requirement that the defendant knew he was violating a law. I guess the idea here is that many of the white collar crimes are not the kind of things that everyone knows is obviously criminal, like murders and robberies and rapes and the like.

    But I think there is evidence Trump knew it was a crime. After all, the John Edwards case was very famous. And it established for everyone who heard about it that there exists a statute criminalizing paying off women to hide a candidate’s affairs as a way of influencing the campaign. Did Trump ever hear of John Edwards’s case? One would guess yes! Fortunately we don’t have to guess. As I wrote in 2018:

    Now, Trump has a potential defense: I didn’t know it was illegal to secretly pay money to cover up a story about a mistress for the benefit of my campaign. His ignorance and stupidity would be a bonus here. What’s the problem with that defense? And that brings me to the second piece of evidence I want to mention. You know how they say “there’s a Trump tweet for everything”? Yeah.

    He @johnedwards is bad, but @andrewyoung is worse–not only is he a "rat" but it turns out he stole much of the money for himself.— Donald J. Trump (@realDonaldTrump) April 30, 2012

    Trump tweeted about the John Edwards case.

    He knew making this payment was for the benefit of his campaign, and he knew it was illegal. He directed his lawyer to make the payment, and now his lawyer is going to prison for it.

    Increasingly, it looks like Donald Trump belongs in prison as well.

    Alvin Bragg may have more, in the form of recordings with Michael Cohen, witness statements, and the like. But what we already know is highly suggestive.

    Patterico (6cc6cf)

  18. For example (from the post above):

    New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.”

    It is hard to understand how this could mean that “continuous” is not broken by each and every presence within the state (perhaps for a minimum time). For example I will be 35 years continuously sober next Monday. That does not mean that I can drink on weekends or New Year’s Eve and say I’m continuously sober.

    But the NY Courts managed to redefine “continuous” to mean “the sum of all non-continuous periods” and scribbled that in the margins of their lawbooks.

    Kevin M (1ea396)

  19. You may want to read the case, Kevin.

    None of his supporters will. It’s too complicated and too much “inside lawyering.” They’ll just beleive whatever Tucker tells them.

    Prosecuting a former president is political. If you don’t understand that, you have no business in the room. This is too important to be left to lawyers.

    You asked about the statute of limitations, Kevin. That’s a matter for lawyers and indeed the judge. It’s too important to be left to the non-lawyers.

    A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.”

    I would like to see their definition of “continuously”

    You quoted it and then said you’d like to see what you just quoted. DRJ responded to that odd request with a link. You are free to read the link or not. Instead you responded: “Prosecuting a former president is political. If you don’t understand that, you have no business in the room. This is too important to be left to lawyers.” That is both rude and does not remotely follow. It is inappropriate in every way it can be inappropriate.

    Patterico (d32f7b)

  20. @17: Oh, I think that Trump knew what he was doing was illegal in some way, but I very much doubt he knew (or cared) which laws he was breaking. I think, though, that there is a reasonable claim that the secretiveness of the scheme had to do with the reason the money was being paid. It does no good to openly pay hush money — it’s something that EVERYONE will lie about.

    And reasonable doubt, to a jury unwilling to apply their prejudicial beliefs about Donald Trump, should be easy to find.

    Again, some folks look at this as a legal or prosecutorial issue. It’s mostly not. It’s political and trying and succeeding is bad enough — making a martyr — failing would be terrible.

    Kevin M (1ea396)

  21. That is both rude and does not remotely follow. It is inappropriate in every way it can be inappropriate.

    It is a spin on Clemenceau and generals. Please, consider that your no-doubt correct legal judgement isn’t properly considering the political ramifications. This is a Rubicon you are crossing.

    Kevin M (1ea396)

  22. That is both rude and does not remotely follow. It is inappropriate in every way it can be inappropriate.

    It is a spin on Clemenceau and generals. Please, consider that your no-doubt correct legal judgement isn’t properly considering the political ramifications. This is a Rubicon you are crossing.

    Are we . . . still talking about the statute of limitations?

    Because that’s what you asked about. You have completely lost the thread.

    Patterico (d32f7b)

  23. KEVIN M: Weird question about the statute of limitations, where the answer is already contained within his question.

    DRJ: Here is a helpful link.

    KEVIN M: HOW DARE YOU LAWYERS BE LAWYERS! THIS IS A RUBICON YOU ARE CROSSING!!1!

    Patterico (d32f7b)

  24. If you want to make the point that people will see this as a political prosecution, have at it.

    That has nothing to do with DRJ trying to help you understand the statute of limitations issue, which you asked about, even though you quoted the answer in your very question.

    Patterico (d32f7b)

  25. I always viewed this blog as a place to discuss legal issues. Other issues, too, but mostly a place to get Patterico’s help understanding how the law applies in American current events.

    DRJ (00b52a)

  26. For example (from the post above):

    New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.”

    It is hard to understand how this could mean that “continuous” is not broken by each and every presence within the state (perhaps for a minimum time). For example I will be 35 years continuously sober next Monday. That does not mean that I can drink on weekends or New Year’s Eve and say I’m continuously sober.

    But the NY Courts managed to redefine “continuous” to mean “the sum of all non-continuous periods” and scribbled that in the margins of their lawbooks.

    That’s a fair argument. Here’s what the court said:

    The focus of the tolling provision of CPL 30.10 is “the difficulty of apprehending a defendant who is outside the State” (People v. Seda, 93 N.Y.2d 307, 312). Thus, all periods of a day or more that a nonresident defendant is out-of-State should be totaled and toll the Statute of Limitations.

    You’re free to disagree, but it’s ambiguous and a court made a call. That’s the law.

    Patterico (d32f7b)

  27. As for the NY State definition of “continuously” the begin with

    Our resolution of this case turns on the construction of the statutory phrase “continuously outside this state,” as applied to the facts at hand. The Criminal Procedure Law defines neither the term “continuously” nor the phrase “continuously outside this state”

    They then redefine the word to mean “piecewise” — which is pretty much the opposite of what it means, but was convenient for the court to gut the statute of limitations in this case.

    One should note that the crime could also be prosecuted as federal, and “bombing” would seem not to have a statute of limitations there. At least terrorism and arson do not.

    Now, the NY Court can make whatever rulings they like and they are binding in NY state, but that does not mean that I have to agree that they are just.

