Patterico's Pontifications

8/23/2023

Constitutional Vanguard: In Which I Once Again Stand Up for the New York Indictment of Donald Trump

Filed under: General — Patterico @ 8:03 am



I continue to demonstrate an exceptional sense of timing, by using the date of the first Republican primary debate to publish another giant legal piece on a Trump indictment . . . the Bragg indictment. What am I doing writing about this again? Well, I finally got around to reading the federal decision rejecting Trump’s efforts to permanently remove the case to federal court — and I found, to my delight, that the decision backs up my previous criticism of two key legal arguments advanced by critics of the indictment.

This is another marathon, with 5200 words of free content and 4100 words of paid content. I’ll warn you: it’s pretty heavy on the legal wonkery. The portion available to all addresses the argument that federal law preempts the crimes Bragg is charging.

The judge gives specific examples of state laws that have been found not to be preempted by FECA. In one case, the state of New York was allowed to bring an action against the directors of a corporation for using the corporation’s money to contribute to federal PACs. The court held that, even though there are laws about donations to federal PACs, New York nevertheless had an interest in making sure that the directors of a corporation “exercise sound judgment in the expenditure of corporate funds.”

In another case, state Attorneys General investigated a PAC for violating state consumer protection laws. The PAC used a combination of pre-checked boxes and fine print that tricked potential donors into making recurring donations that they did not intend to make. (This PAC is the same WinRed racket that peppers me with several texts a day. Probably you get the same texts. The death penalty is too weak a punishment for these people. But I digress.) The PAC sought to enjoin these state AG investigations, arguing that they were subject to FECA only, and that the state AGs had no business trying to investigate their relentless and dishonest scamming. No dice, said the Eighth Circuit. Because FECA preemption is narrowly construed, states can investigate violations of consumer protection laws even though a PAC is soliciting money only for federal elections. A different result would immunize WinRed “from many generally applicable state laws.”

A key factor in these decisions is the fact that the state statutes in question are laws of general applicability and not ones that specifically purport to regulate federal campaign finance issues. The judge cites a long line of cases that find no preemption when the state laws are “tangential to the regulation of federal elections.” These cases stand in contrast to cases involving state statutes that “regulate conduct specifically covered by FECA.” It is this latter category of cases in which preemption doctrine kicks in.

The portion for paid subscribers is probably the more fun of the two, and addresses the argument that Bragg has to show that Trump committed a federal campaign violation. This passage appears, although it serves as something of a teaser for the actual analysis:

When the judge says that “[t]he People need not establish that Trump or any other person actually violated NYEL § 17-152 or FECA,” there are two aspects to this statement: one simple, and one mindboggling.

The first aspect of the judge’s statement—a concept which I have argued before—is very straightforward and easy to understand: the prosecution doesn’t have to show that Trump himself committed a campaign finance violation (or any other crime) himself.

The mindboggling aspect is the claim is the claim that the prosecution doesn’t have to show anyone else committed that other crime either.

You even get a discussion of what the terms “actus reus” and “mens rea” mean. If this kind of legal geekery is your thing, then run, don’t walk, to the post itself. And subscribe here.

19 Responses to “Constitutional Vanguard: In Which I Once Again Stand Up for the New York Indictment of Donald Trump”

  1. Hi.

    Patterico (228f5a)

  2. I will read the essay. Can the trial court take judicial notice of the Cohen conviction? I will read it and see.

    I am still disappointed that Bragg did not indict Trump for the many Trump Organization crimes that Weisselberg plead guilty to. We can all agree that Weisselberg was the mastermind of the scheme but it is hard to imagine he did it without getting Trump’s approval. If Trump played no role in making his business profitable, Weisselberg should be the President.

    DRJ (d0b8eb)

  3. I am still disappointed that Bragg did not indict Trump for the many Trump Organization crimes that Weisselberg plead guilty to.

    He’d have to flip.

    Kevin M (ed969f)

  4. Weisselberg never flipped, true.

    DRJ (d0b8eb)

  5. I doubt Trump will try to overturn Hellerstein, and his ruling finally convinced me that it’s a real case.
    The stumbling block for me was Trump’s lack of federal indictment for the crime, when Cohen’s federal conviction was the actual threshold.

    Paul Montagu (d52d7d)

  6. The stumbling block for me was Trump’s lack of federal indictment for the crime, when Cohen’s federal conviction was the actual threshold

    I do not see Cohen’s conviction plea bargain as proof that a crime occurred. They may not have to prove that Trump committed a crime, but they have to prove, at a minimum, that he intended to cover up one. For that to be true, Trump had to at least believe that there was a crime to cover up.

    Maybe I’m wrong and all that has to happen is for Trump’s actions to have had the effect of covering up Cohen’s asserted crime, but a lack of knowledge or intent (or, in fact, a crime) would seem exculpatory in a fair regime.

    Kevin M (ed969f)

  7. The alternative explanation for Trump’s cover-up is that he intended to save face. Since this would be in character, Hanlon’s Razor works for Trump.