    Kevin M (1ea396)

  28. I’m not trying to come down hard on you, Kevin. It’s just that I thought your response to DRJ was inappropriate.

    Patterico (d32f7b)

  29. Now, the NY Court can make whatever rulings they like and they are binding in NY state, but that does not mean that I have to agree that they are just.

    Fair enough. You don’t.

    Patterico (6cc6cf)

  30. Irrelevant. Ignorance of the law is not an excuse

    You mean like the potential of between 10-40 million individuals who will become felons when they don’t register and pay the tax for the pistol braces the ATF approved in the first place?

    Individuals who made the purchase of a 100% legal firearm with a brace, and who don’t know about the rule change? Is that the kind of system you support…instant felons who own what are today legal and tomorrow illegal?

    “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” ― Ayn Rand

    No wonder there is a disagreement about Shakespeare’s quote from Henry IV, “The first thing we do, let’s kill all the lawyers.”, and what he meant.

    Horatio (d7c2ca)

  31. Are you hating lawyers today, Kevin? It comes across that way.

    DRJ (00b52a)

  32. Or is it about justice? Because American law isn’t really about justice, it is about due process.

    DRJ (00b52a)

  33. I guess Horatio hates lawyers.

    DRJ (00b52a)

  34. KEVIN M: HOW DARE YOU LAWYERS BE LAWYERS! THIS IS A RUBICON YOU ARE CROSSING!!1!

    Actually, what I said is that you are fighting a political problem with legal finery. Knives in a bazooka fight.

    The Rubicon thing is that you are advocating the prosecution of a former President, something that has not been done before despite good reason. Imagine the charges that could have been brought against Johnson. Your argument seems to be “He broke a law, and should therefore be charged” just as if he was not a former president.

    Now, “no man is above the law” is a nice phrase, but we both know it’s a bunch of, um, baloney. For example, Hillary should have been jailed for a decade for her blatant mishandling of TS material, but “no prosecutor would have made the charge” because she was a presidential candidate. It was too political to levy the obvious charges. Perhaps it would have been different if she had not been part of the ruling party, but that does not make it less political.

    There is a precedent that ex-presidents are not charged for crimes. Period. We look to break that precedent with Trump, but for things far more egregious than this picayune infraction. Like incitement to insurrection and seditious conspiracy, with a side of election tampering

    This thing just muddies the water and damages the presidency with what appears to many as pettiness.

    Kevin M (1ea396)

  35. Are you hating lawyers today, Kevin? It comes across that way.

    Well, this is a limited medium and it is easy to have false impressions. But no. What I dislike is the assumption that legal issues trump all else.

    There is a DANGEROUS man seeking the presidency and this case is likely to enable him to rally the troops. Even if he is jailed, or perhaps especially if he is jailed. It will freeze all opposition within the GOP and guarantee him the nomination. And if he wins, I expect extralegal behavior with the only restraint being impeachment.

    But keep the blinders in and focus instead on the interplay of state and federal law.

    Kevin M (1ea396)

  36. Wow.

    DRJ (a8e7f7)

  37. For example, Hillary should have been jailed for a decade for her blatant mishandling of TS material, but “no prosecutor would have made the charge” because she was a presidential candidate. It was too political to levy the obvious charges. Perhaps it would have been different if she had not been part of the ruling party, but that does not make it less political.

    She could have been prosecuted even after “the ruling party” lost the election.

    Rip Murdock (d2a2a8)

  38. guarantee him the nomination.

    It’s already in the bag.

    Rip Murdock (d2a2a8)

  39. Shortest: This case buries the lead.

    Kevin M (1ea396)

  40. How, if at all, do the reports (or rumors) earlier today that the NY grand jury is taking a two week, or up to a month, break from the Trump case affect the analysis that people have offered above? Does it mean the DA is getting cold feet, or perhaps waiting for additional evidence?

    FWIW, I read the NY case DRJ linked and find the holding confusing. If the limitations period for the crime in that case was 5 years, and it could be tolled for a maximum of 5 years by the defendant being continuously outside the state, then the charges had to have been brought within 10 years of the crime. But the court at one point seemed to indicate that the statute would not have been tolled during the 114, or maybe 219, days that the defendant claimed he had spent in NY over the relevant time period. Maybe my math is wrong, but if there was no tolling for 219 days then the indictment should not have been held to have been timely, but if only 114 days it would have been timely. But the court seemed to indicate that neither the 114 or 219 day period would impact the result, but in that case, why mention the statute that it was the defendant’s burden to prove the amount of time he had been in the state? Whatever — guess it’s fine as long as those who practice criminal law in NY understand the rule.

    RL formerly in Glendale (7a2d64)

  41. She could have been prosecuted even after “the ruling party” lost the election.

    It would still have been seen as political, and we are not a nation that holds political prisoners, at least not from major parties.

    Kevin M (1ea396)

  42. There is a DANGEROUS man seeking the presidency and this case is likely to enable him to rally the troops. Even if he is jailed, or perhaps especially if he is jailed. It will freeze all opposition within the GOP and guarantee him the nomination. And if he wins, I expect extralegal behavior with the only restraint being impeachment.

    If that is true then Trump is immune from all prosecution-Fulton County, January 6th insurrection, and trying to prevent/overturn the Electoral College count. I agree the NY case is a piker compared to the others, but the other cases will have the same effect of rallying the troops. Even if he is convicted of everything, he still can run for President and serve.

    As Trump said, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK? It’s, like, incredible.”

    Rip Murdock (d2a2a8)

  43. There is a DANGEROUS man seeking the presidency and this case is likely to enable him to rally the troops.

    When nearly 80% of Republicans consider themselves “MAGA voters” and 72% say Trump has had a positive influence on the Republican party, he has pretty much “rallied” everyone in his party. The other candidates are feeding on the scrapes from his table.

    Rip Murdock (d2a2a8)

  44. Rip (9:41 AM):

    Trump still has skills.

    Media needs to treat his claims like the man is George Santos and even statements against his apparent interest are probably lies. I mean, the man changed the media conversation to far better terrain.

    I plead guilty to being duped like everyone else. And I probably will be again.

    Appalled (42d131)

  45. @14. None of his supporters will. It’s too complicated and too much “inside lawyering.” They’ll just beleive whatever Tucker tells them. Prosecuting a former president is political. If you don’t understand that, you have no business in the room. This is too important to be left to lawyers.

    Politicizing the legal system is a rich nutrient that feeds populism to keep it rooting it deeper and deeper. If there was ever a POTUS who merited prosecution for criminal activities it was Richard Nixon. And he was named an unindicted co-conspirator by a Grand Jury in Watergate:

    JURY NAMED NIXON A CO‐CONSPIRATOR BUT DIDN’T INDICT 6/7/74

    ‘WASHINGTON, June 6—President Nixon was named last February by a Watergate grand jury as an unindicted co‐conspirator in the alleged attempt to cover up the Watergate burglary, his lawyer, James D. St, Clair, confirmed today.

    The disclosure, which had been closely guarded in secret court hearings on the case, completes the circle of conspiracy alleged in the indictment handed up March 1 by the grand jury and explains what was contained in the mysterious briefcase handed to Federal Judge John J. Sirica at that time…’

    https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html

    Still, he was pardoned on September 8, 1974, “pursuant to the pardon power conferred upon me [President Gerald R. Ford] by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” While the list of Nixon minions, aides and loyalists prosecuted and jailed for criminality in the wake of his criminality is gob smacking. 76 officials in the Nixon Administration were indicted; 55 convicted and 15 served prison sentences. – source, https://www.dailykos.com/stories/2017/1/11/1619079/-Comparing-Presidential-Administrations-by-Arrests-and-Convictions-A-Warning-for-Trump-Appointees

    Better people over the decades who have tried to nail Trump over the past 30 years in the NYC/state courts on everything from screwing over contractors and ad agencies to shady real estate deals to oversized flag poles and casino issues is virtually endless. And as POTUS, he was impeached. Twice. and his own party still couldn’t get him. So it’s a waste of time and resources trying to tack an indictment on him as he’s already shown, again, how he can manipulate the mere threat of it to his advantage in the media. He knows the game. Unless you’re NYC DA Alvin Bragg, whose name has been elevated into the national discourse as a player in the game. It’s publicity money can’t buy. And he’ll likely use that notoriety as a springboard to run for governor of NY, regardless of the GJ decision.

    The way to stop Trump is not in the courts, creating fuel for a martyr, but to start coalescing around a better candidate to run against him in the primaries. Lest we forget, though he won the EC count, he lost the popular vote to HRC, yet still rec’d more votes in 2020 than in 2016. Populism keeps growing. But as we saw in 2016, the GOP bench opposing him was thin, and may still be now. And for those who pray people are ‘tired of his act,’ remember Americans invited “his act” into their living rooms on ‘The Apprentice’ for FOURTEEN TV seasons.

    DCSCA (494c48)

  46. I argued that the relevant “federal criminal claims” could be the campaign finance charge against Michael Cohen,

    There is no campaign finance charge against Michael Cohen if Donald Trump isn’t also guilty. It must be coordinated and for the purposes of the election.

    Donald Trump disputes the facts admitted to in Michael Cohen’s guilty plea. And he has a witness (Michael Cohen’s one-time lawyer) who backs him up, although it could be that MC simply didn’t think of it when he said he had no crime of Donald Trump’s that he could offer that he could offer.

    Sammy Finkelman (1d215a)

  47. The timing of the payments–close to the election despite a years-old affair–are striking.

    That’s when Stormy Daniels was going to go public on it because it would be worth the most money to her.

    That doesn’t mean that Donald Trump’s motive in paying her off (which he denies agreeing to, and it would be mighty strange for DT to ask MC to lay out the cash *) had anything to do with his hopes of winning the election.

    * This was so close to the election it would not be reported before the election.

    Sammy Finkelman (1d215a)

  48. DRJ @7. Apparently all the days a defendant is not in the state (if more than one?) don’t count in the statute of limitations. This involved someone who was mainly not in the state but was present (according to him) m 114 days during 6 1/2 years at issue. He was continuously out of state for approximately 2,000 days combined. So said the court.

    Sammy Finkelman (1d215a)

  49. “continuous” was broken 114 (or maybe 219) times.

    His appearances in state were mostly unpredictable.

    Sammy Finkelman (02a146)

  50. Patterico (6cc6cf) — 3/29/2023 @ 12:12 pm

    Alvin Bragg may have more, in the form of recordings with Michael Cohen, witness statements, and the like.

    I think there are no recordings of Donald Trump agreeing with MC to make the payment to Stormy Daniels, and that absence is a significant fact.

    Sammy Finkelman (1d215a)

  51. Or is it about justice? Because American law isn’t really about justice, it is about due process.
    DRJ (00b52a) — 3/29/2023 @ 12:34 pm

    American law is about making everything about American law

    the law is almost irrelevant to whether this prosecution should proceed, but of course the lawyers don’t see it that way

    JF (0e9426)

  52. If that is true then Trump is immune from all prosecution-Fulton County, January 6th insurrection, and trying to prevent/overturn the Electoral College count. I agree the NY case is a piker compared to the others, but the other cases will have the same effect of rallying the troops.

    I disagree. Almost every one of his supporters will view the NY charges as trumped up. Even reasonable people think they’re stretched.

    Far fewer will see the Fulton County charges that way, and damn few will see sedition charges that way. In particular, the GOP will not rally around a convicted vote-stealer, insurrectionist or traitor.

    Kevin M (1ea396)

  53. * Even SOME reasonable people think they’re stretched.

    I thought that implied, but I see it might be missed.

    Kevin M (1ea396)

  54. Politics trumps law now.

    The GOP used to be a party that cared about laws but Trump and his fans have obliterated that. Even people like French and Isgur seem preoccupied by the political fallout, plus some here.

    DRJ (a8e7f7)

  55. “I think there are no recordings of Donald Trump agreeing with MC to make the payment to Stormy Daniels, and that absence is a significant fact.”

    C’mon, Sammy. If you believe hard enough, those additional recordings are real!

    Colonel Haiku (a1a963)

  56. There is no campaign finance charge against Michael Cohen if Donald Trump isn’t also guilty. It must be coordinated and for the purposes of the election.

    Campaign finance charges don’t necessarily require coordination. Simply donating an amount that exceeds the limit is a crime.

    Rip Murdock (d2a2a8)

  57. In particular, the GOP will not rally around a convicted vote-stealer, insurrectionist or traitor.

    They already have.

    Rip Murdock (d2a2a8)

  58. “I think there are no recordings of Donald Trump agreeing with MC to make the payment to Stormy Daniels, and that absence is a significant fact.”

    Pure speculation.