    Kevin M (ed969f)

  8. They may not have to prove that Trump committed a crime, but they have to prove, at a minimum, that he intended to cover up one. For that to be true, Trump had to at least believe that there was a crime to cover up.

    Yup, that is exactly the conclusion I come to in my piece. I think there is evidence of that.

    Patterico (904ac7)

  9. My favorite quote from Hellerstein’s decision denying Trump’s request to transfer the case to federal court:

    Hush money paid to an adult film star is not related to a President’s official acts.

    Rip Murdock (d2a2a8)

  10. Hush money paid to an adult film star is not related to a President’s official acts.

    Rip Murdock (d2a2a8) — 8/23/2023 @ 1:31 pm

    Who knew!

    Rip Murdock (d2a2a8)

  11. Hush money paid to an adult film star is not related to a President’s official acts.

    But is it a campaign expense?

    Trump is guilty if he thinks “I don’t want this sleazy campaign expense being found out”

    Trump is not guilty if he thinks “I don’t want this sleazy hush money payment being found out.”

    I guess they will have Cohen testify that the former was the case. I don’t know that 12 jurors will believe him.

    Kevin M (ed969f)

  12. I do not see Cohen’s conviction plea bargain as proof that a crime occurred.

    That makes no sense to me at all. He pled guilty to the specific crime and served time behind bars for it.
    As for Trump, ignorance of the law is not a valid defense.

    Paul Montagu (d52d7d)

  13. Kevin M (ed969f) — 8/23/2023 @ 2:48 pm

    Trump is guilty if he thinks “I don’t want this sleazy campaign expense being found out”

    Trump is not guilty if he thinks “I don’t want this sleazy hush money payment being found out.”

    It depends on whether or not Trump thought that what he covering up was a crime. And not just a crime, but a felony.

    It is arguable it was for Michael Cohen, if his motive was to help Trump get elected. It wasn’t for Donald Trump himself because Trump had other reasons.

    Not only that there is factual dispute in that Cohen says that Trump approved it and he hid it to help his campaign. (Cohen said this because he wanted to plead guilty to something in return for a reduced sentence, which I think he did not get)

    Trump will say (or his lawyer will) that he did not approve the payment in advance (because it was too much money) and did not tell Michael Cohen to pay with his own money. He had to be argued into reimbursing Cohen.

    I guess they will have Cohen testify that the former was the case. I don’t know that 12 jurors will believe him.

    Sammy Finkelman (1d215a)

  14. I guess they will have Cohen testify that the former was the case. I don’t know that 12 jurors will believe him.

    There us an important factual dispute here and there is evidence that the version Cohen told was not true.

    Sammy Finkelman (1d215a)

  15. That makes no sense to me at all. He pled guilty to the specific crime and served time behind bars for it.

    He did no such thing. He pled guilty to several crimes, one of which was evading millions in federal income tax. He served time for the lot, and most people would have served longer for the income tax evasion alone.

    Consider the possibility that the “election” crime he pled guilty to was there for the SOLE purpose of giving the special counsel a reason to be in the room, and being able to claim a conviction for his efforts. He may have even cut down the tax sentence as a reward for the election plea. Without that plea, he had no jurisdiction.

    Kevin M (ed969f)

  16. Paul, let’s say that you and I are in a business deal. On the side I am evading income taxes. You, otoh, are a person of interest to a special counsel.

    I agree with the special counsel that I will plead guilty to a manufactured charge that implies that you did something illegal, and I will get a reduced sentence on my tax case.

    Has anyone proved that you did anything illegal, or even that anything illegal happened?

    Kevin M (ed969f)

  17. I note that folks over at The Dispatch view the NY case as a banana-republic set of charges. None of them think that the NY case is worth the damage it will do. They are basically divided over the J6 charges in DC, thinking that the other two cases are sufficient and more solid.

    Interesting column by AllahNick.

    Kevin M (ed969f)

  18. Then again:

    I’m a conservative. I believe in incentives. Until recently, the incentives for and against trying to overthrow the government skewed lopsidedly in a dangerous direction. The criminal justice system has begun to correct that, belatedly.

    I’m so invested in deterrence that I’d be willing to trade the forms we’re currently pursuing for forms that don’t involve prosecution. If the Senate had convicted and disqualified Trump at his second impeachment trial, as it should have, that in itself would have taught a powerful lesson to future autocrats about the steep cost of power grabs. You may or may not lose your liberty if you try it but you’ll certainly lose your career in politics and whatever stature you had as a public figure.

    And so we return to Marco Rubio and the cowards in the Senate GOP caucus. As I see it, they all but forced the criminal justice system to try to hold Trump accountable when they refused to do so themselves.

    Now here they are, whining about it.

    Kevin M (ed969f)

  19. I agree with the special counsel that I will plead guilty to a manufactured charge that implies that you did something illegal, and I will get a reduced sentence on my tax case.

    Like I’ve said more than once, Kevin, I try to avoid hypotheticals as much as possible. I accept that Cohen pled guilty to the stated crimes because he committed them, and they were kosher enough to be signed off by the federal judge involved in the case.

    Paul Montagu (d52d7d)


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