    Rip Murdock (d2a2a8)

  59. Kevin M (1ea396) — 3/29/2023 @ 2:52 pm

    If Trump is charged with sedition (which he won’t) or treason (ditto) don’t you think it will supercharge his supporters, even without a conviction? Being charged in NY, Fulton County, or by the DOJ will just allow Trump to claim his victimhood the more. It’s a win-win for him and his supporters. Any indictment will come in the middle of the campaign and will drive Trump and his supporters closer together.

    Rip Murdock (d2a2a8)

  60. “I think there are no recordings of Donald Trump agreeing with MC to make the payment to Stormy Daniels, and that absence is a significant fact.”

    Rip Murdock (d2a2a8) — 3/29/2023 @ 3:06 pm

    Pure speculation.

    No, informed speculation.’

    Michael Cohen secretly recorded many conversations he had with Donald Trump, and if he had recorded Trump agreeing to pay him back, wouldn’t we have heard about it? And if he expected to get the money back from Donald Trump, wouldn’t he have wanted some security for himself?

    I say, if there is no recording, that would be a significant fact.

    Sammy Finkelman (cacd71)

  61. This does play into the same thing we heard before from Trump when he characterized the Mueller investigation as (paraphrase follows) 28 Democrat Hillary donors. I remember someone here wondered aloud that Mueller might have done that way because an honest but partisan Democrat wouldn’t flinch at pursuing any of the leads. I disagreed with any assertion Andrew Weismann is/was honest, but other than that, it made some sense. We also talked a lot about how impeachment is a political exercise that is not the same as courtroom trial because the person presiding over the impeachment is partisan. Alvin Bragg is a partisan and was elected to be one.

    So, here we are again. Last time we did this Trump lost, but he also got 70 Million votes. 70 Million votes means despite impeachments, scandalous statements, investigations, Vindman’s, the negative drama Trump carries along, he still gained votes. There are at least a dozen versions of most old cautionary tales like the one where they say if you go after the King you need to knock the King out. So please don’t give me a wobbler of misdemeanor vs. no charges at all, give me a knock out. Problem is there isn’t one in this case, so if Trump runs to form, he will emerge stronger. Why? Are they all slack-jawed rubes? No. They are people who can picture themselves in Trumps place where the government really is out to get them.

    steveg (bf3fe7)

  62. Rip Murdock (d2a2a8) — 3/29/2023 @ 3:05 pm

    Campaign finance charges don’t necessarily require coordination. Simply donating an amount that exceeds the limit is a crime.

    But Michael Cohen didn’t donate. He separate expenditure, which he claimed was for purposes of influencing the election,

    Sammy Finkelman (cacd71)

  63. This charge is not only not a knockout, it’s a Mickey Mouse charge, as Alan Dershowitz has said.

    This is such an old expression, Google doesn’t recognize it. It was said of bringing minor technical infractions by someone in the military.

    Sammy Finkelman (cacd71)

  64. Sammy,

    Thank you for being interested in that legal issue. Different jurisdictions/states have different rules. That case was a New York rule. I am not a New York licensed lawyer but I will look later tonight and try to answer your question. We can explore it together.

    DRJ (a8e7f7)

  65. @57. They already have.

    Seems so. Fresh data from today:

    Fox News Poll: Trump’s lead grows in GOP primary race, now over 50% support

    Republican primary voters were read a list of 15 announced and potential candidates for the 2024 nomination and voiced their preferred choices.

    Former President Donald Trump has expanded his lead in the Republican primary race, while President Joe Biden continues to face uncertainty among Democratic primary voters, according to the latest Fox News national survey.

    Republican primary voters were read a list of 15 announced and potential candidates for the 2024 nomination. The survey, released Wednesday, finds Trump has doubled his lead since February and is up by 30 points over Ron DeSantis (54%-24%). Last month, he was up by 15 (43%-28%).

    No one else hits double digits. Mike Pence comes in third with 6%, Liz Cheney and Nikki Haley receive 3% each, and Greg Abbott comes in at 2%. All others receive 1% support or less, and just 3% are unsure…’

    https://www.foxnews.com/official-polls/fox-news-poll-trumps-lead-grows-in-gop-primary-race-now-over-50-support

    DCSCA (ca2d27)

  66. But Michael Cohen didn’t donate. He separate expenditure, which he claimed was for purposes of influencing the election,

    Sammy Finkelman (cacd71) — 3/29/2023 @ 3:23 pm

    As Patterico explained in his original post:

    Keep in mind that the payments don’t have to have been exclusively for campaign purposes. The intent need only include a motive to influence the election.

    Rip Murdock (d2a2a8)

  67. Politics trumps law now.

    This is your takeaway?

    Politics has always trumped law at some level, and not just recently. Go back to the Civil War and note how few Confederates were tried for treason. Eventually, they were all given amnesty but Andrew Johnson. Why? Because it was politically necessary.

    The pardon power itself, granted to governors and the president, demonstrates that the Law is not the end of matters. Prosecutors also have discretion, which means that they will not prosecute every crime they could. This is sometimes abused of course, such as with illegal aliens or the politically connected.

    To argue that Bragg should not attempt to prosecute Trump in this case is not to attack the Law, but to attack the idea that this is a good case to bring. Politically. You can say many things about Trump, but he has a keen understanding of group politics and he WANTS this case brought. It’s weak, it can be spun as petty, and win or lose, he comes out on top.

    Kevin M (1ea396)

  68. * by Andrew Jackson

    Kevin M (1ea396)

  69. * Johnson. Gah.

    Kevin M (1ea396)

  70. They already have.

    He’s been convicted?

    Kevin M (1ea396)

  71. Rip,

    Why don’t you just save us all time and post that anything I say you will contradict?

    Kevin M (1ea396)

  72. Rip,

    Why don’t you just save us all time and post that anything I say you will contradict?

    Kevin M (1ea396) — 3/29/2023 @ 4:14 pm

    I want to leave you guessing. You’re not entirely wrong, but when you are……

    Rip Murdock (d2a2a8)

  73. What has happened to Trump’s support in the Republican Party, while his legal (and ethical) problems continue to get massive coverage? It has declined:

    Unfavorable views of Trump have increased from around 1 in 10 Republicans to around 2 in 10 over that span, but nearly as significant is the movement from “strongly” favorable to merely “somewhat” favorable.

    And the movement has been steady.

    Note that this decline has occurred while many of those who dislike the loser have left the Republican Party.

    I predicted that decline, and I expect it will continue. (Which will make “Czar” Putin and “Emperor” Xi even more unhappy, though for different reasons.)

    The sooner Trump is sidlelined, the better for America and the free world. We have real problems, which we should be discussing, rather than the loser’s legal and psychiatric problems.

    Jim Miller (f29931)

  74. Politics trumps law now.
    The GOP used to be a party that cared about laws but Trump and his fans have obliterated that. Even people like French and Isgur seem preoccupied by the political fallout, plus some here.
    DRJ (a8e7f7) — 3/29/2023 @ 2:59 pm

    sorry, no

    French and Isgur made no mention of political fallout

    if a traffic cop tickets person A for speeding and lets person B go (who just happens to be a judge or politician or fellow cop), this is not a matter of what traffic law is, or whether the posted speed isn’t reasonable or whether the speed gun isn’t calibrated

    acknowledging that doesn’t require that someone not care about laws or only cares about political fallout

    if you care about laws, then selective enforcement should bother you

    JF (dd364f)

  75. You know, Kevin, that’s what I told Patton. “George”, I said, “don’t march on Berlin because it will rile Hitler’s supporters and they will all rise up in droves.”

    For crying out loud, Kevin, whom will Trump’s indictment(s) arouse who is not already dialed up to eleven? They are a horde of wild pigs gorged on locoweed and not doing anything will only embolden them in their rampage.

    nk (bb1548)

  76. Kevin M (1ea396) — 3/29/2023 @ 4:14 pm

    You mean like your contention that Trump has committed treason?

    Rip Murdock (d2a2a8)

  77. End Wokeness
    @EndWokeness
    A stunning split-screen today:
    Yellen testified that climate change is the existential threat of our time Saudi Arabia entered an alliance with China, Russia, India, Pakistan, and 4 central Asian nations to diminish the dollar.

    Colonel Haiku (a1a963)

  78. JF (dd364f) — 3/29/2023 @ 4:20 pm

    Why would French and Isgur care that Trump may be charged based on a “shaky theory of law” except politics? Are they legal purists who think no novel claims should ever be consudered, let alone brought? I doubt it. Plus with Patterico’s post and analysis, it probably isn’t even a “shaky theory.”

    DRJ (a8e7f7)

  79. That is bad, Colonel.

    DRJ (a8e7f7)

  80. Detailed Chronology of Trump-Cohen Hush Money Scheme
    ………..
    October 26, 2016:

    8:26 a.m.: “Cohen called Trump and spoke to him for approximately three minutes” (Cohen Warrant, p. 47)
    8:34 a.m.: “Cohen called Trump again and connected for a minute and a half” (Cohen Warrant, p. 47)
    9:04 a.m.: Cohen “emailed an incorporating service to obtain the corporate formation documents” for Essential Consultants LLC (Cohen Warrant, p. 47-48; Cohen Criminal Information, p. 15).

    Between 11:00 a.m. and 1:00 p.m.: Cohen opened an account for Essential Consultants LLC at the First Republic Bank in Manhattan. After opening the account, Cohen “drew down $131,000 from the fraudulently obtained HELOC [home equity line of credit, also held by Cohen at First Republic Bank],” and requested that it be deposited into the Essential Consultants account he had just opened (Cohen Warrant, p. 48; Cohen Criminal Information, p. 15).

    4:15 p.m.: A First Republic Bank employee confirmed that “the funds had been deposited into the Essential Consultants account” (Cohen Warrant, p. 49).

    October 27, 2016: At around 10:01 a.m., Cohen “completed paperwork to wire $130,000 from the Essential Consultants account” to Davidson’s attorney-client trust account at City National Bank in Los Angeles. On the paperwork, Cohen “falsely indicated that the ‘purpose of wire being sent’ was ‘retainer.’” This payment amounted to a contribution to the Trump campaign “in excess of the limits of the Election Act, which aggregated $25,000 and more in calendar year 2016” since it was made “in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign…to ensure that she [Clifford] did not publicize damaging allegations before the 2016 presidential election and thereby influence that election” (Cohen Warrant, p. 50; The New York Times; Cohen Criminal Information, p. 15, p. 19).
    ……….
    January 2017: Cohen sought “reimbursement for election-related expenses” from the Trump Organization. He presented company executives “with a copy of a bank statement from the Essential Consultants bank account, which reflected the $130,000 payment” made to keep Clifford “silent in advance of the election, plus a $35 wire fee. In handwriting, Cohen added another $50,000 as a “claimed payment for ‘tech services,’…related to work [he] had solicited from a technology company during and in connection with the campaign.” The Trump Organization executives “grossed up” the total $180,035 reimbursement request to $360,000 “for tax purposes,” then “added a bonus of $60,000” for a final total $420,000 payment to Cohen. They decided to make the payments “in monthly amounts of $35,000 over the course of twelve months,” for which Cohen would send invoices (Cohen Criminal Information, pp. 16-17; PBS and USA Today).
    ……….
    February 14, 2017: Cohen sent a Trump Organization executive (allegedly, Weisselberg) the first monthly invoice for his reimbursement payments. Cohen’s invoice requested $35,000 for January and $35,000 for February “[p]ursuant to [a] retainer agreement” for “services rendered.” Weisselberg “forwarded the invoice to another executive of the Company (“Executive-2”) the same day by email, and it was approved.” Weisselberg forwarded the approval email to another Trump Organization employee and instructed them,“Please pay from the Trust. Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description.” Accordingly, the Trump Organization “accounted for these payments as legal expenses,” though “[i]n truth and fact, there was no such retainer agreement” and Cohen’s invoices “were not in connection with any legal services he had provided in 2017.” The first check to Cohen for $70,000 was reportedly signed the same day by Weisselberg and Donald Trump Jr. (Cohen Criminal Information, p. 17; The Fixers, pp. 209–210; POLITICO; The New York Times).

    March 17, 2017: Donald Trump Jr. and Weisselberg signed a $35,000 check to Cohen (The New York Times).

    May 23, 2017: Trump himself signed a $35,000 dollar check to Cohen from his personal account. Trump ultimately signed six of the publicly known checks to Cohen (The New York Times).
    ………
    April 21, 2018: As some speculated whether Cohen would “flip“ and begin cooperating with government investigators against Trump, the president tweeted that “most people will flip if the government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that.” He described Cohen as a “fine person with a wonderful family.”
    ……..
    May 2, 2018: During a Fox News interview, Rudolph Giuliani (Trump’s new lawyer) acknowledged and described Trump’s repayments to Cohen for the hush money. Giuliani stated that “they funneled it [the $130,000 payment to Clifford] through a law firm, and the president repaid it” (The New York Times).
    ……..
    August 21, 2018: Cohen pleaded guilty in Manhattan federal court to charges including campaign finance violations and criminal tax evasion. Cohen told the judge that Trump had directed him to arrange the hush money payments, which he claimed were intended to prevent Clifford and McDougal from speaking publicly about their alleged affairs with Trump (The New York Times; Cohen Plea Press Release).
    ……..
    December 7, 2018: Federal prosecutors released Cohen’s sentencing memo. In its summary of Cohen’s crimes, the memo endorsed Cohen’s claims that Cohen had carried out both hush money payments “in coordination with and at the direction of” Trump (Cohen Sentencing Memo, pp. 2-4, 13-15).
    ……..
    May 6, 2021: In a split decision that fell along partisan lines, the FEC voted against investigating charges that Trump and his Committee had violated campaign finance laws in the process of making the 2016 Clifford payment and subsequent Cohen reimbursements. The dissenting commissioners noted: “We voted to support OGC’s recommendations to find reason to believe that Trump and the Committee knowingly and willfully accepted an excessive contribution from Cohen and a prohibited corporate or excessive contribution from the Trump Organization, that the Committee knowingly and willfully filed false disclosure reports, and that the Trump Organization knowingly and willfully made a corporate or excessive contribution through its reimbursements to Cohen. There is ample evidence in the record to support the finding that Trump and the Committee knew of, and nonetheless accepted, the illegal contributions at issue here”; “the Commission’s Office of the General Counsel (‘OGC’) recommended finding reason to believe that Cohen and the Trump Organization made, and Trump and Donald J. Trump for President, Inc. (the ‘Committee’) accepted and failed to report, illegal contributions.” (FEC Statement of Reasons).
    ………..

    Sources in parentheses, links to sources in article.

    Rip Murdock (d2a2a8)

  81. DRJ (a8e7f7) — 3/29/2023 @ 4:52 pm

    to me, political fallout means a concern that proceeding with the prosecution would make Trump more popular and increases his chances of becoming president

    concern about abuse of prosecutorial discretion is entirely not that, and those with that concern cannot be accused of not caring about the law

    JF (0e9426)

  82. @73. What has happened to Trump’s support in the Republican Party, while his legal (and ethical) problems continue to get massive coverage? It has declined…

    Except it hasn’t, per today’s data:

    Fox News Poll: Trump’s lead grows in GOP primary race, now over 50% support

    https://www.foxnews.com/official-polls/fox-news-poll-trumps-lead-grows-in-gop-primary-race-now-over-50-support

    DCSCA (3c3500)

  83. Who is Alvin Bragg? What to know about the Manhattan D.A. weighing charges against Trump

    ‘…Some, especially in New York City police unions, have slammed Bragg as being soft on crime. Just days after he was sworn in, Bragg sent out a memo to staff saying his office would not prosecute certain offenses, including marijuana misdemeanors, prostitution and fare evasion. He also said prosecutors wouldn’t seek prison time in certain types of criminal cases. Bragg said he wanted alternatives to incarceration for first-time offenders and people charged with certain robberies and assaults. “Criminals know that @ManhattanDA will bend over backwards to protect them, not law-abiding New Yorkers,” the Police Benevolent Association tweeted in June of 2022. Detectives’ Endowment Association president Paul DiGiacomo described Bragg as “a pro-criminal politician…”

    https://www.cbsnews.com/news/who-is-alvin-bragg-manhattan-district-attorney-trump-investigation/

    He’s politically motivated; not a good sell or look for “equal justice under the law.”

    DCSCA (3c3500)

  84. Bragg may bring these charges, but not anytime soon.

    Kevin M (1ea396)

  85. Could be. Trump is the Democrats’ biggest vote-getter. But I think it would be putrid and unpatriotic. We need to drain the poison.

    nk (5aaf45)

  86. 80 Link by Rip Murdock to JustSecurity chronology at
    https://www.justsecurity.org/85761/detailed-chronology-of-trump-cohen-hush-money-scheme

    October 26, 2016:

    8:26 a.m.: “Cohen called Trump and spoke to him for approximately three minutes” (Cohen Warrant, p. 47)

    8:34 a.m.: “Cohen called Trump again and connected for a minute and a half” (Cohen Warrant, p. 47)

    9:04 a.m.: Cohen “emailed an incorporating service to obtain the corporate formation documents” for Essential Consultants LLC (Cohen Warrant, p. 47-48; Cohen Criminal Information, p. 15).

    Cohen alleges a connection between his phone calls and his going ahead with the payments, but it might have been a last-ditch effort on the part of MC to get Trump to pay the money himself.

    Cohen should have taped (and presented to federal prosecutors) at least the second call, if, in that call, Trump agreed that Cohen should advance the money.

    There is no evidence that Trump agreed to reimburse him, nor any claim that he did, because there’s no tape, and because Cohen provided no evidence of him later using a claim that Trump agreed to reimburse him as an argument when he asked to be reimbursed.

    These are points that would puzzle detective Columbo:

    It is literally crazy for:

    1) Trump to ask Cohen to lay out the money.

    2) Cohen not to tape the request and agreement with Trump, or, if he did, not to produce it, or if he produced it for that to be kept secret all this time – and he had two chances.

    3) Cohen to lay out the money himself whether or not Trump agreed or did not agree to reimburse him.

    Yes, he most definitely paid the $130,000 to Stormy Daniels, but why?

    Something is missing from the story.

    Maybe Michael Cohen had promised Donald Trump that he could settle the Stormy Daniels matter for a much lower price – say $25,000 – and maybe he had even told him that he had settled it for that. And now he goes to Trump and says she wants more, and Trump refuses to pay more, and now Michael Cohen, afraid of losing Donald Trump as a client, pays the confidential settlement himself? I don’t know if that’s right. but it makes more sense than the other alternatives.

    It would also make Michael’s Cohen’s motive something other than his giving his all to elect Trump president. Why should he do that?

    Sammy Finkelman (1d215a)

  87. January 2017: Cohen sought “reimbursement for election-related expenses” from the Trump Organization. He presented company executives “with a copy of a bank statement from the Essential Consultants bank account, which reflected the $130,000 payment” made to keep Clifford “silent in advance of the election, plus a $35 wire fee. In handwriting, Cohen added another $50,000 as a “claimed payment for ‘tech services,’…related to work [he] had solicited from a technology company during and in connection with the campaign.” The Trump Organization executives “grossed up” the total $180,035 reimbursement request to $360,000 “for tax purposes,” then “added a bonus of $60,000” for a final total $420,000 payment to Cohen.

    Tax purposes means that Cohen wanted to be given enough money so that it would cover the income tax on the reimbursement.

    That explains something Donald Trump’s lawyer said on Meet the Press:

    https://www.nbcnews.com/meet-the-press/meet-press-march-26-2023-n1303816

    CHUCK TODD:

    But they called it legal funds. They called it legal fees. They claimed it was to pay a legal retainer.

    JOE TACOPINA:

    They were in fact, they were in — no, they didn’t say legal retainer. It was legal fees that was invoiced by Michael Cohen, who arranged this on his own, with his own money initially, took out a loan, literally, resolved this without the president knowing, came back and then sent a bill in for four times the amount.

    Four times $130,000 is $520,000, and Trump paid him $420,000, which is 3.23 times the amount, unless Joe Tacopina is counting still more money Cohen billed. Maybe Joe Tacopina made a mistake in arithmetic.

    Sammy Finkelman (1d215a)

  88. prohibited corporate or excessive contribution from the Trump Organization,

    Trump was the sole proprietor of the Trump Organization, so it was not embezzlement, nd it did not avoid income tax either, since Trump kept all his companies as a pass through corporations.

    Maybe you could have a business records argument in that it was not recorded as a payment to Trump. Some FEC commissioners held that it amounted to a corporate campaign contribution. But Trump maintained he never considered the payment to Stormy Daniels to be for campaign purposes on his part.

    Is he covering up Michael Cohen’s illegal campaign contribution?

    Only if he knew of it in advance, otherwise it was an independent expenditure.

    That is a fundamental dispute between Michael Cohen and Donald Trump.

    Sammy Finkelman (1d215a)

  89. There is no evidence that Trump agreed to reimburse him, nor any claim that he did, because there’s no tape, and because Cohen provided no evidence of him later using a claim that Trump agreed to reimburse him as an argument when he asked to be reimbursed.

    Then why did Trump write Cohen so many checks?

    March 17, 2017: Donald Trump Jr. and Weisselberg signed a $35,000 check to Cohen (The New York Times).

    May 23, 2017: Trump himself signed a $35,000 dollar check to Cohen from his personal account. Trump ultimately signed six of the publicly known checks to Cohen (The New York Times).

    Rip Murdock (d2a2a8)

  90. Here’s something interesting:

    December 2016: Pecker allegedly met with Trump at Trump Tower “to briefly offer his congratulations to the president-elect of the United States.”

    Before the meeting, Cohen reportedly asked Pecker “to urge Trump to pay Cohen more money,” especially given that Trump “hadn’t yet repaid his fixer for the Stormy Daniels deal.” Pecker apparently so urged Trump, but “Trump was unmoved. ‘You don’t know how much money he’s got,’ Trump said” (The Fixers, p. 197).

    The Fixers is the name of a book:

    The Fixers: The Bottom-Feeders, Crooked Lawyers, Gossipmongers, and Porn Stars Who Created the 45th President

    Sammy Finkelman (1d215a)

  91. There is no evidence that Trump agreed to reimburse him, nor any claim that he did, because there’s no tape, and because Cohen provided no evidence of him later using a claim that Trump agreed to reimburse him as an argument when he asked to be reimbursed.

    No evidence that Trump agreed to reimburse him before the payment was made.

    89. Rip Murdock (d2a2a8) — 3/30/2023 @ 12:19 pm

    Then why did Trump write Cohen so many checks?

    Oh, he agreed to reimburse him later on. I don’t know why. Maybe because Trump wanted to keep Cohen on as a lawyer.

    Cohen had to argue that he should be reimbursed. It wasn’t automatic.

    And he had to prove how much he had paid Stephanie Clifford.

    The installments were paid rather erratically, with Donald Trump sometimes signing personal checks to Michael Cohen.

    Sammy Finkelman (1d215a)

  92. 66.

    But Michael Cohen didn’t donate. He separate expenditure, which he claimed was for purposes of influencing the election,

    Sammy Finkelman (cacd71) — 3/29/2023 @ 3:23 pm

    Rip Murdock (d2a2a8) — 3/29/2023 @ 4:02 p

    As Patterico explained in his original post:

    Keep in mind that the payments don’t have to have been exclusively for campaign purposes. The intent need only include a motive to influence the election.

    I think the actual test is: Would the payments have been made even if there wasn’t an election coming up.

    But to be a campaign finance violation there must be a nexus with the campaign. Either it is made to a fund established by the candidate, or the candidate, or his campaign, must coordinate the spending with the spender.

    And this is exactly ehat Michael Cohen claimed:

    https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html

    He told a judge in United States District Court in Manhattan that the payments to the women were made “in coordination with and at the direction of a candidate for federal office,” implicating the president in a federal crime.

    “I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election” for president in 2016, Mr. Cohen said.

    Sammy Finkelman (1d215a)

  93. From Joe Tacopina on Meet the Press”

    … But if you let me answer, which is when Michael Cohen pled guilty, he said something that was so crucial to campaign finance law, and it’s what every expert has used. Even if you accept the word of a convicted perjurer, a liar, a guy who’s lied in every forum he’s ever been in, he said when he pled guilty that this was done for the benefit of the campaign and for personal embarrassment to the client and his family, including his young son, Barron. Once he said the end part, it takes it out of campaign finance law. It’s personal funds. It had to be used exclusively for the campaign.

    This is not the truth, but it is not illegal to pay off [people like Stormy Daniels] and has to fall into one category or the other. The (theoretical) test is: Would it have taken place even without the election coming up?

    Maybe to be a violation of law, it has to be clearly put in the wrong category. In this case it was the candidate who had the money, so there was no motive to have someone else pay, unlike as was the case with John Edwards. (where the defense was his contributor had personal affection and regard for John Edwards and wasn’t helping jst because of the election.)

    It’s like me buying a suit to go on the campaign so I could look better than if I had an old, raggy suit on. That’s a personal expenditure, it’s not a campaign expenditure.

    That’s the case if he keeps the suit or uses it for other purposes. Sarah Palin’s clothes were a campaign expense But she could not keep it without paying for it and so with all her family. Levi Keith Johnston wanted to keep some socks and had to pay for them.

    Even though it benefits the campaign, it’s not a campaign expenditure.

    The question is do the clothes have some other purpose? This is like the IRS deduction.

    So when Michael Cohen said it was both for personal and campaign uses or reasons, that takes it out of exclusively campaign finance law —

    It depends on whether or not it would/could have taken place anyway.

    CHUCK TODD:

    Alright.

    JOE TACOPINA:

    — and there is no crime. I’m telling you, Chuck, that’s the law on campaign finance.

    CHUCK TODD:

    Sammy Finkelman (1d215a)

  94. But to be a campaign finance violation there must be a nexus with the campaign. Either it is made to a fund established by the candidate, or the candidate, or his campaign, must coordinate the spending with the spender.

    Citation?

    Rip Murdock (d2a2a8)

  95. We’ll see how much of Patterico’s argument is in Trump’s indictment, which officially happened.

    Paul Montagu (8f0dc7)

  96. “I hope they hit on the point that it could be Cohen’s crime that Trump was trying to cover up.”

    I am not following this. If Cohen made the payment on Trump’s behalf what crime was Cohen committing?

    James B. Shearer (5f5f94)

  97. I am not following this. If Cohen made the payment on Trump’s behalf what crime was Cohen committing?

    The one he was convicted of?

    Patterico (91224a)

  98. “The one he was convicted of?”

    He pleaded guilty to 8 counts. One was making an excessive campaign contribution. But if the money was coming from Trump then Cohen wasn’t making a campaign contribution.

    James B. Shearer (a542cc)

  99. But if the money was coming from Trump then Cohen wasn’t making a campaign contribution.

    Until we see the indictment, we won’t know what crime(s) Trump is charged with, and what crime(s), if any, form the basis for a felony enhancement. So this whole exercise is pure speculation. But if speculate you must, the contribution you refer to may have been Cohen’s alone, it may have been Cohen’s and Trump’s, and it may have been Cohen’s, Trump’s and others’. Your mistake for starters is treating the money as the campaign contribution. It wasn’t. The money was part of a multi-transaction scheme that bought Stormy’s silence. That silence was the value to the campaign, so the silence was the contribution. Anyone who participated in procuring that silence could theoretically, if they had the requisite scienter, be culpable for the illegal contribution.

    lurker (cd7cd4)

  100. “… That silence was the value to the campaign, so the silence was the contribution. ..”

    That makes no sense. If the money was used to buy a bunch of yard signs the yard signs are the value to the campaign but the money is the contribution.

    James B. Shearer (a542cc)

  101. If the campaign receives money, then money is the contribution, whatever the campaign spends it on, whether it’s yard signs, tv ads, pillows, books, whatever. But if somebody gives the campaign yard signs, the yard signs are the contribution, not the money the donor uses to buy them. In this case no money was given, only Stormy Daniels’ purchased silence.

    lurker (cd7cd4)

  102. Assuming that New York courts read “unlawful means” broadly, Section 17-152 could supply the underlying “crime” that elevates falsification of business records to a Class E felony. That would essentially mean transforming two misdemeanors (falsifying business records plus conspiring to promote someone’s election through “unlawful means”) into a felony. Based on the same assumption, Trump also could face separate misdemeanor charges under Section 17-152 for the Daniels and McDougal payments.

    New York’s statute of limitations ordinarily requires that misdemeanors be prosecuted within two years and that Class E felonies be prosecuted within five years. But that law includes an exception for “any period following the commission of the offense during which…the defendant was continuously outside this state.”

    Trump lived largely in Washington, D.C., during his presidency, and in 2019 he switched his official state of residence to Florida. In determining whether the prosecution can proceed, a 1999 ruling by the New York Court of Appeals indicates, the time that Trump spent in D.C. and Florida should be subtracted from the time that has elapsed since the Trump Organization misrepresented Cohen’s reimbursement.

    Assuming that Bragg can get around the statute of limitations, the question remains: Why bring this case at all, let alone six years after the conduct underlying it?

    There was nothing inherently criminal about paying off Daniels or McDougal. Those payments become criminal only by construing them as illegal campaign contributions. Although that is how federal prosecutors interpreted the law in Cohen’s case, they conspicuously declined to charge Trump under the same theory. Manhattan prosecutors under Bragg’s predecessor for years mulled the possibility of building a state case based on the same conduct and ultimately decided it would not fly.

    Bragg’s reconsideration of that conclusion reeks of desperation to punish a reviled political opponent, which is exactly how Trump and his supporters are portraying it. When you decide to make history by prosecuting a former president, especially when that former president is seeking that office again by running against an incumbent who is a member of your own party, you had better have a solid case involving serious crimes. Bragg, who is relying on debatable facts, untested legal theories, and allegations that are tawdry but far from earthshaking, does not seem to have such a case.

    “We’re going to indict a former President for, essentially, misdemeanor falsification of business records?” asks former Rep. Peter Meijer (R–Mich.), who voted to impeach Trump after the Capitol riot in 2021. “We’re crossing the Rubicon for that? That seems like f—ing weak sauce.”

    When you’ve even lost NeverTrumper Peter Meijer…

    NJRob (eb56c3)

  103. Nero Wolfe: It’s a pickle.
    Archie Goodwin: Then why are you smiling?
    Nero Wolfe: The pickle.

    nk (bb1548)

  104. “…In this case no money was given, only Stormy Daniels’ purchased silence.”

    The money came from somewhere. If the money came from Trump then the person possibly making a campaign contribution was Trump. If Trump paid Cohen to research ballot access laws that isn’t a campaign contribution by Cohen.

    James B. Shearer (614b6e)

  105. What a tangled web we weavfe,
    Once we practice to covfefe.

    nk (bb1548)

  106. James B. Shearer (614b6e) — 4/1/2023 @ 6:12 am

    The Stormy Daniels payment came Cohen who was reimbursed by Trump. See here for a detailed chronology. Back in 2018, Rudy Giuliani confirmed the story.

    Rip Murdock (dd6105)

  107. “The Stormy Daniels payment came Cohen who was reimbursed by Trump. ..”

    So the money came from Trump. I suppose you could argue Cohen made a loan to Trump on such favorable terms that it amounted to a gift but that seems pretty thin to me.

    James B. Shearer (4de1ea)


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